Ascendant Services, LLC v. United States

In the United States Court of Federal Claims

No. 22-72 C

Filed Under Seal: May 16, 2022

Reissued: June 8, 2022 *

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ASCENDANT SERVICES, LLC, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant, *

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and *

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CAELUM RESEARCH *

CORPORATION, *

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Defendant-Intervenor. *

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W. Brad English, with whom were Jon D. Levin, Emily J. Chancey, Joshua B. Duvall, and

Nicholas P. Greer, Maynard, Cooper & Gale, P.C., all of Huntsville, AL, for Plaintiff.

Ioana Cristei, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of

Justice, with whom were Franklin E. White, Jr., Assistant Director, Patricia M. McCarthy,

Director, and Brian M. Boynton, Principal Deputy Assistant Attorney General, all of

Washington, D.C., for Defendant, and Captain Timothy M. McLister, Trial Attorney, U.S. Army

Legal Services Agency, of Fort Belvior, VA, of counsel.

Beth V. McMahon, ReavesColey, PLLC, of Chesapeake, VA, for Defendant-Intervenor.

*

Pursuant to the protective order entered in this case, this opinion was filed initially under seal. The parties

provided proposed redactions of confidential or proprietary information. In addition, the Court made minor

typographical and stylistic corrections.

OPINION AND ORDER

SOMERS, Judge.

On January 24, 2022, Plaintiff, Ascendent Services, LLC (“Ascendant”), filed a protest in

this Court challenging the United States Army’s award of an information technology, logistics,

and cybersecurity support contract to Defendant-Intervenor, Caelum Research Corporation

(“Caelum”). Plaintiff argues that the Army misapplied the solicitation’s key personnel

requirements and that other aspects of the Army’s evaluation were irrational.

On May 9, 2022, the Court issued an order denying Plaintiff’s motion for a permanent

injunction, explaining that Plaintiff failed to meet its burden to establish that it is entitled to an

injunction because, inter alia, the Army did not erroneously evaluate the solicitation’s key

personnel requirements and Plaintiff did not prove by a preponderance of the evidence that the

Army made any other prejudicial errors in its evaluation of the proposals. This opinion provides

the reasons behind the Court’s May 9th order, denies Plaintiff’s motion for judgment on the

administrative record, and grants the government’s and Defendant-Intervenor’s cross-motions for

judgment on the administrative record.

BACKGROUND AND PROCEDURAL HISTORY

On March 1, 2021, the Army issued solicitation number W91CRB-21-R-0017

(“solicitation” or “RFP”) seeking proposals for “a services contract to provide Information

Technology (IT), IT logistics, and cybersecurity support” at four Army installations: the Army

Test and Evaluation Command (“ATEC”) Headquarters; the Army Evaluation Center; the U.S.

Army Aberdeen Test Center; and the Operational Test Command at Fort Hood. AR 245, 249.

The solicitation informed offerors that services may also be required at other locations

“throughout the life of [the] contract.” AR 249. A crucial part of the awardee’s services would

be to support ATEC in its mission to relay essential information to soldiers on the battlefield

while performing technological operations testing. ECF No. 29-1 at ¶ 5; AR 249–50.

The solicitation provided that the Army would evaluate offerors’ proposals in two phases.

AR 340. The first phase filtered out offerors that lacked the requisite experience to meet the

solicitation’s requirements. Id. Of the twenty-four proposals submitted, twenty-one were

selected to move forward to the second phase of the evaluation. AR 8136–39, 8667, 8752. The

second phase consisted of a three-factor evaluation process to select the awardee: (1) Past

Performance; (2) Cost; and (3) Management Factor. AR 336–37.

Past performance required offerors to list and describe “recent and relevant contracts”

that had similar requirements to those of the solicitation. AR 339. Offerors received one of two

ratings under Past Performance:

Acceptable: Based on the offeror’s performance record, the Government has a

reasonable expectation that the offeror will successfully perform the required

effort, or the offeror’s performance record is unknown.

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Unacceptable: Based on the offeror’s performance record, the Government has

no reasonable expectation that the offeror will be able to successfully perform the

required effort.

AR 341.

With regard to cost, offerors were to submit a cost proposal detailing their costs on an

Excel spreadsheet. AR 337–38. Finally, offerors’ management approach, which was

significantly more important than cost, was rated on an adjectival scale:

Outstanding. Proposal meets requirements and indicates an exceptional approach and

understanding of the requirements. Strengths far outweigh any weaknesses. Risk of

unsuccessful performance is very low.

Good. Proposal meets requirements and indicates a thorough approach and

understanding of the requirements. Proposal contains strengths which outweigh any

weaknesses. Risk of unsuccessful performance is low.

Acceptable. Proposal meets requirements and indicates an adequate approach and

understanding of the requirements. Strengths and weaknesses are offsetting or will have

little or no impact on contract performance. Risk of unsuccessful performance is no

worse than moderate.

Marginal. Proposal does not clearly meet requirements and has not demonstrated an

adequate approach and understanding of the requirements. The proposal has one or more

weaknesses which are not offset by strengths. Risk of unsuccessful performance is high.

Unacceptable. Proposal does not meet requirements and contains one or more

deficiencies. Proposal is unawardable.

AR 341.

The Army evaluated offerors’ management approach on two elements. The first element

evaluated whether the offeror adequately provided responses in its proposal that met the

“requirements specified in the RFP” and the “extent to which each requirement has been

addressed in the proposal.” AR 342. The second element examined whether the offeror’s

approach was feasible: the “extent to which the proposed approach is workable and the end

results achievable,” the “extent to which successful performance is contingent upon proven

techniques,” and the “extent to which the offeror is expected to be able to successfully complete

the proposed tasks and technical requirements within the required schedule.” Id. The Army

rated components of offerors’ proposals for these evaluations based on the following:

Deficiency: A material failure of a proposal to meet a government requirement or a

combination of significant weaknesses in a proposal that increases the risk of

unsuccessful contract performance to an unacceptable level.

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Strength: Any aspect of a proposal when judged against a stated evaluation

criterion, enhances the merit of the proposal or increases the probability of successful

performance of the contract.

Weakness: A flaw in the proposal that increases the risk of unsuccessful contract

performance.

AR 211.

Of the twenty-one proposals that qualified for consideration in the second phase of the

evaluation, fourteen were rated “Unacceptable” under the Management Factor and were removed

from award contention. The Army rated the remaining seven offerors as follows:

Offeror Total Evaluated Management Past Performance

Price

Acceptable Acceptable

Good Acceptable

Acceptable Acceptable

Caelum $85,780,380 Outstanding Acceptable

Ascendant $88,012,684 Marginal Acceptable

Marginal Acceptable

Good Acceptable

AR 8815.

The Army awarded strengths and weaknesses for these seven offerors as follows:

Evaluation Caelum Ascendant

Result

Strengths 0 5 0 9 0 1 3

Weaknesses 0 0 0 0 3 5 2

AR 8754.

In an information packet dated July 23, 2021, the peer review board for the evaluation

recommended Caelum’s proposal as the best value to the Army and recommended awarding

Caelum the contract. The recommendation was based on Caelum’s proposal receiving nine

strengths, zero weaknesses, and it being the only offeror rated “Outstanding” under management

approach. AR 8663–92, 8766.

On July 26, 2021, the Army notified the other offerors of the decision to award the

contract to Caelum. AR Tab 90. Plaintiff and two other offerors filed size protests challenging

Caelum’s eligibility to be awarded the contract. AR Tabs 95–97. The Small Business

Administration (“SBA”) dismissed the size protests in a decision dated August 25, 2021. AR

9712–15. Plaintiff’s subsequent appeal to the SBA’s Office of Hearings and Appeals was denied

on December 2, 2021. AR 9760.

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On December 15, 2021, the Army notified Plaintiff that Caelum would be awarded the

contract. AR 10048. On January 13, 2022, the Army completed debriefing Plaintiff about the

award decision and provided responses to its questions. AR 10449; ECF No. 26 at 6 (“Pl.’s

MJAR”). Plaintiff filed the instant protest on January 24, 2022.

DISCUSSION

A. Legal Standard

The Tucker Act, as amended by the Administrative Dispute Resolution Act, provides the

Court of Federal Claims with “jurisdiction to render judgment on an action by an interested party

objecting to . . . the award of a contract or any alleged violation of statute or regulation in

connection with a procurement . . . .” 28 U.S.C. § 1491(b)(1). In such actions, the Court “shall

review the agency’s decision pursuant to the standards set forth in section 706 of title 5.”

28 U.S.C. § 1491(b)(4). Accordingly, the Court examines whether an agency’s action was

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

§ 706. Under such review, an “award may be set aside if either: (1) the procurement official’s

decision lacked a rational basis; or (2) the procurement procedure involved a violation of

regulation or procedure.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238

F.3d 1324, 1332 (Fed. Cir. 2001).

On the first ground, “courts have recognized that contracting officers are entitled to

exercise discretion upon a broad range of issues confronting them in the procurement process.”

Id. (citations and internal quotations omitted). Thus, the Court must “determine whether the

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

. . . and the disappointed bidder bears a heavy burden of showing that the award decision had no

rational basis.” Id. at 1332–33 (citations and internal quotations omitted). On the second

ground, “the disappointed bidder must show a clear and prejudicial violation of applicable

statutes or regulations.” Id. at 1333 (citation and internal quotation omitted). In the case of a

negotiated procurement, such as a “best value” procurement, the burden on a plaintiff of proving

an award was arbitrary, capricious, an abuse of discretion, or contrary to law is heavier than it is

in other protests. See, e.g., E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996);

Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 995 (Fed. Cir. 1996) (“This court . . . must

afford great deference to agencies’ decisions in relation to procurement.”).

Bid protests are generally decided on 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”). RCFC 52.1 requires that the Court “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 (Fed. Cir. 2005). “Unlike a motion for summary judgment, a genuine dispute of material

fact does not preclude a judgment on the administrative record.” Id. at 1355–56. Therefore, in

reviewing cross-motions for judgment on the administrative record, “the court asks whether,

given all the disputed and undisputed facts, a party has met its burden of proof based on the

evidence in the record.” Jordan Pond Co., LLC v. United States, 115 Fed. Cl. 623, 630 (2014).

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B. Plaintiff Fails to Demonstrate that the Army Misapplied the Solicitation’s Key

Personnel Requirements

In phase two of the evaluation, the Army rated offerors on an adjectival scale for their

management approach. AR 603. As part of their management approach, offerors were required

to propose three key personnel: one program manager and two project managers. AR 540–41,

598, 603. These three key personnel (as well as other non-key personnel) were required to have

certain relevant education and experience in accordance with the education/experience matrices

that the solicitation provided for each position. Failure to propose key personnel that met the

educational and experience requirements would result in a deficiency being assigned and, per the

solicitation, any proposal with one or more deficiencies was unawardable. AR 211, 341.

With regard to key personnel, Plaintiff asserts that Caelum should have been rated

“[u]nacceptable under the Management Factor and removed from the competition for failing to

propose key personnel with the required education and experience.” Pl.’s MJAR at 10.

Moreover, Plaintiff further asserts that three other offerors should also have been eliminated for

the same reason. Plaintiff’s argument rests on its interpretation of the education and work

experience the solicitation required for the program manager and two project manager positions,

as well as what it views as the Army’s misapplication of this requirement. See id. at 10–16. For

the reasons explained below, Plaintiff’s interpretation is unreasonable, contravenes the plain

meaning of the solicitation’s terms and, if adopted by the Court, would not only make Caelum,

, , and unacceptable, but would also make Plaintiff’s own proposed key

personnel unacceptable.

As referenced above, the solicitation provided an education/experience matrix for the

program manager position detailing the requisite years of experience an offeror’s proposed

program manager had to possess depending on the level of relevant education the individual has

completed. To satisfy the solicitation’s requirements, the program manager matrix provided as

follows:

Program Manager Education and Experience Requirement

Acquired Degree Experience Range

High School/GED ≥ 18 years

Associates directly related field AND ≥ 13 years

Bachelors in directly related field ≥ 11 years

Masters in directly related field ≥ 9 years

AR 647. In addition, in the text immediately following this matrix, the solicitation provided that

a proposed program manager must have “10 years leading 50 or more employees” and that

“[r]elevant education/experience must be in an IT discipline related to the assigned program area

(e.g., Network Engineering, Network Management, Computer Science, Information Systems,

Computer or Software Engineering, Management Information Systems, Computer

Forensics/Security, etc.) . . . .” Id.

A similar education/experience matrix detailed the requirements for the two project

manager positions:

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Project Manager Education and Experience Requirement

Acquired Degree Experience Range

High School/GED ≥ 13 years

Associates directly related field AND ≥ 11 years

Bachelors in directly related field ≥ 9 years

Masters in directly related field ≥ 7 years

Id. As with the program manager position, the text immediately following this chart contained

further requirements: “5 years experience leading 20 or more employees. Relevant

education/experience must be in an IT discipline related to the assigned program area (e.g.,

Network Engineering, Network Management, Computer Science, Information Systems,

Computer or Software Engineering, Management Information Systems, Computer

Forensics/Security, etc.).” Id.

Plaintiff takes issue with the Army’s interpretation of the following sentence, which

appeared in the requirements for both the program manager and project manager positions:

“Relevant education/experience must be in an IT discipline related to the assigned program area

(e.g., Network Engineering, Network Management, Computer Science, Information Systems,

Computer or Software Engineering, Management Information Systems, Computer

Forensics/Security, etc.).” According to Plaintiff, this language means that the required

“experience” for a proposed program manager had to be attained in “IT program management”

position(s) and, similarly, in “IT project management” for proposed project managers. Pl’s

MJAR at 14. Non-program or project manager experience cannot, according to Plaintiff, satisfy

the requirement. Under Plaintiff’s interpretation of the sentence, Caelum and three other offerors

should have been rated “unacceptable” and eliminated from competition because at least one of

each of their proposed key personnel did not meet the requirements.

The Army evaluators, however, interpreted this sentence as requiring proposed program

and project managers to have the requisite years of experience in an “IT discipline,” not

specifically as a program or project manager. Thus, under the Army’s interpretation, a proposed

program manager needed ten years of experience leading fifty or more employees in an IT

discipline and additional, but overlapping, experience in an IT discipline in accordance with the

education/experience matrix. The same was true for the proposed project managers, except the

required management experience was five years leading twenty or more employees.

Accordingly, for example, under the Army’s interpretation, a program manager who had an

associate degree in a directly related field would need at least eleven years of experience in an IT

discipline related to the assigned program area, of which at least ten years would need to have

been spent leading fifty or more employees.

After reviewing the parties’ arguments and reading the key personnel related provisions

in the context of the solicitation as a whole, it is clear to the Court that the Army correctly

applied the plain meaning of the solicitation’s terms in evaluating offerors’ proposed key

personnel. “Interpretation of the terms in a solicitation is a question of law over which this Court

exercises de novo review without deference to an agency’s interpretation.” CW Gov’t Travel,

Inc. v. United States, 154 Fed. Cl. 721, 733 (2021) (citing NVT Techs., Inc. v. United States, 370

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F.3d 1153, 1159 (Fed. Cir. 2004)). The interpretation of a solicitation’s terms begins with the

plain language of the document, see, e.g., Coast Fed. Bank, FSB v. United States, 323 F.3d 1035,

1038 (Fed. Cir. 2003) (en banc), which “must be given that meaning that would be derived from

the [solicitation] by a reasonably intelligent person acquainted with the contemporaneous

circumstances,” Metric Constructors, Inc. v. NASA, 169 F.3d 747, 752 (Fed. Cir. 1999) (internal

quotation marks omitted). “[A]ny subjective, unexpressed intent of one of the parties is

ineffective.” Sterling, Winchester & Long, L.L.C. v. United States, 83 Fed. Cl. 179, 183 (2008).

Furthermore, the solicitation at issue “must be considered as a whole and interpreted so as to

harmonize and give reasonable meaning to all of its parts.” NVT Techs., 370 F.3d at 1159. Such

an interpretation “is to be preferred over one that leaves a portion of the contract useless,

inexplicable, void, or superfluous.” Id. (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274

(Fed. Cir. 1991)).

To review, the disputed sentence reads as follows: “Relevant education/experience must

be in an IT discipline related to the assigned program area (e.g., Network Engineering, Network

Management, Computer Science, Information Systems, Computer or Software Engineering,

Management Information Systems, Computer Forensics/Security, etc.) . . . .” AR 647. This

sentence is straightforward. The education/experience matrix contained requirements for the

experience an individual needs to have, given the degree he or she holds. The base level of

experience was eighteen years for the program manager position and thirteen years for the

project manager positions. This base level experience applied to any person who did not have an

undergraduate or graduate degree in a “directly related field.” If a person had a degree in a

directly related field, then the required years of experience decreased. In addition, both positions

required a certain number of years of experience leading a certain number of people. Thus, the

purpose of the sentence is to make clear that for both the education and experience described in

the matrix and the number of years of experience leading a group of people, the education and

experience had to be in “an IT discipline” and that this IT discipline had to be “related to the

assigned program area.” The sentence then goes on to provide examples of types of IT

disciplines that qualify as related to the assigned program area. Although the IT disciplines

given as examples were the same for both the program manager and the project manager

positions, they varied for non-key personnel positions. See, e.g., AR 382–83 (for the role of

Cloud Engineer I, the “IT discipline” examples include “Computer Science, Computer

Information Systems, Computer/Software Engineering, Management Information Systems”).

For both the program manager and the project managers, the example IT disciplines

were: “Network Engineering, Network Management, Computer Science, Information Systems,

Computer or Software Engineering, Management Information Systems, Computer

Forensics/Security, etc.” Accordingly, if a program manager, for instance, had a bachelor’s

degree in history (an obviously unrelated field) and had eighteen years of experience in Network

Engineering, including ten years leading fifty or more people, this individual would satisfy the

solicitation’s requirement.

Ignoring the plain language of the solicitation, Plaintiff offers an alternative

interpretation. According to Plaintiff, the experience for a proposed program manager not only

had to be in an IT discipline but had to be as a program manager in that IT discipline. Plaintiff

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makes this same argument for the proposed project managers. There are several problems with

Plaintiff’s approach.

First, Plaintiff’s “argument” is not so much of an argument but more of a blanket

assertion. As pointed out above, contract interpretation begins with the language of the contract.

However, rather than spending time analyzing the language of the contract and attempting to

demonstrate how it supports Plaintiff’s interpretation, Plaintiff simply asserts that the relevant

experience for the program manager had to be in IT program management and the experience for

the project manager had to be in IT project management. Plaintiff then jumps from this assertion

directly into using its interpretation of the relevant education and experience sentence to attempt

to demonstrate why, from Plaintiff’s perspective, Caelum and three other offerors did not

propose key personnel that meet Plaintiff’s interpretation of the requirements. The problem with

this approach, among others, is that it disregards the plain language of the solicitation.

To begin with, Plaintiff’s assertion completely ignores the phrase “related to” in the

relevant sentence. Plaintiff argues that for the program manager, for instance, the “assigned

program area” is program manager. See, e.g., Pl.’s MJAR at 13 (“And, of course, his ‘assigned

program area’ is Program Manager.”). Fair enough, but the solicitation does not state that the

proposed program manager needs education/experience in the assigned program area; rather, it

states that the program manager needs education/experience in an “IT discipline related to the

assigned program area.” AR 647 (emphasis added). So even if Plaintiff is correct that the

assigned program area for the program manager is program management, it does not follow that

the only relevant education/experience must be program manager experience. Instead, the

relevant education/experience must be in an IT discipline related to the program manager

position. The same is true for the project manager positions.

Moreover, just in case there was any confusion as to which IT disciplines are related to

the program manager or project manager positions, the solicitation provides several examples:

“Network Engineering, Network Management, Computer Science, Information Systems,

Computer or Software Engineering, Management Information Systems, Computer

Forensics/Security, etc.” Id. Although this may appear to be a broad list, it makes sense that the

relevant IT experience for the three individuals who were going to manage a contract to provide

information technology, logistics, and cybersecurity support would be broad. Plaintiff does not

appear to take issue with the scope of the IT disciplines that will qualify, however. Rather,

Plaintiff’s interpretation essentially deletes the phrase “related to” from relevant

education/experience sentence in order to add a requirement that all IT experience had to be

experience as a program or project manager. While this interpretation would seem to aid

Plaintiff’s protest, it is not supported by the plain language of the solicitation.

The second issue with Plaintiff’s interpretation is that Plaintiff inexplicably only applies

it to modify the term “experience” in the relevant education/experience sentence. Plaintiff does

not use its interpretation to modify the term “education.” Thus, despite that fact that the sentence

states that “[r]elevant education/experience must be in an IT discipline related to the assigned

program area,” Plaintiff argues that it is only experience that must be in an IT discipline related

to the assigned program area. This defies linguistics. The two terms—joined by a slash—are

clearly modified in the same way. It cannot be that “experience” must be IT program or project

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management experience as Plaintiff posits, but that “education” does not also have to be

education in IT program or project management. The Court is unaware whether IT program or

project management education that fits Plaintiff’s interpretation even exists, which, if it does not,

would render the sentence as interpreted by Plaintiff unreasonable. But more importantly, if

Plaintiff’s interpretation is correct, its own proposed program manager would not have the

requisite experience on the relevant education/experience matrices. 1 In other words, Plaintiff’s

interpretation of the relevant education/experience sentence would make its own proposal

“unacceptable.” Therefore, even assuming the Army erred, which the Court does not so hold,

Plaintiff itself benefited from the Army’s error in the same way that Caelum and the other three

offerors did. Accordingly, if Plaintiff’s interpretation was correct, it would be barred from

raising this argument because Plaintiff actually benefitted from the alleged misinterpretation.

See, e.g., VS2, LLC v. United States, 155 Fed. Cl. 738, 768 (2021) (“The simple fact is that VS2

cannot now complain about Vectrus’s and the government’s interpretation of the Solicitation

when VS2 relied upon the very same interpretation when preparing its proposal.”).

Finally, Plaintiff’s interpretation would render the sentence in the program and project

manager requirements regarding management experience superfluous. But see NVT Techs., 370

F.3d at 1159 (holding that an interpretation that “harmonize[s] and give[s] reasonable meaning to

all of its parts. . . . is to be preferred over one that leaves a portion of the contract useless,

inexplicable, void, or superfluous”). As noted above, the requirements for the program manager

position included “10 years leading 50 or more employees,” and for the project manager

positions, “5 years leading 20 or more employees.” Read in context, these requirements for the

program and project managers were clearly intended to be the management experience

requirement for the positions, not the relevant education/experience sentence that follows as

Plaintiff suggests. Rather, as explained above, that sentence sets forth the required IT

education/experience. Given that the solicitation lists fifty-six specific positions that must be

filled, see AR 632–53, it would make sense that the program manager would need experience

managing fifty or more employees. Yet, under Plaintiff’s interpretation, apart from needing ten

years of experience managing fifty or more employees, the remainder of the supposedly

“necessary” program manager experience could literally be attained managing zero employees so

long as the proposed program manager’s resume contains jobs with descriptions containing

words like “managing” or “leading.” See Oral Argument at 21:03–27:14, Ascendant Serv. LLC

v. United States et al., (April 13, 2022) (No. 22-72). Such an interpretation is unreasonable.

In sum, the solicitation is clear on its face. A proposed program or project manager

needed experience in an IT discipline related to the assigned program area, including “10 years

1

Under the plain meaning of the solicitation (the interpretation the Army applied), it is clear that

Ascendant’s proposed program manager is qualified. However, under Ascendant’s proposed

interpretation, the individual lacks the required “IT program management” experience for the education

he received. Under Ascendant’s interpretation of the requirement, its proposed project manager only has

a little more than twelve and a half years of IT program management experience listed on his resume.

However, because he does not have a degree in IT program management as a linguistically consistent

application of Ascendant’s interpretation would require, Ascendant’s proposed program manager would

be required to have at least eighteen years’ worth of IT program manager experience, which he does not

have according to his resume.

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leading 50 or more employees” or “5 years leading 20 or more employees” depending on the

position. The Army evaluated proposed key personnel consistent with this meaning; therefore,

Plaintiff’s key personnel argument fails.

C. Only if the Court Finds in Its Favor with Regard to Key Personnel Does Plaintiff

Asserts Prejudice with Regard to the Evaluation of the Management Factor

In order to be successful in a bid protest, a protestor must establish prejudice twice. First,

it must establish prejudice as part of the standing inquiry. Myers Investigative & Sec. Servs. v.

United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002) (“[P]rejudice (or injury) is a necessary

element of standing.”). Although Plaintiff only briefly addressed its standing to protest the

award in its complaint, Compl. §§ 5–6, Plaintiff’s standing was not questioned by either

defendant, and it appears obvious that if Plaintiff were successful on all of its challenges to the

Army’s evaluation it would have a substantial chance of award and thus the prejudice threshold

for standing purposes has been satisfied. Second, a protestor must also establish prejudice as

part of its case on the merits in order to prove that “an adjudged violation of law warrants setting

aside a contract award.” Bannum, Inc. v. United States, 404 F.3d 1346, 1357 (Fed. Cir. 2005). It

is this second prejudice inquiry to which the Court now turns.

On the merits of a bid protest, it is not enough to show that an agency has stepped out of

bounds; rather, a protestor must further show that the offending agency’s conduct prejudiced it.

See, e.g., CW Gov’t Travel, 154 Fed. Cl. at 736. There is no presumption of prejudicial error,

even in cases where the agency’s action was irrational. Sys. Studies & Simulation, Inc. v. United

States, 22 F.4th 994, 998 (Fed. Cir. 2021) (“We hold that there is no presumption of prejudice

when a protestor demonstrates irrationality in an agency decision. The protestor must show

prejudice under the usual standard.”). Instead, the analysis is one based in the doctrine of

harmless error: “the requirement of proving prejudice prevents an unsuccessful bidder from

overturning a contract award due to a harmless violation of a statute or regulation on the part of

the government.” TRW Env’t Safety Sys., Inc. v. United States, 18 Cl. Ct. 33, 67 (1989).

Therefore, “non-prejudicial errors in a bid process do not automatically invalidate a

procurement.” Labatt Food Serv. v. United States, 577 F.3d 1375, 1380 (Fed Cir. 2009). A

finding of a prejudicial error requires that “[t]he correction of [the] error must yield a different

result in order for that error to have been harmful and thus prejudice a substantial right of a

party.” Am. Relocation Connections, LLC v. United States, 789 F. App’x 221, 228 (Fed. Cir.

2019) (internal quotations and citation omitted). In other words, a plaintiff must “show that there

was a ‘substantial chance’ it would have received the contract award but for the [agency’s] errors

in the bid process.” Bannum, 404 F.3d at 1358 (citations omitted).

There is no doubt Plaintiff has established that if the Court agreed with Plaintiff’s

argument regarding key personnel and all of its arguments on additional errors the Army

allegedly committed during the evaluation of the management factor, Plaintiff would have a

substantial chance of being awarded the contract. On its key personnel argument, had Plaintiff

been successful, it would have eliminated four of the seven offerors leaving only two offerors in

addition to Plaintiff in the competitive range. Plaintiff then argues that with the two remaining

offerors being awarded no strengths and no weaknesses, if it successfully removed its own

weaknesses and received the five additional strengths it was entitled to, it would have a

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substantial chance of being awarded the contract. However, Plaintiff makes no argument as to

how it would be prejudiced by the other errors it alleges with the Army’s evaluation of the

management factor, if it falls short on its key personnel argument. In fact, at oral argument

counsel for Plaintiff acknowledged that if the Court decided against it on key personnel, as a

practical matter, Plaintiff’s case was probably over. Oral Argument at 1:53:29, Ascendant Serv.

LLC v. United States et al., (April 13, 2022) (No. 22-72) (during oral argument, the Court asked:

“But if I disagree with you on key personnel, I think the case is over, is it not?” to which counsel

for Plaintiff responded: “Practically, probably so.”). This acknowledgment also appears in

Plaintiff’s reply brief:

It goes without saying that Ascendant’s chances of award increase if more than

one-half of the eligible bidders are suddenly (and correctly) deemed ineligible.

That alone meets the substantial chance test. Then, these evaluation errors that

the Agency and Caelum so quickly dismiss become critically important.

Pl.’s Reply at 24 (emphasis added). In other words, according to Plaintiff, only if Caelum and

the three other offerors are eliminated from competition do the alleged errors with the

management factor evaluation come into play. This is also clear from the structure of the

prejudice argument in Plaintiff’s opening brief in support of its motion. See Pl.’s MJAR at 34

(“With Caelum, , and removed from the competition, Ascendant,

and would have been the last under consideration. and each had zero

strengths and zero weaknesses. . . . As the Management factor was significantly more important

than cost (AR602), the Agency would have weighed Ascendant’s high rating against the two

remaining offerors’ Acceptable ratings.”) (emphasis added).

Accordingly, it is clear from Plaintiff’s briefing and Plaintiff’s counsel’s

acknowledgement at oral argument that Plaintiff is only raising the additional alleged errors in

the evaluation of the management factor: (1) to strengthen its case for prejudice vis-à-vis the two

offerors that would remain in the competition if Plaintiff were successful in its key personnel

argument; and (2) to have the Court order corrective action on these alleged errors if corrective

action were ordered because its key personnel argument was successful.

In short, Plaintiff has not offered an argument as to how its alleged errors with the

management factor evaluation caused prejudice absent success on its key personnel argument.

The burden, however, falls on Plaintiff not only to demonstrate that the agency acted in a manner

that was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,

but additionally to establish that the agency’s actions prejudiced Plaintiff. Therefore, although

the Court usually first examines whether the agency erred and then, if an error is established,

looks to see whether the error caused prejudice, with regard to the alleged errors with the

evaluation of the management factor, because Plaintiff failed to argue (much less establish)

prejudice (absent success on its key personnel argument), the Court need not address the

remainder of Plaintiff’s arguments regarding the Army’s evaluation of the management factor to

deny Plaintiff’s motion for judgment on the administrative record.

Moreover, even if Plaintiff had argued that it was prejudiced by the Army’s alleged

improper evaluation of the management factor, without eliminating Caelum from the

12

competition, it is unlikely Plaintiff would have been able to prove prejudice. Even assuming

Plaintiff were able to prove that, but for the Army’s alleged errors, its rating on the management

factor would likely have been on equal footing with Caelum’s, it still would have to establish

that there was a substantial chance the government could rationally justify paying over

$2,000,000 more for equally rated proposals. Without removing Caelum from the competition or

challenging most of Caelum’s assigned strengths, even if Plaintiff were successful in arguing that

it should have been rated equal to Caelum, it is nearly impossible to conceive that in a best value

procurement an equally rated proposal with an over $2.25 million price premium would be

selected over an equally rated proposal. AR 8765 (“Paying $2 million more for an inferior

proposal is not necessary.”). Had Caelum and Plaintiff been equally rated on the management

factor and the Army awarded the contract to Plaintiff for its more costly proposal, there likely

still would have been a bid protest filed but Ascendant rather than Caelum would have been

sitting at the table with the government in the courtroom. The Court suspects this is why

Plaintiff did not argue that it was prejudiced by the other alleged errors in the management factor

evaluation absent removing Caelum from competition.

D. Even Assuming Plaintiff Had Asserted that Errors in the Management Approach

Alone Prejudiced It, Plaintiff’s Disparate Evaluation Claim Would Nonetheless Fail

Had Plaintiff argued that the alleged errors in the evaluation of its management approach

prejudiced it—which it did not—Plaintiff would nonetheless fail to prove that its proposal and

Caelum’s were “substantively indistinguishable” enough such that the Army’s allegedly

erroneous assignment of weaknesses (or failure to assign strengths) would constitute disparate

treatment. In short, Plaintiff fails to meet its burden on its disparate evaluation claim.

To prevail on a disparate evaluation claim, a protestor must show either that the agency

unreasonably evaluated aspects of its proposal that were “substantively indistinguishable or

nearly identical [to] those contained in other proposals,” Off. Design Grp. v. United States, 951

F.3d 1366, 1372 (Fed. Cir. 2020) (citing Enhanced Veterans Sols., Inc. v. United States, 131 Fed.

Cl. 565, 588 (2017)), or that “the agency inconsistently applied objective solicitation

requirements between it and other offerors, such as proposal page limits, formatting

requirements, or submission deadlines,” id. (citing Sci. Applications Int’l Corp. v. United States,

108 Fed. Cl. 235, 272 (2012)). Only if a protestor meets one of these two thresholds can the

reviewing court “comparatively and appropriately analyze the agency’s treatment of proposals

without interfering with the agency’s broad discretion in these matters.” Id. at 1373. With

regard to the first threshold, the substantially indistinguishable standard is important, because

unless two (or more) proposals are substantively indistinguishable, the Court could exercise “free

reign to second-guess the agency’s discretionary determinations underlying its technical ratings,”

which “is not the court’s role.” Id. (citing E.W. Bliss Co. v. United States, 77 F.3d 445, 449

(Fed. Cir. 1996)). In other words, if a protestor fails to demonstrate that the proposals at issue

are “indistinguishable for purposes of the evaluation, then the exercise instead crosses the line

and involves the second guessing of ‘minutiae.’” Enhanced Veterans Sols., 131 Fed. Cl. at 588

(quoting E.W. Bliss Co., 77 F.3d at 449). Challenges to “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., 77 F.3d at 449.

13

Rather, “[s]uch subjective judgments will only be disturbed when inconsistencies are

demonstrated.” USfalcon, Inc. v. United States, 92 Fed. Cl. 436, 462 (2010).

Before addressing the merits of its claims, Plaintiff begins its disparate evaluation

argument by asserting that the “substantively indistinguishable” standard described in Office

Design Group only applies to the Court’s review of assigned deficiencies. Pl.’s MJAR at 17.

For analyzing the assignment of strengths and weaknesses, Plaintiff argues, the Court should

instead use a “treated differently” standard. Id. (citing BayFirst Sols., LLC v. United States, 102

Fed. Cl. 677, 690–691 (2009) and Aero Corp. S.A. v. United States, 38 Fed. Cl. 739, 769 (1997)).

The Court declines to follow Plaintiff’s misreading of the law. The “substantially

indistinguishable” standard applies here, just as it does to all disparate evaluation claims.

First, although Plaintiff is correct that the key quote in Office Design Group mentions

“deficiencies,” both Office Design Group itself and the main case it cites, Enhanced Veterans

Solutions, were not about deficiencies per se. In fact, Office Design Group did not even involve

an adjectival rating system in which deficiencies were awarded; rather, the agency there

evaluated proposals using a point system. See Office Design Group, 951 F.3d at 1371. 2

Moreover, the section of Enhanced Veterans Solutions cited in Office Design Group involved the

awarding of strengths. The plaintiff there alleged “[t]hree specific examples . . . to demonstrate

. . . alleged disparate treatment, as [the plaintiff] contends it did not receive strengths for similar

qualities and elements that warranted strengths in the evaluations of other offerors.” Enhanced

Veterans Sols., 131 Fed. Cl. at 588 (emphasis added). Much like Plaintiff has in this case, the

plaintiff in Enhanced Veterans Solutions “contend[ed] that if it had received these strengths, its

Operational Approach would have received a Good rating and its Management Approach would

have received an Outstanding rating.” Id. (emphasis added).

Second, Plaintiff’s proposed reading of Office Design Group to apply only to deficiencies

makes little sense if one thinks of what a deficiency really is. It is the lowest rating on a scale

that usually permits the assignment of strengths (generally when a proposal shows some value

added, increased merit, or increased chance of successful performance), no rating (generally

when a proposal meets minimum requirements), weaknesses (generally a flaw in the proposal

that increases the chances of unsuccessful performance), and deficiencies (generally material

failures to meet requirements or a combination of significant weaknesses that increase the chance

of unsuccessful performance). Given this scale from which deficiencies are usually assigned,

why would the Court analyze the allegedly erroneous assignment of a deficiency any differently

than it would a strength or a weakness? Aside from a single quote from Office Design Group,

Plaintiff offers no principle to support its reading of the caselaw. Yet, a strength and a

deficiency are just different sides of the same coin, and a weakness is often akin to a lesser

deficiency. Plaintiff offers nothing to address this fact.

2

More recently, the Federal Circuit indicated that had it needed to reach the issue, it would have

used the “substantively indistinguishable” standard to address a disparate treatment claim regarding an

agency’s alleged failure to assign various strengths. See WellPoint Mil. Care Corp. v. United States, 953

F.3d 1373, 1380–82 (Fed. Cir. 2020) (finding that, even if the court accepted the plaintiff’s arguments

regarding unequal treatment in failing to credit the plaintiff certain strengths, the errors lacked prejudicial

effect).

14

Moreover, the inquiry on a disparate evaluation claim is the same whether the disparate

evaluation involves a strength, weakness, or deficiency: the Court is examining whether there is

something in the protestor’s proposal that is different from one or more other proposals that is

rated higher. And the analysis of whether something is actually different between proposals,

examines whether the proposals do, in fact, have real differences (such that the agency’s

evaluation was rational) or whether the proposals are “substantively indistinguishable” (such that

the agency’s disparate evaluation was irrational). In other words, it makes no difference in this

type of analysis whether the Court is looking at strengths, weaknesses, deficiencies, or something

else entirely. This is perhaps why, as Defendant-Intervenor correctly points out, multiple judges

on this Court have applied the substantively indistinguishable standard to a variety of disparate

evaluation claims rather than exclusively applying the standard to challenges of deficiencies

alone, as Plaintiff suggests. See ECF No. 28 at 9 (“Caelum’s Cross-MJAR”) (collecting cases).

Accordingly, in analyzing Plaintiff’s disparate evaluation claim, the Court will look at

whether Plaintiff’s proposal and Caelum’s proposal were, in fact, substantively indistinguishable

with regard to the weaknesses and strengths Plaintiff raises. With those guardrails in place, the

Court now analyzes the merits of Plaintiff’s disparate evaluation claims.

1. Challenged Weaknesses Assigned to Plaintiff

In evaluating the management factor, the Army assigned Plaintiff three weaknesses. Of

those three assigned weaknesses, Plaintiff challenges two in this bid protest: (1) Plaintiff’s failure

to explain how it planned to mitigate risks it identified in its proposal; and (2) Plaintiff’s proposal

to use incumbent personnel , and its failure to explain how it would staff all

of the installations for which IT support is required. 3 AR 10156–57.

With regard to the first challenged weakness, Plaintiff’s counsel conceded at oral

argument that this weakness was properly assigned. Oral Argument at 1:44:13–1:44:19,

1:45:05–1:45:13, Ascendant Serv. LLC v. United States et al., (April 13, 2022) (No. 22-72)

(during oral argument, Plaintiff’s counsel stated, regarding the weakness assessed for failure to

mitigate risk: “I can see some internal comments in a chart where [Ascendant] is mitigating

risks.” To which the Court inquired: “Was that enough for the weakness though?” To which

counsel answered that “it was appropriate to give Ascendant a weakness for highlighting a risk,

and not, professing to not mitigating it, as they’ve got the internal comments in it . . . .”). 4 This

3

At no point in its briefing did Plaintiff challenge the weakness it was assigned for failing to

describe in detail its plan for video teleconferencing support.

4

During this exchange, Plaintiff’s counsel attempted to raise for the first time that these two

weaknesses were assigned for the same issue. Besides being incorrect, this argument has been waived as

it does not appear in Plaintiff’s motion for judgment on the administrative record (nor its reply brief, for

that matter). Novosteel SA v. United States et al., 284 F.3d 1261, 1274 (Fed. Cir. 2002); Johnson v.

United States, 156 Fed. Cl. 385, 392 (2021). Moreover, the argument is incorrect. Although the

identification of the risk of using staff impacted two different areas of the evaluation

of Plaintiff’s proposal and, at least in part, contributed to the assignment of two weaknesses, this was not

the assignment of two weaknesses for the same error. It just so happens that one paragraph in the chart

revealed two problems with Plaintiff’s proposal. Plaintiff received one weakness for proposing to use

staff (a

personnel problem) and for failing to address how it was going to staff at least three of the four required

15

concession was for good reason—it appears that the portion of Plaintiff’s proposal for which this

weakness was assigned is actually draft language left in the proposal by mistake. AR 1623; see

also KSC Boss All., LLC v. United States, 142 Fed. Cl. 368, 382 (2019) (“‘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 Structural Assocs., Inc./Comfort

Sys. USA (Syracuse) Joint Venture v. United States, 89 Fed. Cl. 735, 744 (2009)). In a table

appearing on page 1623 of the administrative record, which contains the portion of Plaintiff’s

proposal in which it was supposed to identify performance risks and explain mitigation

measures, it would appear Plaintiff included its draft thoughts regarding what needed to be

addressed in terms of “ ”:

is an issue for

us today. It can be presented as a high severity risk in the proposal. What are the

mitigation strategies to reduce the risk to a low severity?

AR 1623. Although this paragraph may identify a performance risk, it certainly does not address

any mitigation measures for that risk. Plaintiff attempted to dance around the obvious in its

briefing on this issue by arguing that the Army did not identify which of the categories of risk

Plaintiff failed to mitigate, see Pl.’s MJAR at 19–20, but it could not be more clear from the

administrative record that the above-quoted paragraph and one that appears four rows down 5 on

the table were the risks the Army labeled as “internal reflections” that Plaintiff failed to explain

how it would mitigate. Obviously, raising two major performance risks, and failing to address

how either would be mitigated, rationally called for the assignment of a weakness, hence

counsel’s concession at oral argument.

With Plaintiff’s concession that the first weakness was merited (and its failure to prove

that the weakness was irrationally assigned absent its concession), the Court now turns to the

remaining contested weakness. Regarding the second weakness it received, Plaintiff argues that

installations. Moreover, Plaintiff received a second weakness for identifying two risks (one of which was

the personnel ) in its proposal and not addressing how it was going to mitigate those

two risks.

5

In a separate row on this table in Plaintiff’s proposal, Plaintiff, in what once again is obviously

draft language, writes:

.I

would rate this as a medium/high severity. What are our mitigation strategies to reduce

the risk to a low severity?

AR 1623.

16

the Army evaluated it and Caelum disparately with regard to incumbent retention, because

Plaintiff’s proposal received a weakness for proposing to retain incumbent personnel, while

Caelum’s proposal did not. Pl.’s MJAR at 18–19. In Plaintiff’s mind, “the incumbent staff

will be the same if they stay with Ascendant or go to Caelum. If their

, Caelum will have the same problem. By that logic, Caelum should have received the

same weakness, or nobody should have received it.” Id. at 19 (footnote omitted). Caelum

counters this argument by asserting that its incumbent retention plan is not the same as

Plaintiff’s, in that Caelum only proposed to retain “desired incumbent staff” and proposed

“specific measures to address any skill gaps,” whereas Plaintiff proposed to attempt to retain 100

percent of the incumbent staff. Caelum’s Cross-MJAR at 12–13 (citing AR 2190, 2146). In

addition, both the government and Caelum point out that the weakness Plaintiff received goes

beyond incumbent retention. Rather, they both identify that this weakness was also assigned

because Plaintiff’s proposal did not indicate how it planned to staff the multiple locations called

for in the solicitation—it only addressed staffing at the Army Test and Evaluation Command.

See Caelum’s Cross-MJAR at 13; ECF No. 29 at 14 (“Gov.’s Cross-MJAR”).

Even a cursory review of Plaintiff’s proposal reveals that the portion of its proposal that

relates to this weakness (Phase II Management Factor Requirement 10) is substantially

distinguishable from Caelum’s proposal. The solicitation required IT logistics and support for at

least three Army installations. AR 249. First, with regard to staffing all required installations,

Plaintiff failed to indicate in its proposal that it planned to staff any location other than AETC/

Army Evaluation Center (“AEC”). But the proposal plainly requires support for multiple

locations in addition to ATEC/AEC, including the Aberdeen Test Center (“ATC”) and the

Operational Test Command (“OTC”) at Ford Hood. AR 249. Plaintiff’s proposal is facially

unclear as to whether it intends to staff all the locations required by the proposal. See KSC Boss

All., 142 Fed. Cl. at 382 (holding it is the offeror’s responsibility to submit a well-written

proposal). Although Plaintiff repeatedly notes its partnership with to establish a

“‘pipeline’ of readied personnel who fully meet the requirements of ATEC ITSS vacant labor

categories,” AR 1629, that is not a strong enough indication that Plaintiff intends to staff all

required locations to make the Army’s assignment of a weakness irrational. Contrast this with

Caelum’s proposal that describes staffing at all required installations. See, e.g., AR 2162–64

(explaining its onboarding timeline and procedures for personnel); AR 8572 (“By having a list of

personnel broken out by locality, Caelum is well prepared to support ATEC’s needs wherever

and whenever they arise.”). Because of the facial disparity between the two proposals, the Court

will not further engross itself in the minutiae of this procurement and must leave the Army’s

reasonable evaluation as it stands, see Enhanced Veterans Sols., 131 Fed. Cl. at 588, especially

considering Plaintiff failed even to attempt to address this portion of the assigned weakness, see

generally Pl.’s MJAR at 17–19.

Second, with regard to risk mitigation, as the Court explained above, Plaintiff’s proposal

contained what appears to be draft language that only identified but did not address risk

mitigation. Once again, as quoted above, in the section titled “Performance Risks and Mitigation

Measures,” Plaintiff’s proposal contains the following two passages:

•

17

This is an issue

for us today. It can be presented as a high severity risk in the proposal. What

are the mitigation strategies to reduce the risk to a low severity?

•

. I would rate this as a medium/high severity. What are our

mitigation strategies to reduce the risk to a low severity?

AR 1623.

This identification of risks with no explanation of how those risks were going to be

mitigated clearly warranted a weakness, with the Army reasoning that:

Two risk mitigations appear to be internal reflections about the current state rather

than actual mitigations. The proposal also did not provide mitigation for some

elements in their risk chart. This was determined to be a weakness as the proposal

failed to present risk mitigations for the elements in the risk chart, and failed to

clearly identify actual mitigation strategies.

AR 8559. Although the language in Plaintiff’s proposal certainly would qualify as an

explanation of a risk, it is not an explanation of risk mitigation measures as the proposal requires.

Meanwhile, Caelum’s proposal described strategies to mitigate the risk of obsolescence, 6 AR

2146, in addition to stating repeatedly that it would only hire desired incumbent staff while

proposing procedures in the event that new staff needed to be hired. AR 2190 (“Team Caelum is

committed to recruiting and hiring all qualified incumbent staff . . . .”); see also AR 2163–64.

Accordingly, Plaintiff has failed to demonstrate that the Army’s assignment of this weakness was

in error.

2. Strengths Plaintiff Claims It Should have been Assigned

Plaintiff’s arguments for why the Army should have assigned it several strengths on its

management approach fare no better. In sum, Plaintiff argues that five of the strengths 7 the

6

Plaintiff concedes as much in its briefing. See Pl.’s MJAR at 19 n.4 (“In fact, Caelum proposed

to ‘proactively address’ skills ‘gaps.’ (AR2146.)).”

7

Plaintiff actually asserts that it should have been awarded as many as nine strengths, but

curiously it only attempts to argue in favor of five strengths. For the four remaining strengths it claims it

should have received in its motion for judgment on the administrative record, Plaintiff literally lists the

four alleged strengths it should have received and states: “[t]hese proposal features exceeded

requirements and should have been rewarded with strengths.” Pl.’s MJAR at 29–30. It should go without

saying that Plaintiff obviously failed to meet its burden of persuasion on these four strengths for which

Plaintiff offers no argument other than the above-quoted sentence.

18

Army assigned to Caelum’s management approach also should have been assigned to Plaintiff.

Pl.’s MJAR at 21. The solicitation defined a strength as “[a]ny aspect of a proposal when judged

against stated evaluation criterion, enhances the merit of the proposal or increases the probability

of successful performance of the contract.” AR 211. Caelum, for example, “received a strength

for its ‘solid process improvement plan.’” Id. (citing AR 8569, 8754–55). Yet, according to

Plaintiff, it “proposed the same thing . . . .” Id. (citing Plaintiff’s proposal at AR 1636). Caelum

also “received a strength for aligning ‘CMMI, ITIL4 standards through a strategic management

approach.’” Id. at 22 (quoting AR 8755). But, Plaintiff asserts, it “also proposed to use CMMI

and ITIL 4 . . . .” Id. (citing Plaintiff’s proposal at AR 1615, 1620). Next, “Caelum received a

strength for its retention plan,” including its “robust Employee Care program,” id. at 23 (quoting

AR 8758), yet, Plaintiff argues, its “benefits package is virtually identical—and better in some

respects—to what Caelum proposed,” id. Plaintiff provides a comparison of its own retention

plan next to Caelum’s, see id. at 23–25 (comparison chart citing AR 1632–33, 2150), and

concludes that “[t]he companies’ benefits are strikingly similar,” id. at 25. Finally, according to

Plaintiff, “both [Plaintiff] and Caelum proposed virtually identical OCI mitigation strategies,” id.

at 25—such as performing initial and annual OCI briefings and stopping problematic activity—

but “Caelum won a strength and Ascendant did not,” id. at 26.

Plaintiff fails to carry its burden with regard to any of the strengths it claims it should

have been assigned. A disappointed bidder bears the burden to show an agency’s decision, such

as not assigning a strength, did not have a rational basis by a preponderance of the evidence.

Qwest Gov’t Servs. v. United States, 112 Fed. Cl. 24, 33 (2013) (“In reviewing cross-motions for

judgment on the administrative record, the court must determine ‘whether, given all the disputed

and undisputed facts, a party has met its burden of proof based on the evidence in the record.’”)

(citing A & D Fire Prot. v. United States, 72 Fed. Cl. 126, 131 (2006)). Moreover, in moving for

judgment on the administrative record, a protestor is obligated to “draw[] upon and cite[] to

portions of the administrative record that bear on issues presented to the court,” RCFC

52.1(c)(1); see also Facility Healthcare Servs., Inc. v. United States, 158 Fed. Cl. 254, 257–58

(2022), because a judgment on the administrative record is properly understood as an expedited

trial on a paper record. See Bannum, 404 F.3d at 1354; see also Moss v. United States, 101 Fed.

Cl. 611, 616 (2011). Furthermore, the Court’s duty in this inquiry is not to second guess

“minutiae,” but to determine if a plaintiff has pointed out any “inconsistencies in subjective

judgments” or proposals that are “indistinguishable for purposes of the evaluation.” Enhanced

Veterans Sols., 131 Fed. Cl. at 588. As Judge Wolski explained in Enhanced Veterans,

While these types of challenges can succeed when protesters demonstrate

inconsistencies in subjective judgments, see USfalcon, 92 Fed.Cl. at 462, such

inconsistencies require the existence of nearly identical provisions in the proposals

under consideration. When a court is not convinced that the aspects of the

proposals brought to its attention are indistinguishable for purposes of the

evaluation, then the exercise instead crosses the line and involves the second

guessing of “minutiae” which we are not allowed to undertake, see E.W. Bliss Co.,

77 F.3d at 449.

19

131 Fed. Cl. at 588 (emphasis added). The Court agrees with the government and Caelum that

the proposals at issue are not substantively indistinguishable with regard to the alleged errors in

assigning strengths; therefore, the Court cannot disturb the Agency’s evaluation.

Plaintiff’s arguments regarding the first three strengths it asserts it should have received

(process improvement, linking standards and metrics to be successful, and aligning CMMI and

ITIL4 standards) fail for two interplaying reasons. As stated above, it is entirely a plaintiff’s

burden to prove by a preponderance of the evidence that an agency acted arbitrarily. See

Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 995–96 (Fed. Cir. 1996). To meet that

burden, the Court expects briefs on motions for judgment on the administrative record to contain

substantive analysis and comparison that “draws upon” the administrative record, as RCRC 52.1

mandates, to demonstrate to the Court what agency action a protestor seeks to remedy and why

that action was allegedly irrational. Plaintiff, in arguing that it should have received strengths for

(1) a “solid process improvement plan,” (2) “linking standards and metrics to be successful,” and

(3) “aligning CMMI, ITIL4 standards through a strategic management approach,” merely states

the strength it thinks it deserves, cites to the relevant portion of Caelum’s proposal, and asserts it

should have received the same strength. Pl.’s MJAR at 21–22 (internal quotations and citations

omitted). Such minimal briefing cannot be characterized as sufficiently drawing upon the

administrative record or offering an argument sufficient to meet the substantively

indistinguishable standard. Analogizing a motion for judgment on the administrative record to a

trial (which is what it is, albeit on a paper record), would make this approach akin to counsel

presenting an opening statement setting forth what it intends to prove at trial but then failing to

call the relevant witnesses to provide testimony or making any argument to show the relevancy

of any evidence it did offer. It is drawing upon the administrative record with reasoning and

analysis that carries the day on motions for judgment on the administrative record, not

unsupported assertions or unsubstantiated conclusions. Because Plaintiff has not truly attempted

to meet its burden of proof regarding these three strengths, the Army’s analysis of these aspects

of Plaintiff’s proposal remains undisturbed.

Plaintiff next asserts that it should have received a strength for its “strikingly similar”

employee retention plan. Pl.’s MJAR at 24–25. Plaintiff begins this argument with the

statement that, at 94%, it has a higher employee retention rate than Caelum. Id. at 23. The

problem with this assertion, however, is that it is incorrect. It is one of Plaintiff’s subcontractors

that has a 94 percent employee retention rate, not Plaintiff. See AR 1627 (“[O]ur strategic

partner , having experience retaining 2000+ FTEs at for 20+ years with an average

retention rate of above 94% . . . .”). Moreover, Plaintiff does not cite to any place in the

administrative record that shows what its employee retention rate actually is. Plaintiff then turns

to a chart it prepared containing a side-by-side of Plaintiff’s and Caelum’s employee retention

plans, essentially requesting that the Court delve into the minutiae of comparing the two

offerors’ proposals and deciding whether any differences exist. Clearly the plans are not

identical, but Plaintiff offers no argument (other than pointing out a few differences) as to how

its proposal and Caelum’s are substantively indistinguishable. The Court’s cursory analysis of

the proposals though quickly finds a very striking difference with regard to what Plaintiff

describes as its “more generous” leave policy. Plaintiff’s plan provided for

20

. AR 1632. However, Caelum’s supposedly “less generous” leave plan

actually provides for more

Although the Court could examine other aspects of the

employee retention plans to analyze the similarities and differences, Plaintiff has not made a

concrete argument on this point beyond providing the side-by-side table and, absent some

attempt to do so, it is not for this Court to substitute its judgment for the Army’s. The Army

knows its priorities in evaluating the proposals’ retention and leave policies, and the Court

cannot disturb that absent a showing of irrationality. See Impresa Construzioni Geom. Domenico

Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001). The Court does not find the

Army’s evaluation of this aspect of each of the proposals irrational and, therefore, will not

disturb the Army’s determinations.

Finally, Plaintiff asserts that both it and Caelum proposed organizational conflict of

interest (“OCI”) mitigation plans that were “virtually identical,” and, therefore, Plaintiff deserved

a strength because Caelum received one for its plan. ECF No. 26 at 25. Here, Plaintiff comes

closer to the mark, although once again Plaintiff leaves most of the legwork on comparing the

relevant portions of the proposal to the Court. However, having determined that Plaintiff still

would have three weaknesses and no other strengths, even if the Court were to find in its favor

and determine a strength was merited for Plaintiff’s OCI mitigation plan, this one strength alone

would be insufficient to change Plaintiff’s marginal rating on management approach. See AR

603 (stating that a “marginal” rating is warranted when “[t]he proposal has one or more

weaknesses which are not offset by strengths.”). Therefore, even if the Court concurred that

Plaintiff’s and Caelum’s proposals were substantively indistinguishable with regard to OCI

mitigation, this lone alleged error would be non-prejudicial.

E. Plaintiff Fails to Demonstrate That the Army’s Past Performance Evaluation Was

Flawed or, If It Was, That It Prejudiced Plaintiff

The Court next considers Plaintiff’s objections to the Army’s past performance

evaluation. In cases in which the Court “considers a bid protest challenge to an agency’s past

performance evaluation, ‘the greatest deference possible is given to the agency.’” Def. Base

Servs., Inc. v. United States, 147 Fed. Cl. 424, 436 (2020) (quoting Westech Int’l, Inc. v. United

States, 79 Fed. Cl. 272, 293 (2007)); see also Gulf Grp. Inc. v. United States, 61 Fed. Cl. 338,

351 (2004) (“[I]n cases such as this, when a negotiated procurement is involved and at issue is a

performance evaluation, the greatest deference possible is given to the agency—what our Court

has called a triple whammy of deference.”) (internal quotation omitted). As such, “review of

past performance evaluations is ‘limited to determining whether the evaluation was reasonable,

consistent with the stated evaluation criteria and complied with relevant statutory and regulatory

requirements.’” Id. (quoting Westech Int’l, Inc., 79 Fed. Cl. 272 at 294).

With regard to the Army’s evaluation of Caelum’s past performance, Plaintiff argues that,

despite the substantial deference to which the government is generally entitled in evaluating past

performance, the evaluation of Caelum’s past performance was nonetheless irrational. See

generally Pl.’s MJAR at 30–31. Specifically, Plaintiff contends that the Army’s technical

evaluators “mechanically evaluated Caelum’s past performance” and simply “noted that one of

21

Caelum’s subcontractors . . . received a cure notice[] but did no further analysis.” Id. at 30. In

Plaintiff’s view, “[t]he unknown circumstances of that cure notice could have negatively

impacted Caelum’s past performance evaluation.” Id. (emphasis added). For instance, according

to Plaintiff, “[a]nother offeror . . . also had a subcontractor with a cure notice,” but “the

evaluators found that the [agency involved] had rescinded [the cure notice]. Similarly, [a]

proposed subcontractor . . . received three cure notices. The [Army] analyzed [this issue]

relatively extensively before concluding that [the offeror] was acceptable.” Id. at 31 (citations

omitted). Plaintiff maintains “it was arbitrary for the [Army] not to explore or discuss the cure

notice Caelum’s subcontractor received, like it did for others,” and “[t]he higher-level evaluators

missed it too.” Id. In Plaintiff’s view, instead of scrutinizing Caelum’s past performance, “the

source selection authority merely said that ‘all offerors had acceptable Past Performance, and

that factor is [therefore] not part of the tradeoff analysis.’” Id. (quoting AR 8735) (alteration in

original).

To put it mildly, Plaintiff’s past performance argument lacks merit. To begin with,

Plaintiff concedes ab initio that it is not even certain an error occurred: the “cure notice could

have negatively impacted Caelum’s past performance evaluation.” That there “could have” been

an error is legally insufficient to demonstrate that an agency action was irrational. Moreover, as

was explained in greater detail earlier in this opinion, in order to be successful, a protester must

be able to show that the correction of the alleged error would yield a different result, that is to

say that the error caused harm or prejudice. However, even if Plaintiff’s past performance

argument is 100 percent correct (which for reasons discussed below it is not), it could not

conceivably show it was prejudiced by the Army’s alleged error based on the record before the

Court. This is because under the solicitation an offeror could only receive either an “acceptable”

or “unacceptable” rating for past performance. Therefore, in order for success on this argument

to result in prejudice, Plaintiff would have to demonstrate that had the Army “correctly”

evaluated the single cure notice that the parent company of one of Caelum’s subcontractors

received, it would have changed Caelum’s past performance rating from acceptable to

unacceptable. Plaintiff, however, does not even attempt to argue that such a change in rating

would result. And with good reason. In order to find that Caelum’s past performance was

unacceptable, the Army would have been required to conclude that it had “no reasonable

expectation that the offeror will be able to successfully perform the required effort.” See AR

603. Such a conclusion would have been irrational on this record.

First, the cure notice that allegedly “could have” affected Caelum’s past performance

rating was issued to a subcontractor. Or more specifically, it was issued to the parent company

of one Caelum’s proposed subcontractors. As the Army evaluator noted, the “issue was with a

subcontractor, not the prime contractor.” AR 8647. This is of course important because the

subcontractor would only be performing some fraction of the overall work covered by the

contract and thus any issues with performance by a subcontractor would not likely significantly

impact the overall work on the contract. In other words, the Agency was justified in concluding

that the single subcontractor notice to cure was not likely to impact the likelihood of Caelum’s

overall successful future performance such that Caelum should have been rated unacceptable.

Second, the Army’s evaluators determined that other offerors had objectively worse past

performance histories than Caelum and yet those offerors’ past performance was found to be

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“acceptable.” For example, received a notice to cure but was still determined to be

acceptable (AR 8214, 8646); received a notice to cure and a corrective action report

but was still determined to be acceptable (AR 8255, 8648); received a notice to cure but

was still determined to be acceptable (AR 8442–43, 8447–48, 8657); had a number of

issues noted in its record in the Contractor Performance Assessment Reporting System

(“CPARS”) but was still found to be acceptable (AR 8291–95); had several issues

noted in CPARS but was still determined to be acceptable (AR 8316–18); and had a

number of performance issues but was still deemed acceptable (AR 8478–83).

Third, the Army actually conducted the analysis that Plaintiff alleges did not occur.

Indeed, contrary to Plaintiff’s assertion that the Army “did no further analysis” on Caelum’s

subcontractor’s notice-to-cure, the record reflects—as the government correctly identifies—that

[t]he evaluator also noted that [Caelum’s subcontractor] had a “notice-to-cure”

from another agency, and that additional explanation was required. [AR 8237].

According to that evaluator though, that notice was favorably resolved to the

Government’s satisfaction. Id. In the consensus evaluation, it was noted that “[the

subcontractor] quickly took steps to resolve the issue to the Government’s

satisfaction indicates a desire to keep the customer happy.” Tab 88b at AR8647.

Because the issues was [sic] resolved favorably, the agency determined the cure

notice did not indicate that the subcontractor would negatively impact Caelum’s

probability of meeting the solicitation’s requirements. See id. Further, the

evaluator noted that the “issue was with a subcontractor, not the prime contractor,”

which is important because the subcontractor would only be performing a small

fraction of the work, and any issues with performance would not significantly

impact contract work. Id.

Gov.’s Cross-MJAR at 27. In short, the administrative record demonstrates that the Army did

exactly what Plaintiff accuses it of not doing with regard to this alleged past performance issue:

it evaluated and resolved to its satisfaction the subcontractor’s cure notice.

Furthermore, Plaintiff’s attempted whataboutism concerning the Army’s supposedly

more thorough (or “reasonable”) evaluation of other offerors’ past performance falls apart upon

even a cursory review. For example, Plaintiff instructs the Court to look at offeror

past performance evaluation—specifically concerning a cure notice—and

contrast it to Caelum’s. See Pl.’s MJAR at 31 (citing AR 8646). Ironically, however, the Army

spilled more ink in its explanation of Caelum’s cure notice—which, as the evaluation makes

clear, concerned a subcontractor—than for cure notice, which was issued to

itself. Perhaps Plaintiff confused which offeror’s past performance allegedly received

“no further analysis.” Compare evaluation at AR 8646 (“There was a ‘notice-to-

cure’ listed on the Performance Events. The issue was resolved to the Government’s satisfaction

and the cure notice was formally rescinded as of April 1, 2020 (pg 16). addressed the

concern so the offeror is rated Acceptable.”) with Caelum’s evaluation at AR 8647 (“There was a

‘notice-to-cure’ . . . for support provided to DEA by subcontractor, ,

that required explanation and it was favorably resolved on February 4, 2019 (pg 18). The fact

that the quickly took steps to resolve the issue to the Government’s satisfaction indicates

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a desire to keep the customer happy. The issue was with a subcontractor, not the prime

contractor.”). In short, a review of the record shows that the Army “examined the relevant data

and articulated a ‘rational connection between the facts found and the choice made.’”

WorldTravelService v. United States, 49 Fed. Cl. 431, 441 (2001) (quoting Motor Vehicle Mfrs.

Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

Finally, Plaintiff notably fails to point the Court to a single case that factually supports its

contention that the government, in this instance, failed to “provide a coherent and reasonable

explanation of its evaluation.” Pl.’s MJAR at 30. Instead, Plaintiff simply concludes the Army

“did not meet these standards.” Id; see also Caelum’s Cross-MJAR at 21–22 (“Ascendant half-

heartedly asserts that Caelum’s past performance had an issue that was not properly

considered.”). For this and all of the foregoing reasons, Plaintiff fails to demonstrate either an

error or prejudice with regard to past performance.

F. Plaintiff Fails to Demonstrate that the Army’s Tradeoff Analysis Was Unreasonable

Finally, the Court briefly addresses Plaintiff’s objections to the Army’s tradeoff analysis

and resulting source selection decision. Plaintiff argues that the Army’s source selection

decision was irrational. See generally Pl.’s MJAR at 31–33. Specifically, according to Plaintiff,

the Army’s source selection authority (“SSA”) “accepted the underlying evaluations and allowed

their errors to infect her source selection decision. And while the SSA took time to compare

certain proposals, she did not do so for Ascendant.” Id. at 32. Plaintiff takes issue with the

SSA’s “four terse sentences” about its proposal, while the SSA “devoted at least several

paragraphs to all but one other offeror . . . .” Id. Plaintiff contends that “[h]ad the SSA taken the

time to independently assess [Plaintiff’s] proposal, and compare it to Caelum’s, she likely would

have recognized the errors mentioned above.” Id. at 33.

The government counters that “the Army did not fail to comply with the FAR’s

requirements at sections 15.505 and 15.508 to conduct a ‘comparative analysis.’ Nor did the

SSA fail to document her ‘own independent judgment.’” Gov.’s Cross-MJAR at 29. 8 According

to the government, “[t]he SSEB report specifically considered the relative merits of each offeror,

and, in circumstances in which an offeror had been assessed strengths, evaluated whether the

weaknesses were offset by strengths, or otherwise affected the offeror’s ability to perform.” Id.

The Court reads the government’s argument as the better of the two. While the FAR

indeed demands a comparative assessment of proposals against the source selection criteria, see

FAR 15.308, there is nothing in the record indicating the Army’s SSA failed to do anything but

that. See Tabs 92, 93. On top of that, “[a]n agency’s contract award is [] least vulnerable to

challenge when based upon a best value determination.” PlanetSpace Inc. v. United States, 96

Fed. Cl. 119, 125 (2010) (citing Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330

8

It seems the government incorrectly cites to the FAR in this assertion. FAR sections 15.505 and

15.508 concern “Preaward debriefing of offerors” and “Discovery of mistakes,” respectively—neither of

which relate to the assertion the government, in this instance, is making. Given context elsewhere in the

government’s motion, as well as the verbiage the government quotes or paraphrases, the Court can

discern what the government presumably intended to cite—FAR sections 15.305 and 15.308, concerning

“Proposal evaluation” and “Source selection decision.”

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(Fed. Cir. 2004)) (emphasis added). In other words, “this Court is to provide [] deference to the

Agency’s best value tradeoff.” Sirius Fed., LLC v. United States, 153 Fed. Cl. 410, 423 (2021)

(citing Med. Dev. Int’l, Inc. v. United States, 89 Fed. Cl. 691, 702 (2009)); see also E.W. Bliss

Co., 77 F.3d at 449 (“Procurement officials have substantial discretion to determine which

proposal represents the best value for the government.”).

Moreover, “[i]t is well settled that the government is only required to make a

‘cost/technical tradeoff . . . where one proposal is rated higher technically than another, but the

other is lower in cost.’” Sirius Fed., LLC, 153 Fed. Cl. at 424 (quoting Indus. Prop. Mgmt., Inc.

v. United States, 59 Fed. Cl. 318, 324 (2004) (other citations omitted). Yet here, Plaintiff

challenges the adequacy of the Army’s tradeoff analysis between its proposal and Caelum’s—

among four other offerors—which all had a higher technical rating and lower price. See AR

8735 (showing offerors , , , and Caelum proposed lower prices and had

higher technical ratings than Plaintiff). In sum, and under these facts, Plaintiff’s tradeoff

analysis contentions have no leg on which to stand.

The Court also emphasizes a central problem for Plaintiff: as detailed throughout this

opinion, the Court finds no error in the Army’s underlying evaluations. Thus, it cannot follow

that the SSA’s use of the underlying evaluations in any way “allowed [] errors to infect [the]

source selection decision.” Pl.’s MJAR at 32. While Plaintiff clearly desired a more fulsome

explanation from the SSA, the Court politely reminds Plaintiff that it received three weaknesses

and zero strengths, all the while having a total evaluated price that was higher than four other

offerors. See AR 8815. In fact, Plaintiff was the only offeror to have weaknesses with no other

potentially counterbalancing strength for which the SSA could articulate some semblance of a

risk/reward analysis. See id. To put it bluntly, the Court finds nothing in the SSA’s tradeoff

analysis that raises even a specter of prejudicial error.

For comparison’s sake, offeror —noticeably not detailed in Plaintiff’s motion—

received one strength with its five weaknesses, providing the SSA an opportunity (even if brief)

to articulate a potential tradeoff—which the Army, then, ultimately found was undesirable. See

AR 8746 (“Caelum’s proposal has no weaknesses and nine strengths. proposal offers

one strength in having CMMI Development Level 3 and relevant ISO certifications, but that

strength is outweighed by the five weaknesses. . . . Paying $3 million more for an inferior

proposal is not necessary.”) (emphasis added). The Court grants that Plaintiff may have desired

more than “four terse sentences,” but it only takes so much verbiage for an agency to articulate

its reasons for choosing against “an inferior proposal.” See Sirius Fed., LLC, 153 Fed. Cl. at 423

(“While [Plaintiff] clearly believes a more detailed analysis should have been documented, that

is not the issue for the Court to decide. The issue for the Court is whether what the [agency] did

was rational. It was.”). The SSA’s tradeoff analysis and resulting source selection decision was

rational, and Plaintiff has made no compelling argument to the contrary. Accordingly, Plaintiff’s

tradeoff analysis arguments fail.

CONCLUSION

For the reasons set forth above and in the Court’s order of May 9, 2022, Plaintiff’s

motions for judgment on the administrative record and for a permanent injunction are DENIED.

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The government’s and the Defendant-Intervenor’s cross-motions for judgment on the

administrative record are GRANTED. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

s/ Zachary N. Somers

ZACHARY N. SOMERS

Judge

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