# Bilfinger Berger AG Sede Secondaria Italiana v. United States

> United States Court of Federal Claims · November 19, 2010 · 97 Fed. Cl. 96

URL: https://www.frixlaw.com/law-library/cases/6661618

## Case

- **Full name:** BILFINGER BERGER AG SEDE SECONDARIA ITALIANA v. The UNITED STATES, and Cooperativa Muratori Riuniti, Defendant-Intervenor
- **Court:** United States Court of Federal Claims
- **Decided:** November 19, 2010
- **Citations:** 97 Fed. Cl. 96; 2010 WL 4721297
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Sweeney
- **Judges:** Sweeney
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6661618

## How later opinions describe it (automated extraction)

- noting that “[u]se of the permissive term ‘may’ connotes discretion [and indicated, in that ease, that the] solicitation did not require that the [government] reject an offer- or’s proposal based upon a failure to submit [a particular] certificate”

## Opinion text

OPINION AND ORDER
SWEENEY, Judge.
Before the court in this post-award bid protest are Plaintiffs Motion for a Preliminary Injunction and Defendant’s Motion to Dismiss. Plaintiff Bilfinger Berger AG Sede Secondaria Italiana (“BBSSI”) requests that the court issue a preliminary injunction (1) preventing the United States Army Corps of Engineers (“Corps”) from issuing any task orders to the awardee and defendant-interve-nor, Cooperativa Muratori Riuniti Impresa Generate di Construzioni (“CMR”), under Job Order Contract (“JOC”) number W912GB-10-D-0007, and (2) requiring the Corps to suspend performance of the JOC, including all task orders issued to CMR, until this action is resolved. 1 Defendant moves to dismiss the complaint pursuant to RCFC 12(b)(1) and 12(b)(6). For the reasons set forth below, defendant’s motion to dismiss is denied in part and plaintiffs motion for a preliminary injunction is granted.
Due to the length of this opinion, the court provides the following table of contents:
I. FACTUAL BACKGROUND. .102
A. The Solicitation . .102
1. Evaluation Factors for Award .103
*101 2. The Societa Orgcmismi D’Attestazione (“SOA”) Certification System rH
a. Background. rH
b. Procedure. rH
3. Solicitation Requirements Related to the SOA Certificate. rH
Submission of Proposals. rH
The Corps’ Competitive Range Determination. rH
1. Adjectival Ratings Assigned by the TEB. rH
a. Experience Factor Ratings. H
b. Past Performance Factor Ratings. tH
c. Management Approach Factor Ratings. rH
2. Evaluation of Price by the TEB. rH
3. The TEB’s Ratings of Offerors’ Proposals. rH
Discussions With BBSSI . rH
1. Experience Factor. rH
a. The Debarred Contractor. tH
b. BBSSI’s Explanation Concerning the Experience Factor. tH
2. Management Approach Factor. tH
3. Pricing Factor. rH
4. BBSSI’s Italian Submissions . rH
a. BBSSI’s Legal Position Concerning Its Use of BBH’s SOA Certificate.
i. Discussions Prior to the December 4,2009 Competitive Range Determination.
ii. Discussions Following the December 4, 2009 Competitive Range Determination.
b. BBSSI’s Representations That It Was Separate From BBH_
Procurement of a Legal Opinion Concerning SOA Certificates Under Italian Law. rH
1. The Corps’ Solicitation. rH
2. The Italian Legal Opinion. rH
a. The Background Section. rH
b. The SOA Qualification System Section. rH
c. Avvalimento Under the Italian Code Section. iH
d. The Conclusions Section. rH
The Corps’ Source Selection Decision Document (“SSDD”). rH
1. Technical Results. iH
a. Experience Factor in BBSSI’s Proposal. rH
b. Past Performance Factor in BBSSI’s rH
e. Factor in BBSSI’s rH
2. Price Analysis. rH
3. Tradeoff Analysis. rH
4. Responsibility Determination. rH
5. Source Selection Decision. rH
Post-Award Communications Between the Corps and BBSSI . o rH
1. Notification of Unsuccessful Offeror to BBSSI. rH
2. BBSSI’s for a Debriefing. rH
3. The Corps’ Written Debriefing. rH
Post-JOC Solicitation Discussions Between the Corps and BBSSI . rH
1. Reconsideration of the JOC Award and Participation in the Italy MATOC Procurement. to OO
2. Issues Related to the Predecessor JOC. to <£>
II.PROCEDURAL HISTORY. O CO
A. Proceedings Before the GAO. O CO
B. Proceedings Before the Court of Federal Claims rH CO
III.LEGAL STANDARDS. (M CO rH
A Bid Protests. (M CO rH
B. Standing. CO CO rH
C. Motion to Dismiss. CO CO rH
1. RCFC 12(b)(1). LO CO rH
*102 2. RCFC 12(b)(6). LO CO T — (
D. Preliminary Injunctive Relief. ZD CO 1 — 1
IV. DISCUSSION. CO i — 4
A Defendant’s Motion to Dismiss. CO i — l
1. Whether BBSSI Engaged in Unreasonable Delay. CO i — 4
Standards for Laches Defense CO rH
b. The Parties’ CO r — t
c. BBSSI’s Was Not Unreasonable . CO i — 4
2. Whether BBSSI Possesses Standing.. ^ r — 1
a. Defendant Has Not Demonstrated That any SOA Certifícate Deficiencies Could Not Be Cured . o
b. The Solicitation Did Not Require an Offeror to Submit an SOA Certificate in Its Own Name. on
c. Absent the Alleged Procurement Error, BBSSI Would Have Had a Substantial Chance of Receiving the JOC Award .. 2!
d. The Corps’ Decision to Make a Single Award. ^
3. Whether BBSSI’s Implied-in-Fact Contract Claim Is Barred by Federal Circuit Precedent. H C71 O
B. BBSSI’s Motion for a Preliminary Injunction. H Ol M
1. Whether BBSSI Is Likely to Succeed on the Merits. H Ü1 W
2. Whether BBSSI Will Suffer Immediate and Irreparable Harm.. H Ol <1
3. Whether the Harm BBSSI Will Suffer Outweighs the Harm to Defendant and to CMR. OO ID i — (
4. Whether Injunctive Relief Is in the Public Interest. O ZD i — l
V. CONCLUSION. .160
I. FACTUAL BACKGROUND 2
A. The Solicitation
On May 12, 2009, the Corps issued a solicitation requesting proposals for a firm-fixed-price, 3 indefinite delivery/indefinite quantity (“IDIQ”) JOC for real property repair, maintenance, minor construction, and/or asbestos abatement at various United States Department of Defense facilities located in Italy. 4 Compl.. ¶ 17; Pl.’s App. 3, 14, 37. Tracy L. Wickham served as the contracting officer for the JOC procurement. Compl. ¶ 14; Pl.’s App. 117. Performance of the work encompassed by the JOC spanned one base year with two option years. Pl.’s App. 88. The maximum value of the JOC was $30,000,000 with an estimated annual amount of $10,000,000 that could not exceed $15,000,000 during any period. Id.
Task orders under the JOC addressed general building renovation, road and pavement repair, and general environmental work, and specifically included: incidental, new minor construction; excavation; plumb *103 ing; demolition; electrical, structural, and mechanical work; concrete work; environmental remedial work; and force protection. Id. at 14. Offerors were advised that an award would be made to “one Offeror who is deemed responsible in accordance with the Federal Acquisition Regulation [ (“FAR”) ], conforms to the solicitation requirements, and whose proposal, judged by an overall assessment of the evaluation criteria and other considerations specified in this solicitation, represents the Best Value (Cost Technical Trade-Offs) to the Government.” Id. at 23-24. The Corps reserved the right to award the JOC to “other than the lowest offer received,” id. at 28, and “to make multiple awards if, after considering the additional administrative costs, it [was] in the Government’s best interest to do so,” id. at 36.
1. Evaluation Factors for Award
The Corps was to evaluate proposals based upon four factors: (1) experience; (2) past performance; (3) management approach; and (4) price. 5 Id. at 23. The JOC solicitation advised offerors that the experience factor was deemed “slightly more important” than the past performance factor, which, in turn, was deemed “slightly more important” than the management approach factor. Id. at 24. A combination of these three factors was “approximately equal to Cost or Price.” Id.
First, with respect to the experience factor, the Corps was to evaluate proposals based upon relevant projects that, among other things, were “designed and constructed in accordance with criteria similar to those required herein, constructed in Italy; recently completed; and that demonstrate multiple trades and experience managing multiple projects simultaneously....” 6 Id. Second, with respect to the past performance factor, the Corps was to evaluate each proposal based upon, among other things, the offeror’s “own past performance ... and on the past performance of any Joint Venture partners whose projects the Offeror may have submitted.” 7 Id. at 25. Third, with respect to the management approach factor, the Corps was to evaluate proposals based upon, among other things, “reasonableness, risk, and logic” and “illustration of] a basic understanding of managing the contract_” 8 Id. at 26. Finally, with respect to the price factor, the Corps was to evaluate proposals based upon several criteria, namely: (1) completeness; 9 (2) reasonableness; 10 (3) normal-hours and other-than-normal-hours coefficients, and non-preprieed overhead and profit factors; 11 *104 (4) bottom line sum for base period and option periods; (5) total contract bottom line sum; (6) price factor; 12 and (7) a determination of the bottom line sum. Id. at 27-28.
2. The Societa Organismi D’Attestazione (“SOA”) Certification System 13
a. Background
As part of their price proposals, offerors were required to submit various documents, including an SOA certificate. Id. at 15. The requirement for offerors to produce an SOA certificate stems from the execution of an October 20, 1954 Bilateral Infrastructure Agreement (“BIA”) between the United States and Italy. Pl.’s Mem. Ex. 2 at 3; Def.-Intervenor’s Supp’l Mem. 2. The BIA “regulates the cradle-to-grave life cycle of U.S. funded military infrastructure projects in Italy.” Pl.’s Mem. Ex. 2 at 3. Specifically, it provides that
all infrastructure built, upgraded or repaired by U.S. funds will eventually be consigned to the Italian Government and, therefore, must conform to Italian norms and laws. Thus, any construction, upgrade or repair of a facility must be considered as “executed on behalf of the Italian Government” and[,] as such, must comply with all Italian regulations and technical norms and standards.
Id.; accord Def.-Intervenor’s Supp’l Mem. 2. Established by Law number 109/1994, the Italian procurement authority for public works, Autoritá per la Vigilanza mi Con-trata Pubblici di Lavori, Servizi e Fomiture (“AVCP”), 14 is tasked with supervising Italian public contracts and ensuring transparency and competition within the public procurement market. Def.-Intervenor’s Supp’l Mem. 3. Pursuant to Presidential Decree (“D.P.R.”) number 34/2000, all contractors seeking a contract award for Italian public works must demonstrate that they possess the requisite technical and organizational capabilities, have “good” economic and financial standing, and comply with specified quality standards. 15 Id. Pursuant to D.P.R. number 34/2000, the AVCP was designated the governing authority over the SOA qualification system, and it was charged with supervising and authorizing the SOA, a collection of private certification companies (“SOA company” or, collectively, “SOA companies”). Id. The SOA companies are tasked with certifying that contractors comply “with the European Quality Certification standards, their technical and organizational capabilities, [and] their economic and financial standing-” 16 Pl.’s App. 264. Additionally, they are responsible *105 for (1) accepting applications from contractors seeking to obtain SOA certificates, (2) evaluating applications for renewals of SOA certificates, (3) issuing the appropriate level of SOA certification, and (4) evaluating renewals of SOA certificates. Def.-Interve-nor’s Supp’l Mem. 3.
Pursuant to Article 15 of D.P.R. number 34/2000, “in case of merger or other operations which imply a transfer of the business or of a business branch, the assignee can rely on the requirements of the assignor companies at the aim of the release of a new SOA certificate.” Pl.’s Supp’l Br. Ex. 2-3. According to BBSSI,
[fjrom a literal interpretation of the cited provision it seems possible to affirm that in case of transfer of a business branch — or other company transformation — it is not possible to transfer the existing SOA certificate to the new company but it is instead necessary to revoke the SOA of the assignor and to require a new attestation referred to the new company (the assign-ee). The abovementioned provision clarifies that the assignee can file an application for the new SOA [certificate] relying on the requirements of the assignor.
Therefore, by means of the transfer of business or of business branch the assign-ee acquires not only an organized complex of goods and services for the business activity but also the possibility of making use of the economic-financial and technical-organizational requirements of the assignor, necessary to obtain the SOA attestation. In particular, the new company could rely on the turnover, the labour cost, the amortizations, leasing, rentals and certificates of completed works ... of the assignor company.
Id. at 3.
The AVCP issued several resolutions concerning the qualification of assignees. Specifically,
by means of resolution [number] 5/2003[,] the [AVCP] specified that the operation implying the transfer of a business or of a business branch does not imply, in its turn, the “transfer” of the qualification of the assignor but only the possibility (and not the necessity) for the assignee to rely, for its qualification, on the requirements (and therefore not on the certification itself, considered as the result of the evaluation of the requirements) of the assignor company/companies.
Id. The assignee “applies for a new SOA [certificate] — and it does not require the transfer of the existing SOA [certificate].” Id.
b. Procedure
The process for obtaining an SOA certificate is regulated by Article 15 of D.P.R. number 34/2000. Def.-Intervenor’s Supp’l Mem. 2-3. First, the contractor seeking an SOA certificate must enter into an agreement with an SOA company in which it requests the issuance of an SOA certificate for a specific category and value of public works. Pl.’s Supp’l Br. Ex. at 1. General categories include construction, maintenance, restoration, or upgrading of thirteen types of projects (i.e., civil and industrial buildings, transportation routes, dams, pipelines, electrical plants, etc.). Def.-Intervenor’s Supp’l Mem. App. A at 1. There are also thirty-three specialized categories, which include but are not limited to, excavation, sanitary facility work, carpentry, waste and disposal, surveying, demolition, parks and recreation, heating and air conditioning systems, railways, and acoustic work. Id. at 2. Each category is assigned a classification, which represents the value threshold within that category for which the contractor qualifies. 17 Def.-Intervenor’s Supp’l Mem. 4.
Second, once the contractor has entered into an agreement with an SOA company, it must furnish all documents necessary to demonstrate that it satisfies the require *106 ments set forth in D.P.R. number 34/2000 for the issuance of an SOA certificate. 18 Pl.’s Supp’l Br. Ex. at 2, 4. Once all of these submissions have been received, the SOA company conducts a due diligence investigation in order to verify the contractor’s eligibility. Id. at 2. This verification process “can take up to 90 days” and may be interrupted or suspended at any time. 19 Id. However, the duration of any interruption or suspension of the process may not exceed ninety days. Id. The SOA company must, within 180 days after the contractor’s submission of its application, either grant or deny the SOA certificate. Id. Thereafter, the SOA company has thirty days to convey its determination to the AVCP. Id.
If a contractor is deemed compliant, then it is issued an SOA certificate. Pl.’s App. 264; see also id. at 259 (indicating that the SOA certificate is an attestation of qualification for the execution of public works). The SOA certificate comprises one page and includes, among other things, the name of the certified company, tax identification information, and the names and titles of the company’s production managers. Id. at 259. It also.“establishes and certifies for which category of works (general or specialised) and for which amount the company is qualified. Therefore, as a general rule, the company is able to participate [in] bids for contracts falling within the categories for which its SOA certification has been issued.” Id. at 264. The SOA certificate is valid for five years. Id. At the conclusion of a three-year period, the contractor must participate in a verification process with the SOA company that issued the SOA certificate in order to confirm that the contractor still satisfies the requirements necessary to possess the SOA certificate. See id.; Def.-Intervenor’s Supp’l Mem. 6.
3. Solicitation Requirements Related to the SOA Certificate
The JOC solicitation apprised offerors that they must comply with the requirements of D.P.R. number 34/2000 and subsequent amendments. Pl.’s App. 42. Additionally, it advised offerors that the
[f]ailure to furnish the documents required by this solicitation with your proposal may be cause for elimination of your proposal from competition. Firms must furnish additional back-up documentation requested by the contracting officer within the time period specified by the [contracting [o]ffi-cer. Failure to provide supporting documentation will subject the Contractor to possible termination for default of the contract. ...
If this project is valued at over [£] 150,000[,] offerors must provide their S.O.A. [certificate] reflecting eligibility to bid on the work solicited, by work qualification and classification. The prevailing work categories and elassifieation[s] are described in the pre-solicitation notice and in this solicitation. These work categories and classifications will also be described in individual task order requests for proposal and the S.O.A. [certificate] demonstrating eligibility will be required to be submitted with the task order proposal.
Id. at 42-43.
On June 2, 2009, the Corps issued Amendment 0001, which extended by one week the deadline for submission of proposals and incorporated various changes to the JOC solicitation. Id. at 100. Amended Section 00100, titled “Instructions, Conditions, and Notices to Bidders,” enumerated four prequalification requirements. Id. at 100, 104. In order for an offeror to be determined qualified to submit an offer, the offeror was required to submit the following:
*107 a. A description of the teaming arrangement which demonstrates how the potential Offeror and their proposed team will meet the qualification requirements. List all the firms (including subcontractors) that will contribute toward satisfying the stated S.O.A. [certificate] requirements. State how each firm contributes towards the satisfaction of the requirements.
b. A copy of ALL of the following Societa Organismi D’Attestazione (S.O.A.) Certifications, which have been established for this solicitation:
Prevailing Category of Work: CONTRACTOR Qualifioations
Offerors shall be qualified in accordance with [D.P.R. number] 34 of 25 Jan 2000, REGULATIONS FOR THE QUALIFICATIONS [OF] CONSTRUCTION FIRMS IN ITALY, IAW Legislative Decree 12 April 06 u. 163, the “De Lise Code” and subsequent amendments as follows:
Class IV 2.582.284.
OG 1 Edifiei Civili e Industriali
Civil and Industrial Buildings
c.Contractors must comply with the following:
Art. 38 of the De Lise Code as follows:
• Self certify they meet the requirements of Art. 38;
• Submit the “Documento Unico di Re-golaritá Contributiva” pursuant to Art. 2 of Legislative Decree [number] 210/2002 concerted into law n. 266/2002, which embodies the relevant statements from INPS and INAIL;
• Submit a copy of the “Casellario Guidi-ziario” Certificate for each member of the company.
d. If the potential Offeror is a joint venture, the joint venture members shall demonstrate how the joint venture team meets the S.O.A. certification requirements as stated in Paragraph 2, JOINT VENTURES.
Id. at 104-05. No other solicitation provisions referenced additional requirements related to the SOA certificate. Compl. ¶ 22.
B. Submission of Proposals
On June 19, 2009, seven contractors submitted proposals in response to the JOC solicitation: Basttistella SRL (“Basttistella”); BBSSI; CMR; Gemmo/Maltaura SpA (“Gemmo”); Lotos Costruzioni (“Lotos”); Pavan Costruzioni (“Pavan”); and SKE Support Services GmbH (“SKE”). 20 Pl.’s App. 150, 273. BBSSI is the Italian branch of BBAG, a publicly traded German corporation. 21 Compl. ¶¶ 3, 21. BBSSI, which engages in a wide range of government contracting with the United States in Europe, id. ¶ 3, “has broad construction and related-work experience, including work performed for the ... Corps and other Federal agencies,” id. ¶ 12. BBSSI was the incumbent contractor under the predecessor JOC issued by the Corps. 22 Id.
C. The Corps’ Competitive Range Determination
On June 25, 2009, and October 27, 2009, the Technical Evaluation Board (“TEB”) convened to determine which offerors were in the competitive range for discussion and negotiation purposes. 23 Pl.’s App. 146, 274. *108 Proposals, as indicated in Part I.A.1, supra, were evaluated based upon four factors, and an award would “be made to that Offeror whose proposal contains the combination of those criteria offering the best overall value to the Government.” Pl.’s App. 146. The Corps, which reserved the right to accept other than the lowest price offers and to reject any or all offers, id., issued its competitive range determination on December 4, 2009, id. at 154.
1. Adjectival Ratings Assigned by the TEB
After reviewing each proposal, the TEB assigned a consensus adjectival rating for three of the four factors listed in the solicitation: experience, past performance, and management approach. Id. at 147.
a.Experience Factor Ratings
The TEB assigned one of six adjectival ratings for the experience factor: “Excellent”; “Good”; “Satisfactory”; “Marginal”; and “Unsatisfactory.” 24 Id. An “Excellent” rating meant that the offeror’s experience demonstrated “an exceptional understanding of the government’s requirements. The proposal offers numerous significant strengths which are not offset by weaknesses, if any. The Government is extremely confident that the Offeror can successfully perform the anticipated services with little to very low risk with a high probability of success.” Id. A “Good” rating meant that the offeror’s experience demonstrated “a clear understanding and the proposal contains no deficiencies or significant weaknesses. The proposal offers some strengths/significant strengths which are not offset by weaknesses. The Government is confident that the Offeror can successfully perform the anticipated services with an overall low risk with a good probability of success.” Id. A “Satisfactory” rating meant that the offeror’s experience demonstrated “a sufficient understanding and the proposal contains some weaknesses and no deficiencies. The Government is fairly confident that the Offeror can adequately perform the anticipated services with an overall low to moderate risk with an acceptable probability of success.” Id. A “Marginal” rating meant that the offeror’s experience did
not demonstrate that the contractor fully understands all the objeetives/require-ments, and/or the proposal may contain deficiencies, and/or significant weaknesses. The Government is not confident that the Offeror can successfully perform all the anticipated services as required and possesses a moderate to high degree of risk and marginal probability of success.
Id.
b.Past Performance Factor Ratings
The TEB assigned one of seven adjectival ratings for the past performance factor: “Excellent”; “Good”; “Adequate”; “Marginal”; “Poor”; and “Unknown.” 25 Id. at 148. An “Excellent” rating meant that the offer- or’s past performance indicated “a highly successful performance record identified for evaluation and for all projects evaluated. The Government is extremely confident that the Offeror can successfully perform the anticipated services based on [its] performance record and overall risk of failure to perform is very low.” Id. A “Good” rating meant that the offeror’s past performance indicated “a successful performance record identified for the evaluation and for all or almost all of the projects evaluated. The Government is confident that the Offeror can successfully perform the anticipated services based on [its] performance record and overall risk of failure to perform is low.” Id.
c.Management Approach Factor Ratings
The TEB assigned one of five adjectival ratings for the management approach factor: *109 “Excellent”; “Good”; “Satisfactory”; “Marginal”; and “Unsatisfactory.” 26 Id. at 149. An “Excellent” rating meant that the offer- or’s management approach demonstrated “an excellent understanding of the government’s requirements. The proposal offers numerous significant strengths which are not offset by weaknesses, if any. The Government is extremely confident that the Offeror can successfully perform the anticipated services with little very low risk with a high probability of success.” Id. A “Good” rating meant that the offeror’s management approach demonstrated “a good understanding and the proposal contains no deficiencies or significant weaknesses. The proposal offers some strengths/significant strengths which are not offset by weaknesses. The Government is confident that the Offeror can successfully perform the anticipated services with an overall low risk with a good probability of success.” Id. A “Satisfactory” rating meant that the offeror’s management approach demonstrated “a sufficient understanding of the government’s requirements and the proposal contains some weaknesses and no deficiencies. The Government is fairly confident that the Offeror can adequately perform the anticipated services with an overall low to moderate risk with an acceptable probability of success.” Id. A “Marginal” rating meant that the offeror’s management approach indicated
a limited understanding of the anticipated effort under this requirement. The proposal contains deficiencies and/or significant weaknesses and the strengths do not outweigh the weaknesses. The Government is not confident that the Offeror can successfully perform all the anticipated services as required and possesses a moderate to high degree of risk and marginal probability of success.
Id.
2. Evaluation of Price by the TEB
The TEB did not assign adjectival ratings for the price factor. Id. Instead, it evaluated proposals based upon two criteria: (1) “completeness”; and (2) “reasonableness.” Id. In order for the proposed price to be deemed “complete,” the offeror was required to “provide all data that is requested and necessary to evaluate the Coefficients. The Government will assess the extent to which the proposed coefficients comply with the content and format requirements set forth in this solicitation.” Id. With respect to “reasonableness,”
[t]he Offeror’s proposal is evaluated through price analysis techniques as described in FAR Subpart 15.305(a)(1). 27 For Price (coefficient) to be reasonable, it must represent a Price (coefficient) that provides best value to the Government when consideration is given to prices in the market[] (market conditions may be evidenced by other competitive proposals), [and] technical and functional capabilities of the Offeror. The Offeror’s proposed coefficients will be evaluated to determine if any are unreasonably high or low in relation to the anticipated work under the contract, as well as with current industry standards.
Id. at 149-50 (footnote added).
3. The TEB’s Ratings of Offerors’ Proposals
Mr. Wickham, in his capacity as both the contracting officer and the Source Selection Authority (“SSA”), compared the ratings assigned to the offerors’ proposals by the TEB with respect to both price and technical ratings. Id. at 150. With respect to price, *110 proposals were evaluated against the Independent Government Estimate (“IGE”), which was [...]. Id. The following chart re-fleets the offerors’ ratings, with the offerors listed in order based upon price:
Chart 1
TOTAL Base Bid Offeror and Options Experience Past Performance Management Approach
BBSSI_NJ_NJ_NJ__
Pavan_[...]_[•. ■]_[• • •]_[• • •]_
CMR__NJ_NJ_[_J_
SKE_NJ_NJ_NJ_y_
Lotos_[...]_[■ ■ -3_[■ • •]_[• • ■]_
Basttistella_[...]_[.. •]_[• • •]_[• • •]_
Gemmo [...] [...] [.. •][• • -3
Id. The following chart reflects the offerors’ ratings with the offerors listed in order based upon their technical ratings:
Chart 2
TOTAL Base Bid Offeror and Options Experience Past Performance Management Approach
CMR_[^]__NJ__
SKE_NJ_NJ_NN_LJ_
Pavan_[■. ■]_[• ■ ■]_[• • ■]_[■ ■ •]_
Lotos_UJ_UJ_1^1__
Gemmo_[...]_[• ■ ■]_[■ • •]_[• • •]_
Basttistella_[...]_[...]_[• ■ ■]_[• • •]_
BBSSI [...] [...] [••■]L-J
Id. at 151.
After comparing these ratings, Mr. Wick-ham determined that four of the proposals— those submitted by BBSSI, CMR, Pavan, and SKE—were within the competitive range. 28 Id; see also id. at 154 (stating that these four offerors “have a reasonable chance of being selected for award and are therefore recommended for inclusion in the Competitive Range”); cf. id. at 152-54 (explaining the elimination of the three remaining offerors). He also concluded that it was not in the Corps’ best interest to select an awardee absent discussion:
In order to determine which proposal is the best value, we must enter into discussions. This requirement is for the selection of one (1) Contractor to receive an award for the Italy JOC. Based on the combination of technical factors and price (coefficient), none of the proposals as submitted can be selected for award. Meaningful written discussions will be held with the remaining four (4) firms.
Id. at 151.
D. Discussions With BBSSI
On December 4, 2009, Mr. Wickham informed BBSSI that it was “determined to be *111 in the competitive range for purposes of conducting discussions and negotiations.” Id. at 116. He also apprised BBSSI that the Corps “identified a number of areas where we feel we need additional technical information in order to understand your proposal as compared with the solicitation requirements.” Id. These areas included BBSSI’s (1) experience, (2) management approach, (3) pricing, and (4) submissions required pursuant to Italian law. Id. at 118-19.
1. Experience Factor
The Corps asked BBSSI to address the following: that its proposal [.. ,]. 29 Id. at 118. Although BBSSI identified ten projects for evaluation under the experience factor, id. at 155, 276, the Corps advised BBSSI that “[e]xperienee from the debarred contractor has not been eonsidered[. Therefore the contractor lacked evidence of experience in all of the categories required for construction disciplines,” id. at 118; see also id. at 276 (indicating that “all but two (2) projects were performed by the debarred contractor ... and could not be considered ” 30 )
a. The Debarred Contractor
BBH is a wholly owned subsidiary of BBAG. Compl. ¶23 n. 1; supra note 21. Beginning in March 2009, BBH, together with another BBAG subsidiary, was involved in debarment proceedings with the United States. Compl. ¶ 23 n. 1; see also Pl.’s App. 155 (indicating that BBH was issued a notice of proposed debarment on March 26, 2009); supra note 21. During discussions with the Corps, BBSSI explained its relationship, or lack thereof, with BBH:
BBSSI is and always has been the Italian branch of [BBAG], not a separate legal entity. BBAG is the German-based parent corporation of the Bilfinger family.... [BBH] ... is a separate legal entity from BBAG (i.e., a subsidiary)_
... [On] 13 March 2008, the BBAG Hochbau division in Germany, including the Kaiserslautern branch, demerged from BBAG. That division and its branches became a new stand-alone entity known as [BBH], and the United States Government entered into a Novation Agreement, through which multiple U.S. Government contracts were transferred from BBAG to BBH.... 31
Pl.’s App. 156 (footnote added).
On March 26, 2009, BBH was placed on the Excluded Parties List System (“EPLS”) and was precluded from participating in United States government contracting work until March 15, 2012. Hagner Decl. ¶ 8. According to BBSSI, neither BBAG nor BBSSI was the subject of any debarment proceedings, and BBAG and BBSSI were “never precluded from participating on U.S. procurements as a result of or as part of such proceedings.” 32 Pl.’s Supp’l Br. 4; accord *112 id. at 4-5. Thereafter, BBAG established BBGS, see supra note 21, which performed an asset transaction with BBH in early 2010, Hagner Deel. ¶ 9. As a result of this transaction, “contracting staff were transferred to BBGS. BBH has and will remain a standalone subsidiary of BBAG, with its own management, personnel, equipment, and locations.” Id. Throughout the remainder of 2009, BBH was “working in good faith towards an administrative agreement with the U.S. Government to resolve all outstanding issues (none of which relate to BBSSI).” Pl.’s App. 155. BBH was ultimately removed from the EPLS in February 2010. Hagner Deck ¶ 8.
b. BBSSI’s Explanation Concerning the Experience Factor
With respect to the ten projects it identified in its initial proposal for evaluation under the experience factor, BBSSI requested that all ten projects “be considered as valid experience examples for BBSSI.” Pl.’s App. 155. BBSSI noted that the [...]. Id. According to BBSSI, these [...]. Id. at 156; supra note 6. Furthermore, BBSSI indicated that it [...]. Pl.’s App. 156; supra note 6. These projects, BBSSI asserted, were [...]. Pl.’s App. 156.
BBSSI also requested that the [¶]... ] “[... ].” Id. These projects were, according to BBSSI, [...]. Id. In the event that the Corps declined to consider these projects, BBSSI submitted an additional seven project references for contracts that specifically named BBSSI. Id. at 156-57.
2.Management Approach Factor
The Corps indicated that BBSSI’s organizational chart did not clearly identify the lines of authority or work for all three locations. Id. at 118. In response, BBSSI [...] “[...].” Id. at 157. BBSSI noted that [...] “[...].” Id.; see supra note 21.
BBSSI also indicated that BBAG has “vast experience with the type of work which will be performed under this IDIQ contract, having performed — through BBSSI — works under the 2008 JOC Italy contract” and other efforts. 33 Pl.’s App. 157. According to BBSSI, [...] “[...].” Id. [...] “[...].” Id. at 158.
3.Pricing Factor
The Corps apprised BBSSI that [.. ,]. 34 Id. at 118. As such, the Corps indicated that [...] “[...].” Id. The Corps requested that [...]. Id. Furthermore, the Corps requested that [...] “[..Id. Although BBSSI responded to the Corps, the copy of its response that the court received was redacted. See id. at 158-59.
4.BBSSI’s Italian Submissions
The Corps raised two issues concerning BBSSI’s Italian submissions. First, BBSSI’s self-certification related to Article 38 of Legislative Decree number 163/2006 was missing from its proposal. 35 Id. at 119. Second, the Corps advised BBSSI that the SOA certificate it provided was in the name of BBH, a debarred contractor. Id.; supra Part I.D.l.a. As such, the Corps declined to accept BBSSI’s submission of BBH’s SOA certifi *113 cate. Pl.’s App. 119. The Corps requested that BBSSI furnish an SOA certificate in its own name. Id.
a. BBSSI’s Legal Position Concerning Its Use of BBH’s SOA Certificate
i. Discussions Prior to the December 4, 2009 Competitive Range Determination
The record indicates that BBSSI engaged in several discussions via electronic-mail and in person regarding the SOA certificate issue throughout August and September 2009. On August 28, 2009, Roberto Tomaiuolo, the procurator for BBSSI, sent an electronic-mail communication to Ms. Denzel and attached the following documentation: (1) an SOA certificate from BBSSI; 36 (2)a “[n]ew SOA” certificate, which was issued in the name of BBH; and (3) a self-declaration. 37 Id. at 250, 260. One month later, on September 28, 2009, Mr. Tomaiuolo again sent an electronic-mail communication to Ms. Denzel in which he explained that BBSSI could utilize BBH’s SOA certificate based upon the principle of avvalimento infra-gruppo. Id. at 252; supra note 37. Mr. Tomaiuolo also attached a legal opinion obtained by BBSSI’s Italian counsel that explained avvalimento infra-gruppo. Pl.’s App. 258.
In this legal opinion, BBSSI’s Italian counsel indicated that, pursuant to Article 49 of Legislative Decree number 163/2006, companies competing for the award of public works contracts by an Italian Public Administration must “prove that they meet the economic, financial, technical and organization requirements or SOA certification which are necessary in order to participate in competitive procedures for granting of public contracts” and may do so “by means of other subjects’ requirements or SOA certification.” Id. According to BBSSI’s legal counsel, where a company participating in the procurement relies upon the SOA certificate of an auxiliary company to prove it satisfies the economic, financial, technical, and organizational requirements, the competing company must, as part of its bid proposal, file with the contracting agency a copy of the contractual agreement executed between it and the auxiliary company in whose name the SOA certificate was issued. Id. If the company participating in the procurement and the auxiliary company in possession of the SOA certificate “are part of the same group,” then avvalimento infra-gruppo applies. Id. Under the concept of avvalimento infra-gruppo, the company participating in the procurement does not need to file with the contracting agency a contractual agreement between it and the auxiliary company in possession of the SOA certificate. See id. Thus, the company participating in the procurement must submit to the contracting agency “a self declaration attesting the legal and economic tie between them instead of the above mentioned contract. ...” Id.; see also id. at 256 (containing Mr. Tomaiuolo’s explanation to Ms. Denzel that “it is absolutely legal and standard procedure to use ‘Avvalimento infragruppo[,] i.e. Inter-group transfer’ of certifications used in contracts (i.e. SOA)_To make this procedure complete, we always have to attach the ‘self declaration’ that you see on our bids”); supra note 37.
In a second electronic-mail communication to Ms. Denzel dated September 28, 2009, Mr. Tomaiuolo reiterated that BBSSI, in order to rely upon avvalimento infra-gruppo, “need[ed] to attach the SOA [certificate] of the company ‘used’ and the self certification stating the link. This concludes the procedure.” Pl.’s App. 252; see supra note 37. Mr. Tomaiuolo also sent a third electronic-mail communication on September 28, 2009, which was quoted by the Corps as part of its request for quotations (“RFQ”) seeking a legal opinion concerning SOA certificates under Italian law. 38 See infra Part I.E.l. In *114 this communication, Mr. Tomaiuolo indicated that BBSSI’s use of BBH’s SOA certificate would
create no problems, since this fact has no consequences whatsoever other than the name change itself. In the ease, in fact, of a Group, with reference to inter-group certifications needed per public solicitations (i.e. SOA, which is the most important), as per Italian (and more extensively European) regulations, the “label” is PURELY NOMINAL, i.e. [BBSSI] not only can but has legally full independent authority[ ] to use and be qualified with a group member SOA certification, using a standard procedure (a self-declaration) introduced by the latest version of “Codice de Lise.” The rationale for this (which is relatively a new concept, inherited by [European Union] directives in the latest version of “Codice De Lise” and rulings of the European Court of Justice ...)[] is to avoid the necessity for a group of issuing multiple certifications for the same issue, [a] situation that for a group like ours, which is composed of many dozens of different independent companies, would result in an unbearable and unjustified escalation of costs.
Also the certification itself[ ] REMAINED exactly [like] the previous one [in] the name of [BBAG], with only a name change (i.e.[,] ALL requirements presented to obtain it in the past remained untouched, and basically the application was for a “change” and not for a different or new certification, and all values and work categories are unchanged).
We absolutely confirm our previous discussions and the complete legal separation between [BBSSI] and [BBH] that, as we all know, is debarred, and also confirm that this situation did not and will not change.
Def.’s Ex. 2 at 12-13; accord PL’s App. 239-40.
ii. Discussions Following the December 4, 2009 Competitive Range Determination
In its December 10, 2009 response to the Corps’ discussion questions, BBSSI reiterated its position regarding the legality of utilizing BBH’s SOA certificate:
[According to Legislative Decree [number] 163/2006 (the so-called Public Contract Code in Italy), BBAG, proposing through its Italian branch, BBSSI, is entitled to rely upon the SOA certificate of BBAG’s subsidiary entity, BBH, without that entity’s (BBH’s) involvement, performance, or support on the contract in any manner.
Pursuant to Art. 47, par. 2, of the Public Contract Code in Italy, a foreign company established in a European Member State can indicate and file the documentation which is necessary, in compliance with the legislation of the State in which it is established, in order to prove all the requirements prescribed to obtain the qualification to engage in public contract work. In other words, [an] SOA [certificate] in the name of BBAG is not required under Italian law, because it is a foreign entity that is in compliance with its own country[’s] laws.
Pl.’s App. 159; see also id. at 160 (explaining that the Italian Code authorized a bidder to fulfill the SOA certificate requirement by utilizing an SOA certificate of another group company through avvalimento infra-gruppo and asserting that the Bilfinger corporate family could rely upon BBH’s SOA [certificate] “because of the corporate family relationship and based upon the ... European and Italian legislative principles, which are referred to as the ‘avvalimento.’ They permit such reliance”).
*115 According to BBSSI, its submission of BBH’s SOA certifícate demonstrated its compliance with the law and its eligibility to perform Italian public works contracts. Id. at 160. Furthermore, BBSSI noted that the Corps previously raised an issue concerning use by BBSSI of BBH’s SOA certificate under the previous JOC. Id.; see supra note 38. According to BBSSI, it discussed this matter, as well as' avvalimento infra-gruppo, with the Corps in September 2009, and the Corps “accepted this proposition by continuing to issue task orders to BBSSI under the JOC predecessor.... For the same reasons, BBSSI is qualified to propose on — and to be awarded the contract under — this solicitation.” Pl.’s App. 160.
b. BBSSI’s Representations That It Was Separate From BBH
In addition to asserting the legal grounds upon which it could rely upon BBH’s SOA certificate, BBSSI also represented to the Corps that BBH had no connection to BBSSI or the JOC procurement at issue in this case. On August 28, 2009, Mr. Tomaiuolo advised Ms. Denzel that, pursuant to the Italian Code, “ ‘the contract is in any case executed by the company that participates [in] the Bid, which will receive[] the BOD certification ...’[,] i.e. ONLY [BBSSI] (the entity submitting and signing the bid)[] can execute the job and will be the only one obligated to the Government (and vice-versa).” Id. at 250. Mr. Tomaiuolo reiterated this position on September 28, 2009, explaining to Ms. Denzel that provisions set forth in the document used for demonstrating avvalimento infra-gruppo, see id. at 254-55, provided that “ ‘the company used CANNOT become the awar-dee towards the Awarding Agency, as NO RELATIONSHIP WILL BE MADE BY THE AWARDING AGENCY WITH IT,’ ” id. at 252. In effect, Mr. Tomaiuolo advised the Corps that the “‘used’ company,” i.e., BBH, “has and will have no links whatsoever with the awarding agency.” Id.
In its December 10, 2009 response to the Corps’ discussion questions, BBSSI reiterated that BBH would not be involved in any aspect of performance under the JOC if awarded to BBSSI:
BBAG[,] through BBSSI[,] undertakes to execute the contract under the solieitation[ ] without having to make use of the SOA certificate transmitted, as there is no need for it to do so under Italian law. Further, BBSSI is absolutely capable of fulfilling — and intends to fulfill — its contractual duties by means of its own requirements and resources, without any involvement of BBH. In other words, the SOA [certificate] is valid for BBSSI’s use without any staffing, contract work, supervision, financial support, or any other involvement by or from BBH.
Id. at 160 (emphasis added). BBSSI offered to provide any additional information or documentation on the issue of BBH’s SOA certificate. Id.
E. Procurement of a Legal Opinion Concerning SOA Certificates Under Italian Law
1. The Corps’ Solicitation
On September 16, 2009, twelve days before Mr. Tomaiuolo communicated with Ms. Den-zel and approximately one and one-half months before the Corps issued its discussion questions to BBSSI, see supra Part I.D.4.a.i, the Corps initiated an RFQ seeking a legal opinion concerning SOA certificates under Italian law, see Pl.’s App. 237-49. In the “Background” section related to the “Schedule of Services,” the Corps noted that it issued several contracts to BBSSI and that BBH had been debarred from contracting with the United States government until 2012. Id. at 239. In addition to quoting from one of Mr. Tomaiuolo’s electronic-mail communications, Compl. ¶ 27, the Corps summarized BBSSI’s position:
[BBSSI] has consistently maintained that [it is] completely separate from [BBH] such that they are still eligible to contract. In the last month, [BBSSI] has provided [an] SOA [certificate] under the name of [BBH] and ha[s] stated that [its] previous one issued in [its] name is no longer valid. [It is] legally required to use the [BBH] SOA [certificate] and can no longer obtain [an] SOA [certificate] in [its] own name; *116 however[,] [it] still maintain[s] they [it is] not affiliated with [BBH].
Pl.’s App. 239.
The Corps framed its request as follows: “Provide a preliminary legal opinion addressing the overall interpretation and application of the various laws regarding [SOA certificates] and how they address subsidiary and affiliated companies and verifying the above explanation as valid from [BBSSI].” Id. at 240. It also sought verification that BBSSI’s explanations and interpretations of Italian law were valid. Id. Furthermore, the Corps posed the following questions:
1. Do the Italian laws, such as [D.P.R. number] 34/00 and the “Codice de [Lise,”] require a single company with several different subsidiaries to hold the SOA [certificate]? May other subsidiary and affiliated companies utilize the parent company’s SOA [certificate]? Is it legally required that affiliated companies utilize the parent company’s SOA [certificate] and cannot be certified and obtain SOA [certificates] in their own name?
2. What type of relationship must a company have with another one if they are legally able to use their SOA [certificate] for their technical certification? Are they considered the same company, subsidiaries, or something else? Can they be considered legally separated from a company if they are utilizing another company’s SOA [certificate] for their SOA certifications?
Id. The contract was awarded to Dr. Giorgio Cosmelli of the law firm Verusio e Cosmelli.
2. The Italian Legal Opinion
On January 8, 2010, Dr. Cosmelli issued an “Opinion on the SOA Qualification System and Some Relevant Connected Issues.” Id. at 263-71. Dr. Cosmelli divided his opinion into four parts: a background section; discussion of the SOA qualification system; discussion of the “instrument of ‘avvalimento ’ under the [Italian] Code”; and a conclusions section. Due to the importance of Dr. Cos-melli’s opinion, the court details the substance of each section below.
a. The Background Section
In the background section, Dr. Cosmelli summarized the purpose of his legal opinion was:
to verify the reliability, from an Italian Law perspective, of a statement rendered by the Italian branch of [BBAG], a German company with registered office in Mannheim, Germany ... in the bid for the award of a contract by the [Corps] in Italy.
To participate in such a bid[, BBSSI] intends to avail itself of a[n] SOA certification issued to an affiliate company (i.e.: a company belonging to the same group of companies), [BBH], being its own SOA certificate [is] no longer valid. Despite the fact that [BBH] has been debarred from contracting with the U.S. Government until 2012, according to [BBSSI] the latter is still eligible to contract with the [Corps] as it is a totally different legal entity from [BBH],
Id at 263 (footnotes omitted). Dr. Cosmelli also reproduced the specific inquiries enumerated by the Corps in its RFQ. See supra Part I.E.l.
b. The SOA Qualification System Section
As previously indicated, Dr. Cosmelli explained the SOA qualification system and enumerated applicable provisions of the Italian Code related thereto. Pl.’s App. 264-65; supra Part I.A.2. He noted that, while the SOA certification “covers the existence of the technical capabilities and of the economic and financial standing” of a company participating in a public works contract solicitation, it “does not cover the existence of such further general requirements” under the Italian Code. 39 Pl.’s App. 265.
*117 c. Avvalimento Under the Italian Code Section
Dr. Cosmelli indicated that
[precedents of the European Court of Justice and subsequently the EU Legislation admitted the possibility that an economic operator may have the technical capabilities and the economic and financial standing necessary to participate [in] a bid for the award of a public works contradi ] by relying on the resources (e.g.[,] employees, machinery, know-how, organization, economic and financial standing, etc.) of other entities, provided that, in such ease, the bidder can prove to the contracting authority that it will have in its disposal the resources of such other entities to carry out the works, under the contract, to be awarded.
Id. at 266. Initially, this process was permitted to be used “only among companies belonging to the same group....” Id. However, provisions enacted into the Italian Code “admitted the possibility [of] us[ing] third parties’ technical capabilities and economic and financial standing regardless of the existence of infra-group links between the two entities. ...” Id. One caveat to the use of third parties, Dr. Cosmelli noted, was that “the company who intends to avail itself of the third party’s resources shall prove to be able to have access to them in carrying out the works under the contract.” Id.
This practice, known as avvalimento, was codified in Article 49 of the Italian Code. 40 Id. It “allow[s] the economic operators not having themselves the minimum requirements to participate [in] a bid for the award of a public works contract ] to avail themselves vis a vis the contracting authority of the technical capabilities and the economic and financial standing of third parties.” 41 Id. According to Dr. Cosmelli, the Italian Code authorizes avvalimento to be “admitted not only among companies belonging to the same group but also among not related corn-panies”; however, it is only permitted “with respect to the technical and organizational capabilities and to the economic and financial standing (the existence of which is certified by the SOA certification)....” Id. Therefore, avvalimento does not extend to the “general requirements.” Id.; supra note 39.
According to Dr. Cosmelli, Italian judicial precedent provides that the contracting authority “has the power to decide if the proposed scheme of avvalimento fully grants that the contractor has [at] its disposal the third party’s resources necessary to successfully perform the work.” Pl.’s App. 266. Italian law also sets forth regulations to protect the contracting authority from situations in which avvalimento is used “to circumvent principles and rules established by the public works legislation....” Id. Article 49 of the Italian Code provides that a company participating in a public works contract procurement that “intends to avail itself of [a] third party’s resources shall produce, besides its own SOA certification, if any, and the SOA certification of the company providing the necessary resources (defined ‘ancillary company’),” the following specific documentation:
a declaration certifying that it intends to avail itself of [a] third party’s resources in order to meet the necessary requirements, with the specific indication of such resources that the bidder possesses directly and of such resources possessed by the ancillary company;
a declaration made by both the bidder and the ancillary company stating the existence of the general requirements set forth by Art. 38 of the [Italian] Code; a declaration made by the ancillary company undertaking the obligation, towards the bidder and the contracting authority, to put at disposal of the former the resources for which it is lacking; [and]
a copy of the agreement whereby the ancillary company undertook to put at the dis *118 posal of the bidder the needed resources. In [the] case of companies belonging to the same group, instead of such agreement, the bidder may submit a self-declaration certifying the legal and economic link with the ancillary company.
Id. at 267. Furthermore, Article 49 of the Italian Code provides that “both the bidder and the ancillary company are jointly and severally liable towards the contracting authority for the performance of the contract to be awarded ... and that the bidders’ obligations arising from anti-mafia legislation are to be complied also by the ancillary company.” Id.
Article 49 of the Italian Code pertains to “ordinary avvalimento.” Id. Article 50 of the Italian Code authorizes “permanent av-valimento.” Id. Once an implementing regulation is enacted, Article 50 of the Italian Code will permit a company participating in a public works contract procurement “to use, for five years time, the SOA [certification] of a company belonging to the same group and having control over the bidding company or being under the common control of another company.” Id. In such a circumstance,
the ancillary company shall issue a declaration whereby it undertakes the obligation, also towards the contracting authorities, to put its own resources at the disposal of its affiliate for the entire period of validity of the SOA certification. Also in this case the bidder-affiliate and the ancillary company are jointly and severally liable towards the contracting authority for the performance of the contract.
Id.
d. The Conclusions Section
Dr. Cosmelli next turned to the explanation furnished by BBSSI to the Corps in support of BBSSI’s submission of BBH’s SOA certificate, noting that he “understand[s] that [BBSSI’s] position is” as follows:
[BBSSI] can legally use the SOA certification of its affiliate [BBH] even if the latter has been debarred from contracting with the U.S. Government, since the SOA certification “remained exactly the previous one on the name of [BBAG], with only a name change ” and “all requirements presented to obtain it in the past remained untouched (...) and all values and work categories are unchanged”', to use the SOA certification of [BBH], [BBSSI] only needs to make a self-declaration pursuant to the Presidential Decree [number] 445/2000;
“the rationale for this is to avoid the necessity for a group of issuing multiple certifications for the same issue.”
Id. at 268. Dr. Cosmelli responded that this “explanation is at least incomplete.” Id. He elaborated:
It is true ... that a bidder may use the resources of another company belonging to the same group to be awarded a public works contract. However, since the “av-valimento ” implies that the work will be carried [out] by the company awarded by using the resources (e.g.[,] employees, machinery, know-how, organization, economic and financial standing, etc.) of the ancillary company, it is necessary, pursuant to Art. 49 of the [Italian] Code, that the bidder: (i) specifically declares which such resources are; (ii) submits to the contracting authority an undertaking from the ancillary company whereby the latter agrees to put at the disposal of the bidder the required resources; (iii) submits to the contracting authority a declaration of the ancillary company whereby the latter declares to have itself the general requirements set forth by Art. 38 of the Code ... and (iv) submits to the contracting authority a self-declaration whereby the bidder confirms the infra-group links with the ancillary company.
Id.
Applying these requirements to his understanding of the circumstances, as presented by the Corps, Dr. Cosmelli concluded:
From the documents submitted to us[,] it does not appear that all the above documentation/representations required by Art. 49 of the [Italian] Code have been submitted []or that [BBSSI] has explained the reason why it assumes that they are not necessary. It seems that [BBSSI] with its explanation tries to imply that using the *119 SOA certification of [BBH] is a mere formality while, as we have seen above, this is not the ease. On the contrary, the use by [BBSSI] of [BBHj’s SOA [certificate] implies that, in order to carry out the works, the former will need to use [BBHj’s resources (e.g.[,] employees, machinery, know-how, organization, economic and financial standing, etc.). Therefore, the latter shall confirm to have put at disposal of [BBSSI] the necessary resources to perform the works under the contract to be awarded and to have the necessary general requirements under Art. 38 of the [Italian] Code....
Id. at 269. Additionally, Dr. Cosmelli responded to the Corps’ specific questions. For example, he stated that the Italian laws do not require a single company with several different subsidiaries to hold the SOA certificate. Id. He also confirmed that subsidiary and affiliated companies may utilize the parent company’s SOA certificate, adding that such an arrangement “implies that, in carrying out the awarded works, the subsidiary and affiliated companies will use the resources (e.g.[J employees, machinery, know-how, organization, economic and financial standing, etc.) of the parent company.” Id. Additionally, Dr. Cosmelli stated that affiliated companies are not required to utilize the parent company’s SOA certificate, noting that “[subsidiary and affiliated companies may elect to obtain their own SOA certification.” Id.
In response to the Corps’ question concerning “[w]hat type of relationship a company must have with another one if they are legally able to use their SOA for their technical certification,” Dr. Cosmelli elaborated:
In ease the SOA certification of another company is used to participate [in] a bid for the award of a single public works contract pursuant to Art. 49 of the [Italian] Code, the bidder and the ancillary company must have an agreement whereby the latter puts at the disposal of the former its own resources (e.g.[,] employees, machinery, know-how, organization, economic and financial standing, etc.) for the perform-
ance of the works to be awarded or belong to the same group.
Besides this, it is immaterial what type of relationship exists between the bidder and the ancillary company. The relationship could be established by a mandate agreement, by the lease to the bidder of the business (or of a branch of the business) of the ancillary company or may arise from infra-group commitments.
In case a company intends to avail [itself] of the permanent avvalimento of a[n] SOA certification of a company belonging to the same group pursuant to Art. 50 of the [Italian] Code, 42 the latter must have control over the former or must be under common control of a third company....
Id. at 269-70 (footnote added). In response to the Corps’ question as to whether “they are considered the same company, subsidiaries, or something else,” Dr. Cosmelli stated: “No, they are not. The bidder and the ancillary company cannot be considered the same company. Nevertheless, in order to increase the protection of the contracting authority, Art. 49 of the [Italian] Code expressly provides for the joint and several liability of the ancillary company towards the contracting authority.” Id. at 270. Furthermore, in response to the Corps’ question concerning whether BBSSI “[c]an ... be considered legally separated from a company if they are utilizing another company’s SOA [certificate] for their SOA certifications,” Dr. Cosmelli explained: “From a merely legal perspee-tive[,] the two companies are separated. However, since the bidder uses the ancillary company’s resources and the relevant SOA certification to be awarded a contract and to perform the relevant works, the two companies are acting in pool.” Id.
Lastly, Dr. Cosmelli offered the following observations:
In view of the above, and keeping in mind that we are not qualified to [advise] under U.S. Procurement Laws and that we are not aware of the procedure and criteria established for its application in awarding of [the Corps’] contracts in Italy, we wonder to what extent a company that has been debarred from contracting with the *120 U.S. Government could be allowed, by using the instrument of the avvalimento, to grant to another company its technical capabilities and/or its economic and financial standing to carry out works under a [Corps] contract.
Under Italian law this would not be allowed if the ancillary company has been debarred due to the fact that it does not meet the general requirements set forth by Art. 38 of the [Italian] Code.
We ignore the reasons why [BBH] has been debarred from contracting with the U.S. Government until 2012. However[,] if the decision to debar it was based on one of the circumstances listed as general requirements under Art. 38 of the [Italian] Code, we would have no doubt in stating that such company would not be qualified to give the required support to the bidder to allow the latter to be awarded a contract for public works....
Id.
F. The Corps’ Source Selection Decision Document (“SSDD”)
On January 28, 2010, Mr. Wickham, in his capacity as the contracting officer and SSA, reviewed and approved the SSDD. 43 See id. at 272-304. Mr. Wickham reiterated that the JOC solicitation “utilized the best value concept” and that an award would be made “to the responsible offeror whose proposal, conforming to the Request for Proposal, will be most advantageous to the Government, resulting in the Best Value, price and other non-price factors considered.”' Id. at 274. He also indicated that the Corps received a final proposal revision (“FPR”) from each offeror found to be within the competitive range on or before December 10, 2009. Id. Thereafter, the SSEB evaluated each offer- or’s FPR. 44 Id. at 275.
1. Technical Results
Mr. Wickham indicated that the technical results consisted of “a summarization of the proposals as submitted in the initial and revised versions by the Contractors,” the evaluation of the TEB,” and his independent consideration of the proposals submitted. Id. The following chart, which was reproduced in the SSDD, represents the final consensus ratings as determined by the TEB and as agreed to by the SSA:
Chart 3
Offeror Experience Past Performance Management Plan
BBSSI [...] [■•■] [...]
CMR_NJ_NN_[...]
SKE_NJ_NN_[...]
Pavan [...] [...] [...]
Id.; cf. Chart 2, supra Part I.C.3 (containing the TEB’s “[...]” rating for BBSSI’s experience).
a. Experience Factor in BBSSI’s Proposal
Mr. Wickham indicated that BBSSI initially identified ten projects in partial satisfaetion of the construction experience factor, but noted that all, save for two projects, were performed by BBH, a debarred contractor, and were not considered. Pl.’s App. 276. In response to discussion questions submitted by the Corps, BBSSI identified seven replacement projects. Id.; see also id. at 166-236 (containing copies of BBSSI’s submis *121 sions). In terns of relevancy, Mr. Wickham indicated that these projects
were completed in Italy; contained the multiple categories of building renovations, including floors, doors, walls, windows, external fagades, roofs; repair/replacement of major building systems such as electrical, mechanical, and HVAC and civil work[ ] that ineludes[ ] concrete/asphalt roads and pavements, earthwork, and drainage structures[;j environmental work; and force protection — having between two ... and four ... of each category applicable; the selection of projects demonstrated the ability to manage multiple projects simultaneously. ...
Id. at 276. The TEB identified the following significant strengths in BBSSI’s revised submissions: (1) “very detailed explanation[s] of the scopes of work performed that demonstrated the experience in the categories”; and (2) “multiple experience locations within Italy of Livorno, Aviano and Vicenza.” Id. It also determined that BBSSI’s revised submissions “contained no weaknesses as the firm addressed those found in the initial review and provided to the firm during discussions.” Id.
Following discussions with BBSSI, the TEB raised BBSSI’s experience rating from “[...]” to “[...].” Id. Mr. Wickham reviewed and concurred with this assessment, particularly since BBSSI’s experience “demonstrate[d] an exceptional understanding of the government’s requirements” by offering “numerous significant strengths in its proposal, which ha[d] no weaknesses. The SSA is extremely confident that the Offeror [could] successfully perform the anticipated services with little to very low risk and with a high probability of success.” Id.
b. Past Performance Factor in BBSSI’s Proposal
Mr. Wickham noted that the TEB, after considering the two projects identified as part of BBSSI’s initial proposal, “rated [BBSSI] as [...] based on evidence of successful performance but nothing that explained any highly successful performance.” Id. at 277. With respect to the additional projects BBSSI identified during discussions with the Corps,
relevance of the past performance [was] demonstrated in the high level of relevancy of the construction experience projects; all projects were begun within the last three (3) years; the trends in the Offeror’s performance in ... all the areas ... [was] positive; the firm encountered minor problems that were addressed quickly with appropriate and effective corrective actions taken to ensure progress with project completion that minimized any schedule and cost impacts, and the overall quality was outstanding in most projects; evaluations, letters of appreciation, and commendations from customers; and the satisfactory to outstanding customer comments affirmatively impacted the TEB evaluation of [the] Offeror’s past performance.
Id. Although two TEB members rated BBSSI “[...]” based upon the overall satisfactory nature of the comments, a third member rated BBSSI “[...]” based upon its “ability to excel on the projects.... ” Id. After reviewing BBSSI’s proposal and the findings in the TEB report, Mr. Wickham conducted an independent analysis and made the following determination:
[P]ast performance submission and final evaluations rate an [¶]... ], supported by the highly successful performance record identified for all projects evaluated; the SSA is extremely confident that the Offeror can successfully perform the anticipated services on [its] performance record and overall risk of failure of [BBSSI] to perform is very low.
Id.
c. Management Approach Factor in BBSSI’s Proposal
The organizational chart that BBSSI provided as part of its initial proposal “[...].” Id. It did, [...] “[...],” and it also [...]. Id. at 278. During discussions, BBSSI furnished a new, revised organizational chart that
clearly identifie[d] the lines of authority at all locations in Italy[;] [...] this addition is seen as another significant strength.
Id. Based upon BBSSI’s revised submission, “[t]he original rating of [...] assigned by the TEB has been upgraded to [...]_” Id. Mr. Wickham explained:
[R]eview of the proposals and TEB reports found the increase warranted as the man-
*122 agement plan demonstrates an excellent understanding of the government’s requirements; the proposal offers numerous significant strengths not offset by any weaknesses. The SSA is extremely confident that the Offeror can successfully perform the anticipated services with little to very low risk and a high probability of success.
Id.
2.Price Analysis
Mr. Wickham indicated that, pursuant to FAR 15.404-l(a), an analysis of the offerors’ proposals was performed in order to ensure that the final agreed-to prices were both fair and reasonable. Id. at 286. The following chart, which was reproduced in the SSDD, represents the offerors’ overall price evaluation for the contract total bottom line sum, as compared with the IGE of [...], with the offerors listed in order based on their technical ratings:
Chart 4
Percent Difference Point Difference
Offeror Bottom Line Sum From IGE From IGE
BBSSI [...] [...] [...]
CMR_NJ_NJ_[...]
SKE_NJ__[■■■]
Pavan [...] [...] [...]
Id. at 287. BBSSI, “the highest technically rated offeror ..., submitted the lowest total coefficient for the base bid and all options of [...], which [was] [...] or [...] points below the IGE of [...].” Id.
Mr. Wickham acknowledged that, “[...][, it is] the incumbent contractor and [...].” Id. Nevertheless, BBSSI’s pricing information
[...].
Id.; see also id. at 288 (explaining that BBSSI’s bidding was, [...], which indicated “[...]”). Although Mr. Wickham noted that BBSSI’s pricing provided “[...],” BBSSI’s technical proposal indicated that it “[... ].” Id. at 288. Accordingly, Mr. Wickham determined that BBSSI “[...].” Id.
3.Tradeoff Analysis
Mr. Wickham reiterated that the solicitation contemplated that one award would be made. Id. at 289. BBSSI “provided the lowest price that was [...] lower than the IGE, and significantly lower than other offer-ors....” Id. Moreover, BBSSI had technical ratings that were “superior in the [¶]... ] to the next lowest priced offeror and equal to the ratings of any other offeror....” Id.; cf. id. at 287 (noting that BBSSI was the “highest technically rated offeror”). Accordingly, BBSSI “appeared] to be the best value awardee.” Id. at 289.
4.Responsibility Determination
Before an award could be made, an affirmative responsibility determination was required. Id. To be found responsible, the contractor must first have adequate financial resources to perform the contract or the ability to obtain these resources. Id. Mr. Wickham indicated that BBSSI showed “a minimum risk of business failure, with 0% of other German businesses having a lower failure risk.” Id. BBSSI’s payment trends were “in line with the industry average,” and Mr. Wickham determined that BBSSI had the financial resources to perform the JOC. Id.
Second, the contractor must be able to comply with the required or proposed delivery schedule. Id. Mr. Wickham indicated that BBSSI had “been providing construction services to the Corps ..., through past and on-going contracts, in a timely and satisfactory manner.” Id. He cited no degradation of performance by BBSSI on other government projects and acknowledged BBSSI’s repre *123 sentations in its proposal that it would “be able to comply with the required delivery schedule for the current project.” Id.
Third, the contractor must have a satisfactory performance record. Id. The TEB “evaluation identified that awarding contracts to [BBSSI] represented] best value to the government.” Id. Moreover, BBSSI’s past performance was rated as “excellent,” and Mr. Wickham noted that there “have not been any indications that there [would] be any change in the future to the quality of service.” Id. Additionally, Mr. Wickham acknowledged that all of BBSSI’s references would not hesitate to utilize BBSSI again. Id.
Fourth, the contractor must have a satisfactory record of integrity and business ethics. Id. BBSSI’s records of performance were “adequate to determine a satisfactory record of integrity-” Id. Mr. Wickham also indicated that no information refuted BBSSI’s reputation for “high standards of integrity and ethics.” Id.
Fifth, the contractor “must have the necessary organization, experience, accounting and operation controls, and technical skills or the ability to obtain them[,] including such elements as production control procedures, property control systems and quality assurance measures applicable to services to be performed by the prospective contractor and subcontractors.” Id. at 290. BBSSI, Mr. Wickham indicated, demonstrated the required abilities, skill, experience, and operational control to be able to perform the JOC. Id. Despite this finding, he noted: “[P]er their SOA [certificate] and awalimento, [BBSSI is] required to utilize the capabilities of [BBH], [which] is currently debarred from U.S. Government contracts.” Id.
Notwithstanding the determination that BBSSI must utilize the capabilities of BBH, Mr. Wickham indicated that there was “no doubt” that BBSSI possessed the ability to perform. Id. He cited the TEB’s determination that BBSSI’s management plans “artieu-late[d] complete understanding of all requirements and presented] sound approaches for effectively controlling, supervising, administering, managing, and performing the required work effort....” Id. Additionally, BBSSI’s management staff had “outstanding technical and operational education and experience,” and BBSSI’s proposal reflected “outstanding detail and a very thorough understanding of the technical requirements.” Id. Furthermore, BBSSI’s technical and management approaches satisfied all of the government’s minimum objectives and requirements. Id.
“Based on an integrated assessment of all proposals in accordance with the specified evaluation factors,” Mr. Wickham concluded that an “award to [BBSSI] offer[ed] the best value to the Government. The proposal provide[d] strengths and demonstrate^] an understanding of the proposal requirements.” Id.
Sixth, the contractor must have the necessary production, construction and technical equipment, and facilities or an ability to obtain them. Id. With regard to this factor, Mr. Wickham stated:
It is apparent by the initial technical evaluation of the Contractors’ proposals that the firms are fully qualified to provide and maintain the needed services, but again, this may mean, due to [BBSSI’s] use of [BBH]’s SOA, that [BBSSI is] also required to utilize the assets and equipment of a debarred firm in order to perform the technical requirements of the contract [and] that [it has] relied on [BBH]’s assets and structure in order to use their SOA certification.
Id. Nevertheless, BBSSI’s competency and past performance information were not questioned. See id. (“The contractors’ competencies have been demonstrated and verified by the review of the past performance information provided by the firms’ customers_”).
Seventh, the contractor must be otherwise qualified and eligible to receive an award under the applicable laws and regulations. Id. Mr. Wickham noted that BBSSI had “performed successfully and satisfactorily on previously issued [Corps] contracts and there [were] no indications of financial, technical,] or personnel difficulty.” Id. Moreover, he acknowledged that BBSSI possessed a responsible financial rating. Id. Nevertheless, Mr. Wickham questioned the relationship be *124 tween BBSSI and BBH on two grounds. First, BBSSI
provided several indications that it is affiliated with [BBH] and may, in fact, be a mechanism for [BBH] to submit proposals and to continue to contract with the U.S. Government. Therefore, in order to make an affirmative responsibility determination for [BBSSI] for this award and others, it was necessary to look at the whole record ..., based on various evidence and documents that have been received from this contractor which indicate this relationship. For example, 8 out of the 10 projects submitted as Experience and Past Performance in their original proposal were performed by [BBH]. Although we conducted discussions for other reasons, and they provided alternate submissions with a revised proposal, it was not until the U.S. Government notified them of the inherent problem and the attempt to receive technical credit for efforts performed by a debarred firm that this was even changed, months after the debarment happened.
Id. Second, BBSSI was utilizing BBH’s SOA certificate while BBH was debarred. Id. Specifically,
[a]round the time of discussions, early September 2009, it was noticed that [BBSSI] was submitting their required SOA [certificate] for this contract in the name of [BBH] with the address in Kaiserslautern. When questioned, [BBSSI] represented to us that the name of the SOA [certificate] holder was a mere formality and that they had no legal ability under Italian law to obtain [an] SOA [certificate] in their name.... [T]his explanation appeared concerning not only because the SOA [certificate] holder was debarred, but also because the firm with whom a potential contract would be established ([BBSSI]) was not qualified to legally perform the construction work in Italy without this SOA [certificate]. At that point, we notified [BBSSI] that we were seeking expert advice and then hired an Italian legal expert and received his opinion on the 8th of January, 2010, rejecting the [BBSSI] representations as to Italian law and advising us that use of the [BBH] SOA [certificate] would indicate a relationship between the firms....
Id.
Mr. Wickham then offered his own interpretation of Dr. Cosmelli’s opinion:
[BBSSI] has submitted [an] SOA certificate in the name of [BBH] with an address in Kaiserslautern, Germany as well as a document entitled “self declaration” which attests that they have executed an “awali-mento infragruppo[,]” which is required by Italian law as a legal document that allows one company to use another company’s SOA [certificate]. However, per Italian law, the awalimento is, in fact, an agreement or contract between the two entities and has prescribed provisions and consequences to prevent abuse by contractors and to protect contracting parties so that they are, in fact, contracting with qualified companies. This Law is D.P.R. [number] 163/2006, articles 49 and 50. Some of the provisions state that the ancillary company (in this case, [BBH]) must provide to the bidding company (in this case, [BBSSI]) full disposal of its assets and resouree[s]— technical, financial, employees, machinery, know-how, organization, economic and financial standing, etc. and the bidding company shall avail itself of these assets. Moreover, the law provides that both the bidder and the ancillary company are jointly and severally liable towards the contracting party for the performance of the contract to be awarded and that the bidders’ obligations arising from anti-mafia legislation are also to be complied with by the ancillary company. The law further states that the bidding company must either be controlled by the ancillary company or they must be jointly controlled by a third company. Lastly, the law provides that the ancillary company work as a subcontractor to the bidding company.
The SOA certificate is legally required to perform construction work in Italy. The use of a debarred contractor’s SOA [certificate], together with the awalimento declaration accompanying it that certifies that [BBSSI] has the legal right to use [BBH]’s SOA [certificate], [means that] under Italian [law], the firm must make *125 use of [BBH]’s technical and financial resources, is either controlled by [BBH] or the two (2) firms are jointly controlled by a third party, and [is] jointly and sever-ably liable [with BBH] for their work when using the SOA [certificate] — evidencing that the firms are “affiliated” in accordance with the definition at FAR Part 9.403 and that a debarred firm, [BBH], is attempted to indirectly propose on this solicitation through its “affiliate,” [BBSSI]. Therefore, per [FAR] Part 9.405, [BBSSI] is ineligible to receive an award as a debarred “contractor” ....
Id. at 291. Because BBSSI failed “to meet the standard ... of a responsible contractor,” Mr. Wickham concluded that it was “not eligible to receive award of this contract.” Id.
Consideration of BBSSI’s proposal, as reflected within the SSDD, concluded with Mr. Wickham’s determination that BBSSI was not a responsible contractor within the meaning of FAR Subparts 9.1 and 9.4. Id. As a result, BBSSI, despite being found to have submitted a proposal that offered the best value before Mr. Wickham issued his responsibility determination, was “considered ineligible for providing the required construction services.” Id. Because BBSSI was not eligible for the JOC award, a best value determination based on the remaining offerors was necessary. Id. at 292. To that end, the remainder of the SSDD considered the other three offerors’ proposals, Id. at 292-96, and Mr. Wickham ultimately concluded that CMR’s proposal presented the best value to the government, Id. at 293. He then determined that CMR was a responsible contractor and was eligible for providing the required construction services. Id. at 295.
5. Source Selection Decision
Mr. Wickham — based upon the findings of the TEB, his independent analysis of the proposals, and a comparison “giving appropriate consideration to the evaluation criteria set forth in the solicitation and Source Selection Plan and their relative importance”— determined that CMR’s proposal was the “the best overall proposal and most beneficial to the Government.” Id. at 296. Citing his “broad discretion” to make the source selection decision, Mr. Wickham indicated that he compared the strengths, weaknesses, deficiencies, and prices of the competing offerors in order to determine which proposal reflected the best value. Id. He then concluded that a single firm-fixed-price contract award would be made to CMR. Id.; see also id. (stating that it was “advantageous and in the best interest of the Government to award one (1) contract” to CMR).
G. Post-Award Communications Between the Corps and BBSSI
1. Notification of Unsuccessful Offeror to BBSSI
On January 28, 2010, Mr. Wickham notified BBSSI in writing that it was ineligible to receive the JOC award. Id. at 305. First, he noted that seven proposals, including BBSSI’s proposal, “were included in the technical evaluations upon completion of the Contract Specialist’s [initial] review for compliance with the solicitation instructions in accordance with section 00100.” Id. Second, he indicated that, although BBSSI “provided an excellent technical submission and a total evaluated bottom-line coefficient of [...], [it was] ineligible to receive an award.” Id. Specifically, BBSSI’s use of BBH’s SOA certificate when BBH was debarred — and the original submission of eight projects awarded to BBH — rendered BBSSI “not responsible and ineligible for award in accordance with FAR 9.103, 9.403 and 9.405(a).” Id. Mr. Wickham acknowledged that BBSSI was not on the EPLS; however, he indicated that BBSSI has chosen to use the SOA certificate of a debarred firm and that rendered BBSSI ineligible for the JOC award. Id.
With regard to BBSSI’s use of BBH’s SOA certificate, Mr. Wickham elaborated:
The use of a debarred contractor’s SOA [certificate,] together with the awalimento declaration accompanying it that certifies that [BBSSI] has the legal right to use the [BBH] SOA [certificate], under Italian law the firm must make use of [BBH]’s technical and financial resources, is either controlled by [BBH] or the two (2) firms are jointly controlled by a third party, and [is] jointly and severably liable [with BBH] for their work when using the SOA [eertifi- *126 cate] — evidencing that the firms are “affiliated” in accordance with the definition at FAR Part 9.403 and that a debarred firm, [BBH], is attempting to indirectly propose on this solicitation through its “affiliate,” [BBSSI]. Therefore, per [FAR] Part 9.405, [BBSSI] is ineligible to receive an award as a debarred “contractor,” as defined by FAR 9.403.
Id. Mr. Wickham indicated that the revised technical proposal and price coefficient submitted by CMR constituted the best value for the government. Id. at 306.
2. BBSSI’s Request for a Debriefing
On January 29, 2010, BBSSI formally requested a debriefing. Id. at 307-09. Citing FAR 15.506(d), BBSSI sought information concerning (1) the Corps’ evaluation of the significant weaknesses or deficiencies in its proposal; (2) the overall evaluated cost, technical rating, and past performance information for CMR; (3) the overall ranking of all offerors; (4) a summary of the rationale for the award to CMR; (5) “the make and model of the item to be delivered by the successful offeror”; and (6) “Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.” 45 Id. at 307-08. BBSSI also submitted numerous questions concerning the evaluation. First, it requested “the legal basis, including a legal citation, for [the Corps’] statement that ‘under Italian law the firm must make use of [BBH]’s technical and financial resources.’” Id. at 308. Second, it asked what facts the Corps relied upon to determine that BBSSI “must or would rely upon the technical and financial resources of [BBH] in performing the contract work.” Id. Third, it requested the basis for the Corps’ assertion that BBH controlled BBSSI and the facts utilized by the Corps to make this determination. Id. Fourth, it requested the basis for the Corps’ assertion that BBH and BBSSI were controlled by a common third party. 46 Id. It also posed the following questions:
• Whether it was the Corps’ position that a finding of “affiliation” between BBSSI and BBAG was the single determining factor that rendered BBSSI ineligible for the JOC award.
• What facts, including those derived from BBSSI’s proposal and obtained “external to the proposal,” did the Corps rely upon in determining that BBH was attempting to indirectly propose on the JOC through BBSSI?
• Whether the Corps considered BBSSI’s proposal during the best value analysis and, if so, where its proposal ranked against the remaining offerors.
Id. Finally, BBSSI posed a series of questions related to the Corps’ conclusion that eight projects identified in its initial proposal had been awarded to BBH, particularly in light of the Corps’ December 10, 2009 discussion response stating that BBSSI satisfied and exceeded the experience factor requirements. 47 Id. at 308-09.
3. The Corps’ Written Debriefing
The Corps provided a written debriefing to BBSSI on February 2, 2010. Id. at 310-14. *127 With respect to the Corps’ overall evaluation of weaknesses or deficiencies pursuant to FAR 15.506(d)(1), Mr. Wickham noted that the Corps found no weaknesses or deficiencies in BBSSI’s submission related to the experience, past performance, management approach, and price factors. Id. at 310. With respect to a summary of the rationale for award pursuant to FAR 15.506(d)(4), Mr. Wickham explained:
Although your technical proposal[, as] submitted!;,] received highly-rated adjectival ratings during evaluation and your price coefficient proposal was lower than the price proposal of the successful offeror, the Government determined ... the bas[is of] a non-responsibility determination at point (g) of FAR 9.104-1 — The Contractor must be otherwise qualified and eligible to receive an award under applicable laws and regulations. Your firm’s use of [an SOA certificate] registered to ... [BBH], wh[ieh] is currently debarred, makes your firm ineligible to receive an award.
In accordance with FAR 15.402 and [Defense Federal Acquisition Regulation Supplement Procedures, Guidance and Information] 215.402(1)[,] Contracting Officers must purchase supplies and services from responsible sources at fair and reasonable prices. [BBSSI] has not been determined to be a responsible contractor as it has failed at point (g), the requirements of FAR Part 9.1 and Section 00100 of the solicitation ... and is therefore considered ineligible for providing the required construction services. The Contracting Officer has determined that your firm is not responsible within the meaning of FAR Subpart 9.1 and 9.4, Responsible Prospective Contractors.
Id. at 311.
In response to BBSSI’s questions concerning the extent to which the Corps adhered to source selection procedures, regulations, and other authorities, Mr. Wickham furnished the following answers:
1. The legal basis for the Corps’ determination that, under Italian law, BBSSI must make use of BBH’s technical and financial resources was “BBSSI’s use of a debarred firm’s resources and assets (SOA [certification] ) to propose on this solicitation.” Id.
2. The facts relied upon by the Corps in determining that BBSSI must or would rely upon the technical and financial resources of BBH “were that BBSSI presented [an] SOA [certificate] in the name of a debarred firm and the accompanying declaration stating that an awalimento had been executed between BBSSI and [BBH], which legally enable[d] BBSSI to utilize a debarred firm’s SOA [certificate].” Id.
3. The Corps made no statement that BBH controls BBSSI. The Corps “relied on the SOA [certificate] presented by BBSSI in [BBH]’s name and the accompanying Declaration stating that a permanent awalimento infra-gruppo had been executed” between BBSSI and BBH, “which legally enable[d] BBSSI to utilize the debarred firm’s SOA [certificate] for the three year Italy JOC ... period.” Id.
4. In determining that BBH and BBSSI were controlled by a common third party, the Corps “relied on BBSSI’s own submission of [an] SOA [certificate] in a debarred firm’s name to be qualified to bid on and to perform work required under this contract.” Id. at 312.
5. The Corps did not allege that BBAG was the controlling third party; instead, it stated that
BBSSI’s declaration attached to the SOA [certificate] in a debarred company’s name states that an awalimento infra-gruppo has been executed between *128 BBSSI and [BBH], which has particular implications and relationships under Italian Law 16B/2006 and EU Directive 2004/18. Please also note the language on the BBSSIH submitted Declaration and the language from the DLA Piper letter to [the Corps] regarding the Declaration submitted by BBSSI and the solicitation requirement that [an] SOA [certificate] must be available and valid throughout the contract period.
Id.
6. With regard to whether the Corps found an affiliation between BBSSI and BBH that rendered BBSSI ineligible, “it is not the affiliation per se, but the use of a debarred company’s resources and assets (SOA [certification]) to propose on this solicitation.” Id.
7. The Corps previously answered questions related to its determination that BBH was attempting to indirectly propose on the solicitation through BBSSI, reiterating: “All documents and information relied on were all provided in the BBSSI proposal submission and various discussions with BBSSI personnel.” Id.
8. The Corps confirmed that BBSSI’s proposal was considered during the best value determination. Id.
9. The Corps noted that seven projects BBSSI provided in its initial proposal named BBAG as the awardee and that “[m]uch of the past performance and other correspondence ... attached to the Italy JOC proposal to support the Experience and Past Performance criteria[ ] provided by BBSSI[ ] was addressed to personnel in Kaiserslautern, to [BBH].” Id. at 313. Additionally, the Corps indicated that BBSSI’s revised proposal submission “in response to discussions was carefully considered and improved the technical ratings of the firm, however[,] it was not relevant to the responsibility determination, which [was] a threshold matter and the reason for non-selection.” Id.
10. In response to BBSSI’s inquiry concerning the basis for its exclusion from the competition, the Corps’ position was “one of responsibility, not debarment, which [was] demonstrated by BBSSI utilizing the resources and assets (SOA [certificate]) of a debarred company to propose on the Italy JOC ..., a United States Government contract.” Id.
11. BBSSI did not fail to satisfy the technical requirements under the experience factor, and the Corps’ “non-selection [of BBSSI] for award was based on responsibility and the use of a debarred firm’s resources and assets to propose on this solicitation through the use of the debarred firm’s SOA [certificate].” Id.
12. The factual or legal basis for the Corps’ determination that BBH was proposing through BBSSI was BBSSI’s proposal, wherein BBSSI, according to the Corps,
presented that it was technically able to meet the Solicitation’s SOA [certification] requirement. The SOA [certificate] that BBSSI provided and the accompanying declaration stating that an awalimento had been executed between BBSSI and [BBH], which legally enabled BBSSI to utilize [BBH]’s SOA [certificate], was in the name of a debarred firm. BBSSI [was] relying on the technical capabilities and resources of a debarred firm through the use of a debarred firm’s SOA [certificate] to qualify itself and to execute work under this contract.
Id. at 313-14.
On February 4, 2010, BBSSI filed a protest with the United States Government Accountability Office (“GAO”). 48 Id. at 315-37.
H. Post-JOC Solicitation Discussions Between the Corps and BBSSI
I. Reconsideration of the JOC Award and Participation in the Italy MATOC Procurement
On February 23, 2010, during the pen-dency of its protest before the GAO, BBSSI, through counsel, contacted Ms. Denzel to discuss a resolution to several outstanding issues. Id. at 387. First, counsel advised the Corps that BBH had been removed from *129 the EPLS. Id. Accordingly, counsel requests ed that the Corps take corrective action on the JOC procurement by reevaluating BBSSI’s responsibility or eligibility to compete. Id. at 388-89. Second, counsel indicated that Mr. Wickham, on February 16, 2010, advised BBSSI that it was unqualified to receive the Italy MATOC solicitation because BBSSI, in response to the presolicitation notice, submitted BBH’s SOA certificate. 49 Id. at 391. Counsel sought to avoid filing a protest related to the Italy MATOC and to reach “a potential basis for agreement and a starting point to resolve these mat-ters_” Id. at 388.
Ms. Denzel responded to counsel on February 25, 2010, stating that the JOC award was made when BBH was “clearly ineligible for award and listed on the Excluded Parties List. It is not possible to terminate a legitimate award made to an eligible, responsible contractor providing the best value in accordance with the solicitation based on future events that had not yet occurred at the time of the award.” Id. at 396. To terminate the contract award to CMR in light of changed circumstances, Ms. Denzel noted, “would create an impossible contracting system where no awards could be sustained_” 50 Id. With regard to the Italy MATOC solicitation, Ms. Denzel acknowledged that “the status of BBH is in a sort of limbo,” but she represented that the Corps was willing to cooperate and provide BBSSI with the Italy MA-TOC solicitation documents. 51 Id. at 397.
2. Issues Related to the Predecessor JOC
In January 2010, several electronic-mail communications were exchanged between the Corps and BBSSI regarding various issues related to the predecessor JOC. On January 14, 2010, Mario Eccel, BBSSI’s Senior Project Manager, wrote to Howard L. Mosley, Jr., Project Engineer at the Corps, and indicated that BBSSI (1) could not work for only one week per month, and (2) would, in accordance with prior discussions and agreements, perform construction related to an access trail in August 2010. Id. at 421. Mr. Mosely responded on January 15, 2010, stating that, “because of the disbarment issue, we cannot extend the contract. I am open to any options you may have for the time schedule, but as it stands, your schedule should not go beyond the contract completion date.” Id. at 420.
Additionally, Mr. Hagner, on January 15, 2010, contacted the Corps to express concern that the Corps considered BBSSI affiliated with BBH, effectively excluding it from ongoing solicitations. Id . at 433. Mr. Hagner noted that the Corps “already stopped all negotiations on Task Orders and Modifications].” Id. He also reiterated that BBSSI was not associated with any debarred or suspended entity. Id.
*130 On March 8, 2010, counsel for BBSSI contacted Ms. Denzel concerning the existing JOC for which BBSSI was performing the first option period. Id. at 411; supra note 22. Counsel noted that the first option period was set to expire on March 10, 2010. Pl.’s App. 411. He also noted that the Corps had not exercised the second option period and opined that “this likely was due to the BBH debarment.” Id. Counsel requested that the Corps reconsider is position, to the extent the BBH debarment factored into its decision not to exercise the second option period, and consider exercising the option, noting that “exercise of the option is critical and in the best interest of the Government.” Id. In response, Ms. Denzel indicated that the Corps’ capacity on the predecessor JOC “has been exhausted[,] so we cannot exercise the option in any case.” Id. at 410. She explained:
There is only enough saved for modifications that we know we need on existing task orders. The new JOC was put in place to cover our needs this year once it was realized that capacity on the old one was being used much quicker than normal. BBSSI’s unknown status contributed to the original issuance of the solicitation as well as changes to some of our contracting regulations and the Italian safety and environmental laws, but it was put on hold until we knew, without a doubt, that we had a serious requirement for a new JOC after fiscal year end with the exhausted capacity. 52
Id. (footnote added).
II. PROCEDURAL HISTORY
A. Proceedings Before the GAO
In its initial protest before the GAO, BBSSI alleged that the Corps unreasonably and improperly determined that BBSSI was ineligible for the JOC award based upon its need to utilize the resources and assets of BBH, a debarred firm. Id. at 315. According to BBSSI, it submitted a proposal in which it represented performance based exclusively upon its own assets and resources. Id. at 316. Moreover, BBSSI argued that the Corps’ ineligibility determination effectively constituted a debarment of BBSSI. Id. Specifically, it asserted that the Corps (1) erroneously determined that BBSSI failed to satisfy the SOA certificate requirement, Id. at 323-27, (2) ignored relevant information when it determined that BBSSI was not responsible, Id. at 327-30, and (3) subjected BBSSI to a de facto debarment, Id. at 331-34. On March 12, 2010, BBSSI asserted a supplemental protest ground based upon additional documents produced by the Corps. Id. at 338-47. In its supplemental brief, BBSSI alleged that the Corps unreasonably procured and relied upon an Italian legal opinion to determine that BBSSI was ineligible for the JOC award. 53 Id. at 344-46.
The GAO denied BBSSI’s protest on May 13, 2010. Id. at 381-86. In response to BBSSI’s challenge to Mr. Wickham’s negative responsibility determination, the GAO stated that a contracting officer “is vested with a wide degree of discretion and, of necessity, must rely upon his or her business judgment in exercising that discretion.” Id. at 383. The GAO explained that it generally does not question a negative determination of responsibility because the agency “must bear the effects of any difficulties experienced in obtaining the required performance.” Id. It noted, however, that negative determinations of responsibility could be challenged upon a showing by the protester of bad faith or a lack of any reasonable basis for the determination. Id.
The GAO acknowledged that Mr. Wick-ham, “based on the information available to him, ... concluded that BBSSI ... provided indications that it may have been ‘a mechanism for [BBH] to submit proposals and to continue to contract with the U.S. Government.’ ” Id. at 383. It determined that Mr. Wickham relied upon “extensive information” that “supported the view that BBSSI and *131 BBH were closely related, and the resultant appearance that BBH, a debarred contractor, would be involved in performing the contract, as it had been under prior contracts.” Id. at 384. The GAO also determined that Mr. Wickham’s concerns about BBSSI’s reliance upon BBH’s SOA certificate were reasonable, citing his consideration of Dr. Cosmelli’s opinion. Id. at 384. Furthermore, the GAO concluded that the Corps “was not bound to accept BBSSI’s representations and disregard its SOA [certificate] arrangement with BBH, together with the other substantial information bearing on the firms’ relationship.” 54 Id.
With respect to BBSSI’s contention that Mr. Wickham misinterpreted the Italian legal opinion, the GAO determined that BBSSI failed to establish that the interpretation was incorrect or unreasonable. Id. at 385. Instead, according to the GAO, BBSSI provided “no definitive information, other than its own legal opinion,” see supra note 53, concerning the use of another company’s SOA certificate without involving that company in the performance of the contract, Pl.’s App. 384. Moreover, the GAO, citing Dr. Cosmel-li’s opinion, explained that the statements contained therein were “all reasonably supportive of the contracting officer’s conclusion that BBSSI’s reliance on BBH’s SOA [certificate] was indicative of an intent to ‘have at its disposal the resources of [BBH] to carry out the [contract].’ ” Id. (quoting the SSDD) (alterations in original).
The GAO also rejected BBSSI’s assertion that the SOA certificate requirement “was a definitive responsibility criterion” that BBSSI satisfied via submission of BBH’s SOA certificate. Id. at 386. According to the GAO, “BBSSI was not found nonrespon-sible due to failure to meet the solicitation requirement for submission of an SOA” certificate. Id. Instead, the GAO explained, Mr. Wickham determined that BBSSI was not responsible based upon its submission of BBH’s SOA certificate and the circumstances surrounding the two entities’ affiliation. Id.
Finally, the GAO determined that BBSSI’s de facto debarment argument lacked merit. It indicated that a de facto debarment occurs “when the government uses nonresponsibility determinations as a means of excluding a firm from government contracting or subcontracting, rather than following the debarment regulations and procedures set forth at FAR subpart 9.4.” Id. One key element of a de facto debarment, the GAO noted, was an agency’s intent “not to do business with the firm in the future.” Id. Based upon its examination of the record, the GAO concluded that there was “no[ ] showing] that the agency intends to exclude [BBSSI] from other procurements based on its specific determination here.” Id.
B. Proceedings Before the Court of Federal Claims
A redacted version of the GAO’s decision was not available for dissemination to BBSSI until June 18, 2010. Id. at 380. On July 26, 2010, BBSSI filed a complaint in the Court of Federal Claims. The complaint contains six counts: (1) wrongful determination by the Corps that BBSSI was not responsible; (2) de facto debarment of BBSSI during the period of time when BBH was listed on the EPLS; (3) lack of meaningful discussions by the Corps; (4) unsupportable determination by the Corps to not make multiple awards under the JOC procurement; (5) violations of FAR 1.102-2(c) and FAR 1.102(b)(3) based upon the Corps’ exclusion of BBSSI; and (6) breach of an implied-in-fact contract by the Corps to consider proposals fairly. Compl. ¶¶ 66-97. BBSSI requests that the court *132 issue (1) a preliminary injunction enjoining the Corps from issuing task orders to CMR and to suspend performance of any existing task orders, and (2) a declaratory judgment stating that the Corps’ determination that BBSSI was nonresponsible and ineligible for the JOC award was arbitrary, capricious, an abuse of discretion, contrary to law, and without a rationale basis. Id. Wherefore 1fflA-B. Furthermore, BBSSI requests that the court issue a permanent injunction directing the Corps to (1) award the JOC to BBSSI, (2) make a second award under the JOC to BBSSI, or (3) reopen discussions, reevaluate its needs, or reeompete the JOC. 55 Id. Wherefore ¶ C.
During briefing of plaintiffs motion for a temporary restraining order and preliminary injunction, defendant moved to dismiss the complaint on both RCFC 12(b)(1) and 12(b)(6) grounds. In support of its motion to dismiss, defendant contends that BBSSI waited over ten weeks after the GAO’s decision to file its complaint and, as a result, lacks standing to bring the protest. The court, on August 13, 2010, heard oral argument on both motions. As indicated in note 1, supra, the court issued a temporary restraining order on August 20, 2010.
III. LEGAL STANDARDS
A. Bid Protests
The Court of Federal Claims has “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 or a proposed procurement,” 28 U.S.C. § 1491 (b)(1), and may “award any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs,” Id. § 1491(b)(2). Interested parties are those “prospective bidders or offerors whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” Am. Fed’n of Gov’t Emps., AFL-CIO v. United States, 258 F.3d 1294 , 1302 (Fed.Cir.2001) (citing 31 U.S.C. § 3551 (2)(A) (Supp. IV 1998)). Defendant challenges the court’s jurisdiction over BBSSI’s complaint. See Parts IV.A.1-3, infra.
The court reviews the procuring agency’s action pursuant to the standards set forth in 5 U.S.C. § 706 . See 28 U.S.C. § 1491 (b)(4). Although section 706 contains several standards, “the proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706 (2)(A): a reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Banknote Corp. of Am. v. United States, 365 F.3d 1345 , 1350 (Fed.Cir.2004). Although “it is well-settled that procurement officials are entitled to broad discretion in the ... application of procurement regulations,” Metcalf Constr. Co. v. United States, 53 Fed.Cl. 617, 622 (2002), the court may set aside a procuring agency’s contract “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). The protester must show, by a preponderance of the evidence, that either ground justifies a set aside of the contract award. AmerisourceBergen Drug Corp. v. United States, 60 Fed.Cl. 30, 35 (2004); see also Gulf Group Inc. v. United States, 61 Fed.Cl. 338, 351 (2004) (articulating the preponderance of the evidence standard).
In order to succeed on the first ground, the protester “must show the decision was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.’” Med. Devel. Int’l, Inc. v. United States, 89 Fed.Cl. 691, 700 (2009) (quoting 5 U.S.C. § 706 (2)(A) (2006)). Where “the challenge is brought on the second ground, the disappointed bidder must show ‘a clear and prejudicial violation of applicable statutes or regulations.’” Impresa *133 Construzioni Geom. Domenico Garufi, 238 F.3d at 1333 (quoting Kentron Haw., Ltd. v. Warner, 480 F.2d 1166 , 1169 (D.C.Cir.1973)); see also Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.Cir.2005) (holding that, if the procuring agency’s decision was made in violation of the applicable statutes, regulations, or procedures, then the court must “determine, as a factual matter, if the bid protester was prejudiced by that conduct”); Data Gen. Corp. v. Johnson, 78 F.3d 1556 , 1562 (Fed.Cir.1996) (stating that, in addition to showing “a significant error in the procurement process,” a protester must show “that the error prejudiced it”). A protester must satisfy both requirements — significant and prejudicial error — in order to prevail. 56 Bannum, Inc., 404 F.3d at 1351 .
“To establish prejudice ..., a protester must show that there was a ‘substantial chance’ it would have received the contract award absent the alleged error.” Banknote Corp. of Am., 365 F.3d at 1350 (quoting Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed.Cir.2001)); see also Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed.Cir.1996) (“[F]or [a protester] to prevail[,] it must establish not only some significant error in the procurement process, but also that there was a substantial chance it would have received the contract award but for that error.”); Data Gen. Corp., 78 F.3d at 1562 (“[T]o establish prejudice, a protester must show that, had it not been for the alleged error in the procurement process, there was a reasonable likelihood that the protester would have been awarded the contract.”). The “substantial chance” test creates a “reasonable balance between the importance of (1) averting unwarranted interruptions of and interferences with the procurement process and (2) ensuring that protesters who have been adversely affected by allegedly significant error in the procurement process have a forum available to vent their grievances.” Data Gen. Corp., 78 F.3d at 1563. A protester need not show under the “substantial chance” test that, “but for the alleged error, [it] would have been awarded the contract.” Id. at 1562. Rather, it must “demonstrate more than a ‘mere possibility that [it] would have received the contract but for the error [in the procurement process].”’ Asia Pac. Airlines v. United States, 68 Fed.Cl. 8, 18 (2005) (quoting Data Gen. Corp., 78 F.3d at 1562); cf. Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d, 1366, 1370-71 (Fed.Cir.2002) (stating that, where a protester claims that the government was obligated to rebid the contract, as opposed to where the protester claims it should have been awarded the contract during the original bid protest, the protester “need only establish that it ‘could compete for the contract’ if the bid process were made competitive” (quoting Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1334 )).
B. Standing
Standing constitutes a “threshold requirement in every federal action.” Myers Investigative & Sec. Servs., Inc., 275 F.3d at 1369 . As an “indispensable part of the plaintiffs case,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992), standing is “not a mere pleading requirement,” Night Vision Corp. v. United States, 68 Fed.Cl. 368, 391 (2005). “[T]he question of standing,” the United States Supreme Court (“Supreme Court”) explained, “is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975). In Lujan , the Supreme Court summarized three elements that comprise standing. 504 U.S. at 560 , 112 S.Ct. 2130 . First, the plaintiff must have suffered an “ ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent’, not ‘conjectural’ or ‘hypothetical.’ ” Id. (citation & footnote omitted). Second, “there must be a causal connection between the injury and the conduct complained of.” Id. In other words, the injury “has to be ‘fairly *134 ... traee[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.’ ” Id. (alterations in original) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 , 96 S.Ct. 1917 , 48 L.Ed.2d 450 (1976)). Third, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” Id. at 561, 112 S.Ct. 2130 (quoting Simon, 426 U.S. at 38, 43 , 96 S.Ct. 1917 ). The burden of establishing these elements of standing rests with the party invoking federal jurisdiction. See Id. Standing must be determined “as of the commencement of suit.” Rothe Dev. Corp. v. Dep’t of Def., 413 F.3d 1327, 1334 (Fed.Cir.2005).
“[T]he plaintiff in a bid protest must show that it has standing to bring the suit.” L-3 Global Commc’ns Solutions, Inc. v. United States, 82 Fed.Cl. 604, 608 (2008) (citing Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed.Cir.2003)). The Tucker Act provides that a bid protest action may be brought by an “interested party objecting to a solicitation by a Federal agency.” 28 U.S.C. § 1491 (b)(1). “The pivotal element of standing in a bid protest is whether a protestor qualifies as an ‘interested party' under [section] 1491(b)(1).” RhinoCorps Ltd. v. United States, 87 Fed.Cl. 481, 485 (2009). The United States Court of Appeals for the Federal Circuit (“Federal Circuit”) has construed the term “interested party” as synonymous with the term “interested party” defined in the Competition in Contracting Act of 1984 (“CICA”), 57 Pub.L. No. 98-369, 98 Stat. 494 (codified as amended at 31 U.S.C. §§ 3551-3556 ). See Am. Fed. of Gov’t Emps., AFL-CIO, 258 F.3d at 1302. In order to have standing as an “interested party,” a protester must satisfy a two-part test. First, the protester must demonstrate that it is an actual or prospective bidder. Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed.Cir.2006); see also MCI Telecom. Corp. v. United States, 878 F.2d 362, 365 (Fed.Cir.1989) (noting that “one who has not actually submitted an offer must be expecting to submit an offer prior to the closing date of the solicitation”). Second, the protester must demonstrate that it has a direct economic interest in the procurement. Rex Serv. Corp., 448 F.3d at 1307 .
In addition to satisfying the “interested party” requirement under section 1491(b)(1), a protester must show that any alleged errors caused prejudice. See Data Gen. Corp., 78 F.3d at 1562 (“[T]o prevail in a protest the protester must show not only a significant error in the procurement process, but also that the error prejudiced it.”); Textron, Inc. v. United States, 74 Fed.Cl. 277, 283 (2006) (“[A] successful protestor must also establish that the errors complained of caused prejudice.”). Therefore, “prejudice (or injury) is a necessary element of standing.” Myers Investigative & Sec. Servs., Inc., 275 F.3d at 1370 .
Confusion over the standard of prejudice necessary for establishing standing exists “because, in addition to being an element of standing, a showing of prejudice is required before injunctive relief is granted.” Textron, Inc., 74 Fed.Cl. at 284 ; see also Bannum, 404 F.3d at 1351 (requiring that a protester demonstrate a significant and prejudicial error in order to succeed on the merits); Banknote Corp. of Am., 365 F.3d at 1351 (requiring that the protester show it had a “substantial chance” of receiving the contract award in order to demonstrate prejudice); cf. Rex Serv. Corp., 448 F.3d at 1308 (requiring that a putative, prospective bidder establish that it had a “substantial chance” of receiving the contract as proof of possessing a direct economic interest). As these cases suggest, the court “looks twice at prejudice, first weighing prejudice as it pertains to standing, and then more thoroughly weighing prejudice to determine whether plaintiff shall be afforded relief.” A & D Fire Prot., Inc. v. United States, 72 Fed.Cl. 126 , 131 n. 4 (2006). *135 Thus, addressing questions of standing “presupposes discussion of the merits, which would lead the court in a round-robin through the arguments on the merits in order to resolve a jurisdictional issue. Such is not a desirable or appropriate procedure.” Textron, Inc., 74 Fed.Cl. at 284-85 .
A prejudice determination for the purpose of evaluating standing is a “limited review” that seeks “minimum requisite evidence necessary for plaintiff to demonstrate prejudice and therefore standing.” Night Vision Corp., 68 Fed.Cl. at 392 & n. 23; see also L-3 Global Commc’ns Solutions, Inc., 82 Fed.Cl. at 608 n. 4 (explaining that the “first showing of prejudice to the protestor, in order to prove standing, must occur before reaching the merits of the bid protest review”). A merits-based determination of actual prejudice based upon the “substantial chance” test should be separate from the standing inquiry. Textron, Inc., 74 Fed.Cl. at 285 . The court therefore utilizes the approach set forth in Textron, Inc. for assessing standing, which avoids a merits-based determination of actual prejudice and requires
only that a protestor be (1) either a bidder or proposer that has been prevented from bidding or proposing due to some infraction other than the terms of the solicitation itself; or (2) either a bidder or proposer who would be in contention absent the unreasonable procurement decision or violation of applicable procurement regulations.
Id. The court addresses defendant’s argument that BBSSI lacks standing in Parts IV.A.2.a-c, infra.
C. Motion to Dismiss
1. RCFC 12(b)(1)
The court’s “general power to adjudicate in specific areas of substantive law ... is properly raised by a [Rule] 12(b)(1) motion.” Palmer v. United States, 168 F.3d 1310, 1313 (Fed.Cir.1999). When considering an RCFC 12(b)(1) motion, the burden of establishing the court’s subject matter jurisdiction resides with the party seeking to invoke it. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 , 56 S.Ct. 780 , 80 L.Ed. 1135 (1936). The plaintiff “bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence.” Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). The court must accept as true the allegations in the plaintiffs complaint and must construe such facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-19 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982); Reynolds, 846 F.2d at 747 . If the defendant or the court questions jurisdiction, the plaintiff cannot rely solely on allegations in the complaint but must bring forth relevant, adequate proof to establish jurisdiction. See McNutt, 298 U.S. at 189 , 56 S.Ct. 780 . In deliberating on a motion to dismiss for lack of subject matter jurisdiction, the court may examine relevant evidence in order to decide any factual disputes. See Moyer v. United States, 190 F.3d 1314, 1318 (Fed.Cir.1999); Reynolds, 846 F.2d at 747 . If the court finds that it lacks subject matter jurisdiction, then it must dismiss the claim. Matthews v. United States, 72 Fed.Cl. 274, 278 (2006); see also RCFC 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”).
2. RCFC 12(b)(6)
An RCFC 12(b)(6) motion tests the sufficiency of a complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007); see also RhinoCorps Ltd., 87 Fed.Cl. at 492 (“A motion made under Rule 12(b)(6) challenges the legal theory of the complaint, not the sufficiency of any evidence that might be adduced.”). The purpose of RCFC 12(b)(6) “is to allow the court to eliminate actions that are fatally flawed in their legal premises and destined to fail, and thus to spare litigants the burdens of unnecessary pretrial and trial activity.” Advanced Cardiovascular Sys., Inc. v. SciMed Life Sys., Inc., 988 F.2d 1157, 1160 (Fed.Cir.1993) (citing Neitzke v. Williams, 490 U.S. 319, 326-27 , 109 S.Ct. 1827 , 104 L.Ed.2d 338 (1989)). When consid *136

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6661618. Public record. Not legal advice.