# Insight Public Sector, Inc. v. United States

> United States Court of Federal Claims · August 1, 2022

URL: https://www.frixlaw.com/law-library/cases/7797026

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** August 1, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Eleni M. Roumel
- **Cited by:** 0 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/7797026

## How later opinions describe it (automated extraction)

- holding BPAs create contractual obligations regarding accepted orders
- holding agency may use its judgment to weigh various factors in awarding an adjectival rating
- finding agency did not act “contrary to the [s]olicitation” in accepting proposal that “did not conform to the price realism range” given the solicitation’s permissive language provided agency discretion whether to accept or reject nonconforming bid

## Opinion text

In the United States Court of Federal Claims

INSIGHT PUBLIC SECTOR, INC.,

Plaintiff,

v. No. 21-cv-1755

THE UNITED STATES, Filed Under Seal: July 25, 2022

Defendant, Publication: August 1, 2022 1

and

DELL MARKETING L.P.,

Intervenor-Defendant.

Kyle R. Jefcoat, Latham & Watkins LLP, Washington, District of Columbia for Plaintiff. With
him on the briefs are David R. Hazelton and Julia A.C. Lippman, Latham & Watkins LLP,
Washington, District of Columbia.

William P. Rayel, United States Department of Justice, Civil Division, Washington, District of
Columbia for Defendant. With him on the briefs are Brian M. Boynton, Principal Deputy Assistant
Attorney General, Civil Division; Patricia M. McCarthy, Director, Commercial Litigation; Martin
F. Hockey, Jr., Acting Director, Commercial Litigation; Douglas K. Mickle, Assistant Director,
Commercial Litigation; Tracey Ferguson, Naval Information Warfare Center Pacific; and Stephen
T. O’Neal, General Services Administration.

Craig A. Holman, Arnold & Porter Kaye Scholer LLP, Washington, District of Columbia for
Intervenor-Defendant. With him on the briefs are Amanda J. Sherwood and Aime JH Joo, Arnold
& Porter Kaye Scholer LLP, Washington, District of Columbia.

1
This Memorandum and Order was filed under seal in accordance with the Protective Order
entered in this case (ECF No. 10) and was publicly reissued after incorporating all redactions
proposed by the parties. (ECF No. 117.) The sealed and public versions of this Memorandum and
Order are otherwise identical, except for the publication date and this footnote.
MEMORANDUM AND ORDER

Modern enterprises annually invest significant funds on information technology. The

United States Government is no exception. Over the next 5 years, the U.S. Department of the

Navy (Navy) plans to spend more than $2.5 billion on the procurement of Microsoft products and

services alone. The Navy will obtain such products and services from a Microsoft reseller it

selected through a competitive bidding process. Initially, the Navy awarded this lucrative contract

to Insight Public Sector, Inc. (Insight), which offered a cheaper price than its competitor, Dell

Marketing L.P. (Dell Marketing). Shortly after making the award, however, the Navy learned that

Insight was only able to offer its lower price because it left several required items unpriced in its

proposal, while Dell Marketing had priced those same items. The Navy vacated its initial award

and equalized the competition by requiring Dell Marketing and Insight to submit revised proposals

with all required items priced. After evaluating the revised proposals, the Navy selected Dell

Marketing for the award based on Dell Marketing’s significantly lower price. Insight now protests

the Navy’s award of the contract to Dell Marketing.

In its post-award bid protest, Insight alleges that several aspects of the procurement

rendered the Navy’s award to Dell Marketing arbitrary, capricious, and contrary to law, and

accordingly urges this Court to vacate the award. Insight contends in its Complaint that (1) the

Navy failed to review or evaluate whether Dell Marketing had the requisite products on its federal

supply schedule; (2) Dell Marketing did not propose a valid Contractor Teaming Arrangement; (3)

the Navy failed to investigate an alleged violation of the Procurement Integrity Act; (4) the Navy

improperly evaluated past performance; (5) the Navy applied the wrong standard for its best value

decision; and (6) the Navy unlawfully favored Dell Marketing. See Plaintiff’s Complaint (ECF

No. 1) (Compl.) ¶¶ 117-18, 130-31, 138, 150. Following an initial round of motions for judgment

2
on the administrative record based on five of those allegations, 2 the Court remanded this action to

the Navy to conduct a Procurement Integrity Act (PIA) violation investigation and reserved ruling

on the remaining issues. See December 9, 2021 Memorandum and Order on Motions for Judgment

on the Administrative Record (ECF No. 56) (Remand Order). 3

In a supplemental round of motions for judgment on the administrative record, the parties

revived some arguments and raised new arguments in response to the Navy’s PIA violation

investigation. See Plaintiff’s First Supplemental Motion for Judgment on the Administrative

Record (ECF No. 77) (Pl.’s SMJAR); Defendant’s Supplemental Cross-Motion for Judgment on

the Administrative Record (ECF No. 78) (Def.’s Suppl. Cross-MJAR); Intervenor-Defendant’s

Supplemental Cross-Motion for Judgment on the Administrative Record (ECF No. 79) (Int.-Def.’s

Suppl. Cross-MJAR). After reviewing the record and supplemental motions, this Court held that

the Navy failed to fully investigate the alleged PIA allegation as directed by the Court; the Court

remanded this action again, directing the Navy to complete its investigation and fully comply with

this Court’s December 9, 2021 Memorandum and Order. See April 25, 2022 Order on

Supplemental Motions for Judgment on the Administrative Record (ECF No. 96) (Second Remand

Order). After the Navy issued its Supplemental PIA Report, concluding no violation had occurred,

Insight filed a second supplemental motion for judgment on the administrative record. See

Addendum to Contracting Officer’s Assessment of Potential Procurement Integrity Act Violation,

2
While Insight’s Complaint alleged that the Navy applied the wrong standard for its best value
determination, it did not pursue this claim in its Motion for Judgment on the Administrative Record
(MJAR). See generally Plaintiff’s Memorandum in Support of its MJAR (ECF No. 34).
3
Prior to filing its MJAR, Plaintiff also filed a Motion to Complete the Administrative Record
(ECF No. 26), which this Court denied. See Order Denying Motion to Complete the
Administrative Record (ECF No. 32); Transcript of Oral Argument dated September 23, 2021
(ECF No. 55); see also December 9, 2021 Memorandum and Order on Motion to Complete the
Administrative Record (ECF No. 57); infra Background Section V.
3
and Impact under 48 CFR § 3.104-7, dated 21 January 2022 (ECF No. 98-1) (Supplemental PIA

Report); Plaintiff’s Second Supplemental Motion for Judgment on the Administrative Record

(ECF No. 103) (P1.’s Second SMJAR). Defendants responded in opposition and renewed their

cross-motions for judgment on the administrative record. See Defendant’s Response to Plaintiff’s

Second Supplemental Motion for Judgment on the Administrative Record (ECF No. 105) (Def.’s

Resp. to P1.’s Second SMJAR); Intervenor-Defendant’s Response to Plaintiff’s Second

Supplemental Motion for Judgment on the Administrative Record (ECF No. 104) (Int.-Def.’s

Resp. to P1.’s Second SMJAR).

Having considered the parties arguments advanced in over 360 pages of briefing and during

more than four hours of oral argument, this Court rules in favor of the Defendant and Intervenor-

Defendant. Accordingly, as reflected on the record and in this Court’s May 10, 2022 Order, 4 and

as more fully explained below, the remaining portions of Plaintiff’s MJAR, 5 Plaintiff’s SMJAR,

and Plaintiff’s Second SMJAR are DENIED. The remaining portions of Defendant’s Cross-

MJAR, Defendant’s Supplemental Cross-MJAR, Intervenor-Defendant’s Cross-MJAR, and

Intervenor-Defendant’s Supplemental Cross-MJAR are GRANTED. See May 10, 2022 Order

Denying Plaintiff’s Motion for Judgment on the Administrative Record (ECF No. 106) (May 10

4
The Navy explained that it required an expedited ruling and clarity regarding injunctive relief, as
it required Microsoft software licenses in place by June 1, 2022. See Defendant’s Response to
Plaintiff’s Motion for Opportunity to Brief (ECF No. 101) at 6. To accommodate that need, the
Court proposed providing the parties with an oral ruling on the record as soon as possible after all
briefing concluded. See Transcript of Oral Argument dated April 8, 2022 (ECF No. 95) (Apr. 8
Tr.) at 82:8-20. Additionally, the Court proposed entering judgment upon publishing a more
detailed, written Memorandum and Order on all pending issues. See id. at 82:8-83:2. All parties
consented to this procedure. Id. at 83:4-17.
5
On December 9, 2021, the Court denied as untimely Insight’s claim that the Navy violated the
PIA upon notifying Dell Marketing of an award suspension due to Insight’s failure to price four
promotional Contract Line Item Numbers (CLINs). Remand Order at 25-26.
4
Order) at 1; Transcript of Oral Argument dated May 10, 2022 (ECF No. 108) (May 10 Tr.) at 5:16-

6:2. Further, as noted on the record and in this Court’s May 10, 2022 Order, Defendant United

States, which includes the Navy, is authorized to immediately proceed with its award to Dell

Marketing. See May 10 Order at 2; May 10 Tr. at 6:2-4.

BACKGROUND 6

I. Original RFQ & Pre-Award Amendments

Navy Solicitation No. N66001-21-Q-0082 (RFQ or Solicitation) stands at the center of this

protest. Compl. ¶ 1. It provides for the award of a Blanket Purchase Agreement (BPA) for the

exclusive provision of Microsoft software licenses, software maintenance, and user-based

subscriptions for a one-year base ordering period with four one-year options. See Tab 3.1

(Excerpts from Original Request for Quotations (RFQ), dated March 17, 2021) at AR 8-9. The

BPA is awarded against an underlying General Services Administration (GSA) Federal Supply

Schedule (FSS) contract. Id. While the Navy will be the first Department of Defense (DoD) entity

to use the BPA, it is expected that other DoD entities will join the BPA as their respective

enterprise agreements for Microsoft products expire. Id. at AR 10 (“The Government estimates,

but does not guarantee, that the volume of purchases through this BPA will be $3.4 billion.”),

AR 31.

To be eligible for the BPA award, offerors, which the RFQ calls “Resellers,” were required

to “meet all [of] the Reseller criteria.” Id. at AR 31. Among other requirements, the RFQ mandates

that offerors (i) have a GSA FSS contract that will cover the BPA’s duration, (ii) “be a DoD ESI

6
This section reflects the Court’s findings of fact, derived from the Administrative Record (AR).
The AR is contained in ECF Nos. 25-2 – 25-5, 47-2 – 47-3, 68, 82-1, and 98-1 – 98-2. Documents
within the Administrative Record are divided into “Tabs.” An index of Tabs comprising the
Administrative Record may be found at ECF Nos. 25-1 and 68.

5
BPA Holder for Microsoft Products and Azure Services,” (iii) “have a Facility Clearance at the

Secret level,” (iv) have the Microsoft products on the Reseller’s GSA FSS contract, 7 and (v)

include pricing and/or discount percentages for each required product. Id. at AR 32. Notably, the

RFQ originally required the reseller, and not a teaming partner, to have an active GSA FSS contract

for the duration of the BPA. Id.

The day after the deadline for submitting questions to the Navy regarding the RFQ, Dell

Technologies Inc. — Dell Marketing’s parent company — submitted correspondence to the Navy

explaining that it would prefer to submit a quote through Dell Federal Systems L.P. (Dell Federal),

but that Dell Federal was not qualified for the competition. See Tab 3.6 (E-mail Chain regarding

Dell Teaming Request, dated March 26-31, 2021) at AR 132-33. Dell explained that it could not

submit a bid under the RFQ’s terms at that time because Dell Federal’s GSA FSS contract would

expire on September 19, 2024 — before the end of the BPA to be awarded in this procurement —

and “the Navy has not included GSA Federal Supply Schedule Succession language.” Id. at AR

132. Dell offered two possible solutions that would allow its entities to compete “in an already

limited field of Microsoft Licensing Solution Providers (LSP) capable of managing an agreement

of this size.” Id. First, it suggested adding succession language in the RFQ that would allow, in

the event a current GSA FSS contract is replaced with a new GSA FSS contract, the BPA to

transfer from the expired GSA FSS contract “to the new [GSA FSS] contract to the extent the new

schedule contract includes the same or substantially the same scope and items as the canceled or

7
The Microsoft products and services listed under the BPA are distributed across several hundred
CLINs. See Tab 3.1 at AR 37-42. While the value of each CLIN varies, approximately 19 high-
value CLINs each contribute $20 million or more to the BPA’s total value. See Tab 7.1 (Additional
E-mails between the Navy and Dell regarding Dell’s Quote, dated May 4-6, 2021) at AR 3352-54
(CLINs x100, x101, x102, x104, x105, x106, x120, x407, x 453, x497, x511, x729, x744, x746,
x761, x765, x768, x781, and x784).
6
expired GSA contract.” Id. Alternatively, Dell suggested that the Navy permit use of Contractor

Teaming Arrangement (CTA) to pair Dell Federal’s security clearance with Dell Marketing’s GSA

FSS contract, which does not expire until November 2035, and would extend throughout the

duration of the BPA. Id. at 133.

In response, the Navy indicated that it would amend the RFQ to permit CTAs and that it

would extend the deadline for submission of quotes. Id. at AR 137. This amendment was handled

outside of the official question-and-answer process, and the questions and answers that the Navy

published after the question-and-answer period ended did not reference either the communications

with Dell or teaming arrangements. See Tab 42 (Insight Comments on Agency Report, dated July

16, 2021) at AR 4806-07.

The amended RFQ included the following eligibility requirements:

a. Reseller must have a current General Services Administration (GSA) Federal
Supply Schedule (FSS) contract that covers the duration of the resultant Agreement.
...

c. Reseller/Teaming Partner must be a DoD ESI BPA Holder for Microsoft
Products and Azure Services.
...

e. Reseller/Teaming Partner must have a Facility Clearance at the Secret level. If
the Reseller/ Teaming Partner does not have a Facility Clearance at the Secret level,
they must obtain it within 120 days of contract award.

f. All Microsoft products listed under Attachment #2 – BPA Product and Price List
must be on the Reseller’s FSS contract. Resellers will not be precluded from award
in the event a product is not available on the respective GSA Schedule contract
provided an appropriate explanation is given in the ‘Vendors Comments’ column
of Attachment #2.
...

h. Reseller/Teaming Partner must submit 2 contract references of similar size and
scope that were performed within the past 5 years (see Section 5 below for
definition of similar size and scope). Please provide the POC/references

7
(Contracting Officer or Contracting Officer’s Representative) for each contract
reference. Our office will contact each reference and submit a questionnaire
regarding the Reseller/Teaming Partner’s performance. The questionnaire
responses will be evaluated in addition to the Vendor’s CPARS ratings.

Tab 3.4 (Amendment 3 to RFQ, dated April 1, 2021) at AR 102 (emphases added). While the

amendment permitted using a teaming partner to satisfy many of the eligibility criteria, the

Microsoft product list was required to “be on the Reseller’s FSS contract.” Id. (emphasis added).

Thus, Dell Marketing, as the offeror and proposed reseller under the BPA, was required to have

the requisite Microsoft products on its own GSA FSS contract – not Dell Federal’s GSA FSS

contract.

Specifically, the submission requirements stated that a quote shall include “[e]vidence of

product inclusion and pricing on GSA schedule (only provide Microsoft product listing and

pricing).” Id. at AR 104. Another section of the instructions stated that “Resellers shall submit

evidence of product inclusion on GSA schedule, i.e., a copy of your GSA approved Price List.”

Id. at AR 101. However, the RFQ did not require submission of the GSA FSS contract itself. See

id. at AR 101-04.

The RFQ also explained that offerors would “be evaluated based on providing the best

value to the Government.” Id. at AR 102. Those offerors who satisfied the eligibility requirements

would be evaluated based on price and past performance. Id. Although price would be considered

more important than past performance, past performance would increase in importance as the price

variance between offerors narrowed. Id. The RFQ explained that “[p]rice will be evaluated based

upon the vendor pricing provided on BPA Attachment 2- BPA Product and Price List at the

estimated quantities listed.” Id.

The past performance rating considered the recency and relevance of previous projects. Id.

at AR 103. The RFQ explained that “[r]ecency will be based on performance within the last 5

8
years,” and that “[r]elevance will be evaluated on the size and scope of the referenced award(s)

being evaluated in comparison to the size and scope of this solicitation’s requirement.” Id. In

describing “size” and “scope,” the RFQ indicated that “similar size would include Agreements

valued at approximately $50M or greater per year, and similar scope would include any award that

is agency/component-wide, multi-agency, or department–wide.” Id. The Navy would then

consider the previous project as part of the overall performance Confidence assessment rating if

the project was “both recent and at least somewhat relevant.” Id. The RFQ established the

following ratings for Relevance and Confidence:

Id. Under this rubric, the RFQ explained “Confidence means the Government’s expectation that

the vendor will successfully perform the required effort based on the vendor’s recent/relevant

performance record.” Id. Higher Relevance ratings “will . . . have more influence on the past

performance confidence assessment than past performance of a lesser relevance.” Id. The

Solicitation did not include specific definitions for Confidence or Relevance ratings. See id.

II. Initial Award to Insight

Two vendors, Insight and Dell Marketing, submitted initial bids on April 6, 2021. See Tab

4 (Dell Initial Quote, dated April 6, 2021); Tab 5 (Insight Initial Quote, dated April 6, 2021).

While Insight was the lone contractor on its proposal, Dell Marketing proposed a CTA between

Dell Marketing and Dell Federal. See Tab 4 at AR 140, 173. Dell Marketing proposed acting as

the team lead under its GSA FSS contract number GS-35F-059DA and using Dell Federal’s GSA

FSS contract GS-35F-0884P “to fulfil [sic] any security requirements.” Id. at AR 140. This was

9
necessary under the CTA because, unlike Dell Federal, Dell Marketing does not have the requisite

security clearances for this procurement. See Transcript of Oral Argument dated November 17,

2021 (ECF No. 51) (Nov. 17 Tr.) at 96:18-97:6; see also Tab 3.6 at AR 132-33.

Both Insight and Dell Marketing submitted the required Attachment #2 – BPA Product and

Price List, which included their proposed pricing for products on the BPA. Tab 4 at AR 173-80;

Tab 5 at AR 917-27. Insight included “a Microsoft only GSA [multiple award schedule (MAS)]

pricelist” with its quotation. Tab 5 at AR 917, 929-3277. Dell Marketing similarly provided its

Microsoft price list in an Excel file identified as a “copy of the Microsoft Products on vendor’s

GSA MAS Contract and prices.” Tab 4 at AR 173, 182-785. Neither offeror submitted their full

GSA FSS contract, nor as noted, did the RFQ require offerors to do so. 8 See generally Tab 3.4 at

AR 101-04; Tabs 4-5. Compare Transcript of Oral Argument, dated September 23, 2021 (ECF

No. 36) (Sept. 23 Tr.) at 27:17-22 (asserting on behalf of Defendant that “unless Insight only sells

Microsoft products . . . it didn’t provide its entire GSA Schedule contract”), and id. at 38:6-8

(asserting on behalf of Intervenor-Defendant that Insight “didn’t provide [its] GSA Schedule

contract.”), with id. at 47:7-49:5 (Plaintiff failing to rebut Defendants’ contentions that Insight also

did not submit its GSA FSS contract to the Navy). Insight does not contend, and the

Administrative Record does not support, that it ever made a pre-award objection to the Navy’s

process of using offerors’ self-provided Microsoft product and price list as opposed to requiring

submission of offerors’ full GSA FSS contracts.

8
The Navy had good reason for not requesting offerors’ full GSA FSS contracts: the contracts are
lengthy and contain lists of products irrelevant to this procurement. For example, the publicly
available version of Dell’s GSA price list contains several hundred thousand products. See
https://www.gsaadvantage.gov/ref_text/GS35F059DA/GS35F059DA_online.htm (last visited
June 8, 2022) at 3.
10
After reviewing the initial submissions, the Navy communicated with Insight and Dell to

obtain additional information and solicit proposal revisions. See Tab 6.1 (Additional E-mails

between the Navy and Dell regarding Dell’s Quote, dated April 7-8, 2021); Tab 6.2 (E-mails

between the Navy and Insight regarding Insight’s Quote, dated April 7, 2021). The Navy asked

both parties to make certain representations regarding FAR 52.204-24 (Representation Regarding

Certain Telecommunications and Video Surveillance Services or Equipment) and DFARS

252.239-7009 (Representation of Use of Cloud Computing), both of which were required by the

RFQ. See Tabs 6.1 at AR 3279; 6.2 at AR 3328; see also Tab 3.1 at AR 29-30 (incorporating FAR

52.204-24 and DFARS 252.239-7009 into the BPA by reference). The Navy further asked Dell

Marketing to provide details of its proposed teaming arrangement with Dell Federal. See Tab 6.1

at AR 3279-80. The Navy gave both parties until April 7, 2021 to provide the supplemental

information. Id. at AR 3289-306; Tab 6.2 at AR 3328.

Dell Marketing and Insight submitted the requested representations on April 7, 2021. See

Tabs 6.1 at AR 3285-306; 6.2 at AR 3333-39. The next day, the Navy called Dell to clarify Dell

Marketing’s representation regarding DFARS 252.239-7009. See Tab 44 (Navy Response to

Insight Supplemental Protest and Comments, dated July 20, 2021) at AR 4933. Dell indicated in

its April 7 representations that it “[did] not anticipate that cloud computing services will be used

in the performance of any contract or subcontract resulting from this solicitation.” Tab 6.1 at AR

3306. However, cloud computing services were among the products to be sold under the BPA.

See, e.g., Tab 3.1 at AR 31. The contracting officer who reached out to Dell concerning the

applicability of this DFARS clause had similarly clarified the issue with Insight and had recalled

doing so with many vendors on other, past solicitations. Tab 44 at AR 4933. On the same day on

which it spoke with the contracting officer, Dell Marketing updated its DFARS 252.239-7009

11
representations to reflect that cloud computing services were expected. Id.; Tab 6.1 at AR

3307, 3326.

In its April 7, 2021 submission, Dell Marketing also produced the Master GSA CTA

between Dell Marketing and Dell Federal. Tab 6.1 at AR 3290. It explained that “[a]ll pricing

submitted on RFQ N66001-21-Q-0082 was based upon Dell Marketing L.P.’s GSA schedule.” Id.

at AR 3292. It further explained that while “[a]ll software CLINs will be sold off of [Dell

Marketing’s] GSA schedule GS-35F-059DA,” Dell Federal would be “responsible for fulfilling

any secure order requirements.” Id. at AR 3293; see also infra p. 10.

After receiving these submissions, the Navy began an extensive process of evaluating the

offerors’ eligibility based on whether the products listed in Attachment #2 – BPA Product and

Price List were on the offerors’ GSA FSS contracts. See Tab 8.2 (Dell Price Verification

Evaluation); Tab 8.3 (Insight Price Verification Evaluation); Tab 40 (Navy Response to GAO

Request for Information, dated July 13, 2021) at AR 4739. The Navy relied on spreadsheets

generated by the parties to evaluate whether the offerors had the requisite products on their GSA

FSS contracts. See Tab 5 at AR 921; Tab 8.3 at AR 3395-402; Tab 40 (Navy Response to GAO

Request for Information, dated July 13, 2021) at AR 4740-41. For each offeror, the Navy created

a color-coded chart identifying whether the price listed on the offeror’s BPA Product and Price

List for a given product was above, below, or matched the price on the offeror’s evidence of

product inclusion on its GSA Schedule, or whether the offeror did not submit a GSA Schedule

price for that product. See Tab 8.2 (Dell Price Verification Evaluation); Tab 8.3 (Insight Price

Verification Evaluation); Tab 40 (Navy Response to GAO Request for Information, dated July 13,

2021) at AR 4739. Similarly, as noted, it is undisputed that neither party objected to the Navy’s

12
reliance on offerors’ self-reported pricing and product information as opposed to relying on, or

requiring production of, offerors’ respective GSA FSS contracts.

While most of the Contract Line Item Numbers (CLINs) listed on Insight’s and Dell

Marketing’s BPA Product and Price Lists were also listed in the offerors’ spreadsheets, submitted

as evidence of product inclusion and pricing on their GSA FSS contracts, the Navy identified

several CLINs that did not match the offerors’ GSA FSS contracts. See Tab 7.1 at AR 3340-47;

Tab 7.2 (Additional Emails between the Navy and Insight regarding Insight’s Quote, dated May

4-6, 2021) at AR 3357-66. The Navy asked Dell and Insight to address the mismatched CLINs,

reduce pricing for certain CLINs, confirm that certain products were discontinued, state whether

GSA pricing was available for certain CLINs, and submit their Best and Final Offers by May 6,

2021. See Tab 7.1 at AR 3340-47; Tab 7.2 at AR 3357-66.

Both offerors timely submitted their Best and Final Offers, which included the Navy’s

requested changes and explanations for each of the CLINs of concern. See Tab 7.1 at AR 3348-

56; Tab 7.2 at AR 3367-78. The Navy determined that both Dell Marketing and Insight met the

RFQ’s eligibility criteria. See Tab 9 (Initial Business Clearance Memorandum, signed May 15-

16, 2021) at AR 3498. Both offerors received a “Relevant” Relevance rating and a “Satisfactory

Confidence” Confidence rating. Id. at AR 3498, 3511-13. Insight’s total evaluated price was

$2,555,033,130, while Dell Marketing’s total evaluated price was $2,582,354,460. Id. at AR 3511.

Given the offerors’ equivalent past performance ratings and that Insight’s “overall price was

$27,321,330 less than Dell Federal System’s [sic] submission,” the Navy selected Insight for

award of the BPA. Id. at AR 3498.

On May 21, 2021, the Navy notified Insight that it was the recipient of a BPA under

Solicitation No. N66001-21-Q-0082. Tab 10.1 (Notice of BPA Award to Insight, dated May 21,

13
2021). A public Department of Defense website announced the award that same day, publishing

an approximation of Insight’s total evaluated price (approximately $2.56 billion). See Tab 69

(DoD Website Notice of Contract Awards, May 21, 2021) at AR 6465. Three days later, on May

24, 2021, the Navy published Insight’s CLIN prices on an internal SharePoint website for Navy

customers to use for placing orders against Insight’s BPA. See Tab 81 (PIA No Impact

Determination, dated January 21, 2022) at AR 7399. While 3,500-4,300 Navy personnel and

contractors had access to the SharePoint site from May 24 through May 28, 2021, site access was

restricted to individuals with a DoD Common Access Card (CAC). See Tab 73 (Navy Emails

Regarding SharePoint System, dated August 18 - September 1, 2021) at AR 6498-612; Tab 81 at

AR 7399 n.1. It is undisputed that neither Dell Marketing, nor any other Dell entity, had access to

the SharePoint site. See Transcript of Oral Argument, dated April 8, 2022 (ECF No. 95) (Apr. 8

Tr.) at 16:6-10 (Insight’s counsel acknowledgement that list of individuals with SharePoint site

access did not include any Dell personnel).

On May 26, 2021, two days after posting Insight’s pricing on the SharePoint site, the Navy

notified Dell Marketing of the award to Insight. See Tab 10.2 (Emails between Navy and Dell

regarding BPA Award to Insight, dated May 26-27, 2021). The notification to Dell Marketing

included only the following information regarding Insight’s quote:

Id. at AR 3522. The Administrative Record does not indicate that Dell Marketing (or any other

Dell entity) ever received or had access to Insight’s CLIN-level pricing. See id.

14
III. Suspension and Reevaluation of the Award to Insight

A. May 27, 2021 Email from Dell Marketing to the Navy

Internal Dell emails reflect that on May 26, 2021, the day the Navy informed Dell

Marketing of the award to Insight, Dell personnel began surmising that Insight submitted a lower

price because it had failed to price two items (i.e., CLINs) required by the RFQ. See Tab 77 (Email

from Dell to Navy forwarding Dell email chain regarding PIA Investigation, dated January 6,

2022) at AR 7358-59. Accordingly, on May 26, 2021, Dell requested a formal debrief with the

Navy. See Tab 10.2 at AR 3520. Although the Navy denied that request, it permitted Dell

Marketing to submit any “specific questions” it had about the award. Id. at AR 3519-20.

Dell responded by email on May 27, 2021, raising its concern that “the pricing evaluation

may not be comparing apples to apples, leading to a disadvantage for Dell and a possible

misrepresentation of total price to the Government over the term of the agreement.” Id. at AR

3519. Dell further explained its theory that Insight may have incorrectly priced four promotional

CLINs: 9

Throughout the bidding process, Microsoft made multiple revisions to the pricing
for the Project & Visio bundle promotional CLINs – x728, x729, x764, x765.
Microsoft originally offered only 3 years of pricing for these bundles but, at last
minute, extended an offer for years 4 & 5 at a lesser discount. The lesser discount
on the bundle is still less expensive than procuring the underlying products on a
stand-alone basis. . . .

We are concerned that competitors’ proposals may have included no pricing for
these bundled CLINS in years 4 and 5 due to the late timing of Microsoft’s change
to the offering. If that were the case, then the Dell Total Evaluated Price would be
unfairly evaluated at more than $ higher than a competitor’s offer that shows
no pricing for these CLINS in Years and 4 and 5.

9
Two of the four promotional CLINs identified by Dell Marketing, x729 and x765, were among
the approximately 19 high-value CLINs discussed infra in footnote 7.

15
Id. Dell asked the Navy to “validate that all bidders provided complete pricing for all CLIN[s] in

all years.” Id.

B. Corrective Action and Further RFQ Revisions

In response to Dell’s May 27, 2021 email, the Navy reviewed the bidders’ BPA Product

and Price lists. See Tab 12.1 (Final Business Clearance Memorandum, signed June 3-7, 2021) at

AR 4374. It confirmed that Dell Marketing had priced years 4 and 5 of the promotional CLINs

while Insight had not. Id. The Navy further noted that “[t]he value of that difference was ~ $ ,

which impacted the award.” Id.

Concerned that a protest by Dell Marketing would be successful, on May 27, 2021 — the

same day that Dell had raised its concerns to the Navy — the Navy issued a notice suspending the

award to Insight “in order to re-evaluate the pricing submitted in response to the subject RFQ.”

Tab 11.1 (Emails [R]egarding Suspension of Insight Award and Submission of Revised Price Lists,

dated May 27-28, 2021) at AR 3523, 3525. The Navy offered the following explanation:

A discrepancy was found in how the promotional CLINs/ SKUs x728, x729, x764
and x765 provided by Microsoft should be applied. One vendor submitted pricing
for years 4 and 5 of those CLINs/SKUs, while the other zeroed the pricing for those
CLINs/SKUs for years 4 and 5. The discrepancy is significant enough to impact the
award decision.

Id. At that time, the Navy did not disclose that Dell had brought this possible discrepancy,

including the four referenced promotional CLINs, to the Navy’s attention. See id. The Navy did,

however, provide Insight with the same information regarding the offerors’ total evaluated prices

that was previously provided to Dell Marketing. See id.

On May 28, 2021, Insight responded to the Navy’s notice by explaining that it did not

provide pricing for the Promo CLINs for BPA years 4 and 5 because “Microsoft did not provide a

16
bundled cost for these CLINs for option year 3 and option year 4.” 10 Tab 11.5 (Email from Navy

to Insight regarding Removal of Promotional SKUs, dated May 28, 2021) at AR 3555. Insight

also requested a conference call with the Navy to discuss, among other things, altering the

quantities of the four promotional CLINs “so the correct pricing can be provided for evaluation

purposes.” Id. at AR 3556. The Navy considered Insight’s request and “decided to remove the

promotional SKUs from the evaluation and put the quantities back in Project and Visio

respectively.” Id. at AR 3555. The Navy extended the original deadline for submitting revised

quotations from 5 p.m. Pacific Time on May 28, 2021, to 7 p.m. Pacific Time on that date. See id.

After the Navy issued its Notice of Suspension of the award and initiated corrective action

on the evening of May 27, 2021, Insight’s pricing data remained posted to the Navy’s internal

SharePoint site for less than a day. Tab 81 at AR 7399 n.1. Specifically, the Navy removed

Insight’s data from SharePoint on May 28, 2021. Id. Again, it is undisputed that neither Dell

Marketing nor any other Dell entity had access to the SharePoint site during the period of May 27

through May 28, 2021. See id.; Tab 73 at AR 6498-612; Apr. 8 Tr. at 16:6-10.

Meanwhile, Insight and Dell Marketing submitted revised pricing to the Navy on May 28,

2021, as requested. See Tab 11.7 (Email from Dell to Navy transmitting Revised Price Proposal

Version 2, dated May 28, 2021); Tab 11.9 (Email from Insight to Navy transmitting Revised Price

Proposal, dated May 28, 2021). Subsequently, the Navy requested both offerors provide additional

information and submit their Best and Final Offers by noon Pacific Time on May 30, 2021. Tab

11.11 (Email from Navy to Dell regarding Best and Final Offers, dated May 29, 2021) at AR 3598-

10
“[O]ption year 3 and option year 4” correspond to years 4 and 5, respectively, for a given CLIN.
See Tab 3.1 at AR 8-9 (indicating the BPA includes a one-year base ordering period with four one-
year options).
17
99; Tab 11.13 (E-mail from Navy to Insight regarding Best and Final Offers, dated May 29, 2021)

at AR 3629.

Both Insight and Dell Marketing timely submitted new Best and Final Offers. See Tab

11.16 (Email from Dell to Navy transmitting its Revised Price Proposal Version 3, dated May 29,

2021); Tab 11.19 (Email transmitting Insight’s Final Pricing, dated May 30, 2021); Tab 11.21

(Letter from Insight to Navy regarding Final Pricing, dated May 30, 2021). While evaluating the

final offers, the Navy determined that two prices listed on Dell Marketing’s BPA Product and

Pricing List did not match the prices in Dell Marketing’s Evidence of Product Inclusion on GSA

FSS contract. See Tab 11.26 (Email from Dell to Navy transmitting Final Price Revisions, Updated

Microsoft Price List on Dell Marketing’s Federal Supply Schedule Contract, and Representations,

dated May 30, 2021) at AR 3811-12. It also determined that Dell Marketing did not include seven

CLINs in its Evidence of Product Inclusion on GSA FSS contract. Id. The Navy requested Dell

Marketing clarify these nine issues by submitting “the most recent copy of Dell’s GSA pricing for

Microsoft products and services.” Id.

Dell Marketing responded the same day by submitting revised pricing that corrected the

two previously mismatched prices and by attaching its “current Microsoft Price List on Dell GSA

GS35F059DA.” Id.; see Tab 11.27 (Dell Final Price Revisions, submitted May 30, 2021) at AR

3820-23; Tab 11.29 (Dell Updated Microsoft Price List on Dell Marketing’s Federal Supply

Schedule Contract, submitted May 30, 2021). The Navy reviewed Dell Marketing’s updated

submissions and verified that (i) the nine CLINs previously at issue were included on Dell

Marketing’s GSA FSS contract, and (ii) the prices matched the GSA FSS contract pricing reported

in Dell Marketing’s final BPA pricing submission. See Tab 40 at AR 4740. To further check for

discrepancies, the Navy spot-checked random CLINs and did not find discrepancies between Dell

18
Marketing’s two GSA price lists. Id. After the promotional CLINs were removed and all requested

modifications were incorporated, Dell Marketing’s final total evaluated price was

$2,493,272,919.21, and Insight’s final total evaluated price was $2,580,216,750.72. See Tab 11.20

(Insight Final Pricing, submitted May 30, 2021) at AR 3750; Tab 11.27 (Dell Final Price

Revisions, submitted May 30, 2021 (attachment to Tab 11.26)) at AR 3823; Tab 12.1 at AR 4379.

Accordingly, Dell Marketing’s final total evaluated price was approximately $86.9 million less

than Insight’s bid.

C. Subsequent Award to Dell Marketing

The next day, on May 31, 2021, the Navy verbally approved granting the award to Dell

Marketing. See Tab 12.1 at AR 4360, 4380. The Navy formalized the award and communicated

its decision to Dell Marketing on the same day. See Tab 66 (E-mails between Navy and Dell

regarding BPA documentation, dated May 31, 2021) at AR 5868; Tab 67 (Dell BPA, signed May

31, 2021) at AR 5874. On June 1, 2021, the Navy notified Insight that it had awarded the BPA to

Dell Marketing. See Tab 1 (Notification to Insight Public Sector, Inc. of BPA award to Dell

Marketing, dated June 1, 2021). The Navy documented its decision in a Business Clearance

Memorandum that was approved several days later. See Tab 12.1 at AR 4358-80.

The Navy explained in its Business Clearance Memorandum that it had suspended the

initial award to Insight based on an ambiguity “with regard to how the vendors priced certain

promotional products offered by Microsoft” that “resulted in an unequal evaluation of prices.” Id.

at AR 4360. The Navy explained that it requested new quotes from Insight and Dell Marketing,

the latter of which “quoted the lowest total overall price by $86,943,832 less than Insight.” Id.

Although the Navy concluded that “Insight’s past performance was slightly better than Dell’s,” it

concluded that such past performance was not sufficiently superior to overcome an almost $87

19
million price difference. Id. At most, the Navy concluded, Insight’s past performance “would be

worth a slightly higher price (no more than $5 million over the course of 5 years).” Id. The Navy

also reasoned that Dell Marketing’s quote “provided the Government with a reasonable

expectation that they will successfully perform the required effort,” and that Dell Federal’s “past

performance was generally rated good, with positive comments.” Id. The Navy therefore

concluded that an award to Dell Marketing “is in the best interest of the Government.” Id.

IV. Insight’s GAO Protest

Subsequently, on June 7, 2021, Insight filed a bid protest before the Government

Accountability Office (GAO). See Tab 19 (Insight GAO Protest, dated June 7, 2021). The Navy

produced its Agency Report on July 6, 2021, revealing to Insight for the first time that Dell had

identified specific promotional CLINs in its May 27, 2021 email to the Navy. Tab 34 (Navy

Contracting Officer Statement of Facts and Memorandum of Law, dated July 6, 2021). Insight

responded to this new information by filing a supplemental protest at the GAO on July 9, 2021.

Tab 38 (Insight Supplemental Protest, dated July 9, 2021). In its supplemental protest, Insight

detailed its belief that Dell’s May 27, 2021 email evidenced a possible violation of the Procurement

Integrity Act that the Navy had failed to investigate. Id.

The Administrative Record does not contain independent documentation of a Navy

investigation into any alleged PIA violations at that time. In the Navy’s response to Insight’s

supplemental protest at the GAO, however, it argued insufficient evidence existed to require a PIA

investigation. See Tab 44 at AR 4928-30. The Navy explained to the GAO that although Dell’s

May 27, 2021 question to the Navy was “highly specific, it was also not an unreasonable

assumption.” Id. at AR 4927. In support of its decision to forgo a PIA investigation, the Navy

further elaborated that “Dell indicated Microsoft initially did not offer promotional pricing for

20
years 4 & 5 of the Promo CLINs, but at the last minute (but apparently before its initial quote on

6 April 2021) offered a lesser discount.” Id. The Navy also argued to the GAO that only a handful

of CLINs could have affected the price evaluation, despite that the BPA included over 500 CLINs:

A review of the vendors’ 6 May 2021 BPA Attachment 2 – BPA Product and Price
Lists shows that there are a limited number of “heavy hitters” that will affect the
price evaluation. There are 19 CLINS (which includes two of the [CLINs cited in
Dell’s May 7, 2021 email]), which are each priced out over $20M for the 5 year
period of performance. (See AR 7, Dell, Item 4 p. 308, and AR 7, Insight, Item 4,
p. 314.) Taken together, the evidence supports Dell may have just made a
reasonable assumption about the Promo CLINs, which turned out to be true.

Id. at AR 4928.

Before the GAO resolved the parties’ dispute, Insight informed the GAO that it would file

a bid protest action in this Court. Tab 49 (Insight Notice of Intent to File Protest in Court of

Federal Claims and Request to Provide Protected Information United States Government

Investigative Agencies, dated August 17, 2021). The GAO dismissed Insight’s protest when

Insight filed the present action. Tab 52 (GAO Dismissal of Insight’s Protest, dated August 26,

2021).

V. Procedural History

Insight filed the present bid protest in the United States Court of Federal Claims on August

25, 2021. See Compl. During the following nine months, Insight’s protest developed into a

leviathan. The contentious character of this suit first revealed itself in a dispute over the

Administrative Record’s scope and content. See December 9, 2021 Memorandum and Order on

Motion to Complete the Administrative Record (ECF No. 57) (AR Memorandum and Order); Sept.

23 Tr.; Order Denying Motion to Complete the Administrative Record (ECF No. 32). This case’s

full form came into view during its second developmental stage, when the parties filed their

respective cross-motions for judgment on the administrative record (collectively, the parties’

MJARs). See Plaintiff’s Motion for Judgment on the Administrative Record (ECF No. 33) (Pl.’s
21
MJAR); Defendant’s Cross-Motion for Judgment on the Administrative Record and Response to

Plaintiff’s MJAR (ECF No. 38) (Def.’s Cross-MJAR); Intervenor-Defendant’s Cross-Motion for

Judgment on the Administrative Record and Response to Plaintiff’s MJAR (ECF No. 39) (Int.-

Def.’s Cross-MJAR). After oral argument on the parties’ MJARs, the Court granted Plaintiff’s

MJAR in part, remanding this action to the Navy to thoroughly investigate one of Insight’s

Procurement Integrity Act (PIA) violation allegations. 11 See Remand Order at 3. Finally, in this

action’s third phase, the Court, identifying a material defect in the Navy’s PIA investigation,

remanded the case yet again for the Navy to fully comply with this Court’s December 9, 2021

Order mandating the Navy investigate one of Plaintiff’s PIA violation allegations. See Second

Remand Order. The Navy completed its final PIA violation investigation on April 29, 2022, and

the parties submitted further briefing regarding the Navy’s April 29, 2022 Supplemental PIA

Report. Defendant’s May 2, 2022 Notice of Completion (ECF No. 98); Supplemental PIA Report;

Pl.’s Second SMJAR; Int.-Def.’s Resp. to Pl.’s Second SMJAR; Def.’s Resp. to Pl.’s Second

SMJAR.

After review of the Navy’s April 29, 2022 Supplemental PIA Report and the parties’ briefs,

the Court provided an oral ruling on the record to accommodate the parties’ desire for an expedited

ruling and for clarity prior to fast-approaching procurement deadlines. See May 10 Order; May

10 Tr.; supra note 4. The Court also immediately lifted the injunction that was in place. See May

10 Order at 2; May 10 Tr. at 6:2-4. As consented by the parties, this Memorandum and Order

details the reasoning behind the Court’s decision. See supra note 4. Prior to addressing the parties’

11
As described infra, the Court granted Plaintiff’s MJAR in part concerning Plaintiff’s allegation
that a PIA violation occurred prior to Dell’s May 27, 2021 email, but denied as untimely Plaintiff’s
MJAR regarding its second allegation that the Navy’s May 27, 2021 email suspending the award
to Insight violated the PIA by disclosing Plaintiff’s total evaluated price and unpriced CLINs. See
Remand Order at 11-12, 25-26.
22
legal arguments, however, it is helpful to review certain background and findings of fact more

specifically regarding this case’s three developmental phases.

A. Completing/Supplementing the Administrative Record

This action’s first phase centered on the contents and scope of the Administrative Record.

Insight filed a motion seeking to add Dell Marketing’s General Services Administration Federal

Supply Schedule Contract No. GS-35F-059DA to the Administrative Record, either via

completion or supplementation. AR Memorandum and Order at 2. Despite that, as noted, Dell

Marketing did not submit — and was not required to submit — its GSA FSS contract to the Navy

as part of its quote, Insight nevertheless alleged that (i) the supply schedule contract was “a core

document that must be produced to have a complete Administrative Record,” and (ii) inclusion of

GSA FSS contract in the Administrative Record was necessary for this Court to determine whether

Dell Marketing was eligible for award. Id. at 2, 17.

This Court disagreed. Id. at 10. It explained that the Administrative Record was complete

without Dell Marketing’s Federal Supply Schedule contract as the contract was not before the

Navy when the Navy made its procurement decision. Id. at 10. Additionally, the Court determined

that it could “effectively review the Navy’s procurement process — including the Navy’s decision

to forgo additionally verifying the contents of Dell Marketing’s GSA Schedule through GSA —

without reviewing the full GSA Schedule” itself. Id. As this Court’s role is not to perform a de

novo review, the Court denied Insight’s motion. Id. at 10-11; see Sept. 23 Tr. at 5:13-21.

B. Remand and Initial PIA Investigation

Insight’s case neared full development during the second phase of this case when the

parties filed competing motions for judgment on the administrative record. See Remand Order;

Pl.’s MJAR; Def.’s Cross-MJAR; Intervenor-Def.’s Cross-MJAR. Insight argued in its motion for

23
judgment on the administrative record “that (1) the Navy failed to evaluate whether Dell

Marketing’s proposal complied with the requirements in the Request for Quotations; (2) Dell

Marketing was ineligible for the award because it did not have a valid Contractor Teaming

Arrangement, necessary for it to meet some eligibility requirements; (3) the Navy conducted a

flawed past performance evaluation; (4) the Navy displayed bias in favor of Dell Marketing

throughout the procurement; and (5) the Navy failed to investigate a potential violation of the

Procurement Integrity Act (PIA).” Remand Order at 2. The Court (i) granted Insight’s motion in

part, holding that the Navy failed to investigate the alleged PIA violation, (ii) enjoined the Navy

from proceeding with its award to Dell Marketing, and (iii) remanded to the Navy for investigation

of the alleged PIA violation. Id. at 3. Given the remand, the Court deferred ruling on Insight’s

other legal arguments until the Navy completed its PIA violation investigation. Id. at 27-28.

In its December 9, 2021 Remand Order, the Court addressed two arguments Insight had

advanced relating to its request for a PIA violation investigation. Id. at 11-12. First, Insight argued

that Dell’s May 27, 2021 email to the Navy allegedly demonstrated that Dell had inappropriately

received Insight’s CLIN-level pricing. Id. at 11. Second, Insight argued that the Navy had

allegedly violated the PIA by responding to Dell’s email on May 27, 2021, indicating that “[o]ne

vendor submitted pricing for years 4 and 5 of those CLINs/SKUs, while the other zeroed the

pricing for those CLINs/SKUs for years 4 and 5.” Id. at 12 (quoting Tab 11.1 at AR 3523-30).

The Court rejected the second argument as waived because (i) Insight had waited until its reply

brief to raise the argument, and (ii) Insight did not raise this potential PIA violation with the Navy

until more than 14 days after it discovered the possible violation. Remand Order at 26. The Court

was, however, persuaded by Insight’s arguments regarding the timeliness of Insight’s first alleged

PIA violation. See id. at 13-16. The Court concluded that Insight timely notified the Navy that

24
Dell’s May 27, 2021 email had indicated a PIA violation, that Insight’s allegation was sufficient

to trigger an investigation, and that the Navy unreasonably failed to conduct that investigation. Id.

at 17-25.

To remedy this failure, the Court temporarily enjoined the Navy “from implementing or

otherwise proceeding with the BPA award” and remanded the action “to the Navy to investigate

Plaintiff’s first allegation of a PIA violation; namely, that the information in Dell Marketing’s May

27, 2021 email to the Navy concerning certain allegedly mispriced CLINs in Insight’s bid

potentially indicates a PIA violation occurred.” Id. at 27-28. The Court directed a fulsome

investigation, as “Insight broadly alleged that at some time before Dell Marketing’s May 27, 2021

email to the Navy, Dell Marketing received ‘inside information about Insight’s proposal.’” Id. at

21 (quoting Tab 38 at AR 4730). Thus, the allegation to be investigated was not limited merely to

disclosures predating the Navy’s initial, May 21, 2021 award to Insight. See Remand Order at 21.

Instead, the Court sought full transparency on what had transpired so that it could assess the

reasonableness of any Navy conclusion stemming from its investigation. See Second Remand

Order at 4.

The Navy completed its initial PIA investigation and filed a copy of its investigative

conclusions with this Court. Remand Decision (ECF No. 64-1) (PIA Report); Tab 81. In his PIA

Report, Spencer Sessions, the Navy contracting officer for this procurement, “determined that no

one from Dell obtained or was provided Insight’s CLIN-level pricing information before Dell sent

its 27 May 2021 e-mail to the Navy, in violation of 41 U.S.C. § 2102.” Tab 81 at AR 7401.

Alexander Roberts, “a senior level contracting officer on the DoD ESI contracting team,” had

conducted “[t]he day-to-day handling of this acquisition.” Id. at AR 7394. “Mr. Roberts limited

distribution of vendors’ pricing information to just those on the evaluation team, and just when

25
needed.” Id. The PIA Report further reflects that Mr. Roberts implemented the following

safeguards to prevent disclosure of pricing data:

briefing the evaluation team about safeguarding procurement sensitive data;
requiring the technical evaluation team . . . to sign Non-Disclosure Agreements;
anonymizing Dell and Insight’s quotes . . . when the quotes were sent to the
technical evaluation team for evaluation; and using buffered prices (1.0763% above
the average of the two vendors price submissions) to communicate estimates to
outside stakeholders (i.e. customers) as necessary for budgeting.

Id.

Mr. Roberts also performed the PIA investigation. Id. at AR 7393. His investigation

included interviewing three Dell representatives, collecting and reviewing hundreds of pages of

documents and contemporaneous correspondence provided by Dell, obtaining declarations from

six people involved in drafting Dell’s May 27, 2021 email to the Navy, and obtaining declarations

from the nine Navy personnel who had received Insight’s pricing before the initial award to Insight.

Id. at AR 7394-99. The Dell employees interviewed by Mr. Roberts explained that Microsoft’s

late price changes to years 4 and 5 of certain promotional CLINs led them to believe that Insight’s

multi-million dollar advantage could have owed to Insight failing to price those promotional

CLINs. Id. at 7394-97; Tab 74 (Memoranda to File regarding Interviews with Dell Employees,

dated December 21, 2021, and January 5, 2022). Dell’s Vice President for Strategic Programs,

Ray McDuffie, stated during his interview that “no one from the Government provided Dell any

information related to Insight’s pricing.” Tab 81 at AR 7395. He also stated that, to his knowledge,

“no one from Dell received any information about Insight’s CLIN pricing on this opportunity.”

Id. Two other Dell representatives made similar statements that Dell did not receive Insight’s

CLIN pricing. Id. at AR 7395-97.

The declarations Mr. Roberts collected likewise reflected that Dell Marketing did not

receive Insight’s pricing information. Id. at AR 7397-99. Six Dell representatives declared under

26
penalty of perjury that they “did not see or receive any Insight price information related to the

RFQ.” Tab 80 (Dell Declarations (with cover e-mails), dated January 18-20, 2022) at AR 7382-

84, 7386, 7389, 7391. They further declared that no one had provided Dell with information

regarding Insight’s CLIN-level pricing prior to Dell submitting its May 27, 2021 question to the

Navy. Id. at AR 7382-84, 7386, 7389, 7391. Navy personnel similarly declared under penalty of

perjury that they had complied with their “obligations to protect and keep confidential contractor

bid or proposal information,” and that “[p]rior to the initial award of the BPA to Insight on May

21, 2021, [they] did not discuss with or disclose Insight’s pricing to anyone.” Tab 79 (Government

Declarations, dated January 10-11, 2022).

The documents collected from Dell reflected that Dell was concerned about the Microsoft

promotional CLINs well before the Navy’s initial award to Insight. See Tab 81 at AR 7398-99.

On March 26, 2021, prior to even submitting its bid, Dell emailed Microsoft to inquire about these

promotional CLINs, which appeared to be priced only for one year rather than for all five years.

Id. at AR 7398; Tab 75 (E-mail from Dell to Navy providing Documentation regarding PIA

Investigation, dated December 24, 2021) at AR 6627-28. Microsoft responded that the CLINs

were promotional and that it would provide additional information in a few days. See Tab 81 at

AR 7398; Tab 75 at AR 6627. Then, on March 29, 2021, Microsoft sent Dell updated pricing,

which included the promotional CLINs at issue across all five years. See Tab 81 at AR 7398; Tab

75 at AR 6625. When Microsoft provided final pricing on April 2, 2021, Dell requested Microsoft

clarify whether the promotional CLIN “bundles will be available to transact in year 4 & 5, or will

it revert back to the a-la-cart skus?” Tab 75 at AR 6622; see also Tab 81 at AR 7390. Microsoft

responded, explaining that although the CLIN “bundles can remain on the catalog for years 4 and

5, however the discount for Visio and Project will no longer be offered and they will go back to

27
full price.” Tab 75 at AR 6622; see also Tab 81 at AR 7390. Dell Marketing accordingly

incorporated into its bid this last-minute information from Microsoft about pricing for years 4 and

5 of the promotional CLINs. See Tab 4 at AR 178 (pricing promotional CLINs x728 and x729 for

option years 4 and 5); Tab 179 (pricing promotional CLINs x764 and x765 for option years 4

and 5).

Dell’s emails dated after the Navy’s May 21, 2021 award to Insight similarly demonstrate

that the promotional CLINs were front of mind for Dell Marketing. See Tab 77. Less than an hour

after the Navy had announced the award to Insight, one Dell representative sent an internal email

questioning Insight’s ability to offer a total price with such a discount against Dell Marketing’s

price. Id. at AR 7358. Dell immediately surmised that the large discrepancy in bid price was

attributable to the Microsoft CLINs that were unpriced earlier in the bidding process. Id.

Accordingly, on May 27, 2021, Dell sent the following correspondence to the Navy:

Throughout the bidding process, Microsoft made multiple revisions to the pricing
for the Project & Visio bundle promotional CLINs – x728, x729, x764, x765.
Microsoft originally offered only 3 years of pricing for these bundles but, at last
minute, extended an offer for years 4 & 5 at a lesser discount. . . . We are concerned
that competitors’ proposals may have included no pricing for these bundled CLINS
in years 4 and 5 due to the late timing of Microsoft’s change to the offering. If that
were the case, then the Dell Total Evaluated Price would be unfairly evaluated at
more than $ higher than a competitor’s offer that shows no pricing for these
CLINS in Years and 4 and 5.

Tab 76 (DoD SAFE Drop-Off Documentation from Dell regarding PIA Investigation transmitted

on December 30, 2021) at AR 7353.

While the Navy did not uncover any evidence that Dell had received Insight’s CLIN-level

pricing, the PIA Report notes that “Insight’s Attachment 2 BPA Product and Price List was posted

on an internal Common Access Card (CAC) enabled SharePoint website for Navy customers to

utilize in placing their orders against Insight’s BPA.” Tab 81 at AR 7399 n.1. The Administrative

Record reflects that Insight’s CLIN pricing information was posted on the access-restricted
28
SharePoint site from May 24 until May 28, 2021. Id. The site’s system administrator “advised

that [the Navy] cannot tell who accessed the site and when.” Id. It is undisputed that the total list

of people with access to the site exceeded 3,500. Id. Mr. Roberts determined it impractical to

interview that entire class of individuals to confirm with each person that they did not disclose

Insight’s pricing, and that, in any event, it was unnecessary due to evidence provided by Dell

indicating that Dell did not have access to Insight’s CLIN price information. Id.

After review of Mr. Roberts’ investigation, interview transcripts, and documentation, Mr.

Sessions determined in his PIA Report that “[t]he evidence indicates that no one from Dell received

Insight’s CLIN pricing prior to the initial 21 May 2021 award to Insight or Dell’s 27 May 2021

email regarding the award to Insight (from the Government or otherwise).” Tab 81 at AR 7399.

Mr. Sessions reached this conclusion in the PIA Report based on the declarations from the Dell

representatives involved in pricing its quote for this RFQ as well as the declarations from Navy

personnel. Id. Specifically, the PIA Report concluded that the explanation provided in the Navy’s

interviews with Dell representatives “as to why Dell questioned whether Insight had priced all five

years of the promotional CLINs is reasonable and supported by the documents Dell provided.” Id.

at AR 7400. In the PIA Report, Mr. Sessions also attributed importance to Dell’s reasoning that it

“doubted that Insight was lower priced given how aggressively Dell bid” especially “in the greater

context of Microsoft competitions.” Id. Furthermore, Mr. Sessions reasoned, Dell’s emails

“support Dell’s explanation that the pricing of the promotional SKUs was last minute, and that

Dell asked Microsoft multiple questions to better understand the promotional SKUs.” Id.

Accordingly, the PIA Report concluded that Dell’s internal emails “support Dell’s assertion that it

was only using information received from the award notice and that it did not receive Insight’s

CLIN pricing.” Id.

29
Given his conclusion that “no one from Dell obtained or was provided Insight’s CLIN-

level pricing information before Dell sent its 27 May 2021 e-mail to the Navy,” Mr. Sessions

concluded “that Insight’s alleged PIA violation did not impact the award of the BPA to Dell

Marketing.” Id. at AR 7401. Sharon Pritchard, the Chief of Contracting Office for Naval

Information Warfare Center Pacific, concurred with Mr. Sessions’ determination. Id. Both Mr.

Sessions and Ms. Pritchard signed the no-impact determination. Id.

C. Second Remand and Supplemental PIA Investigation

This action entered its third and final phase on February 25, 2022, when Insight filed a

supplemental motion for judgment on the administrative record. See Pl.’s SMJAR. Insight argued

that the Navy violated the PIA by posting Insight’s pricing data on the SharePoint site on May 24,

2021, and by keeping it visible on the site for approximately a day after reopening the bidding

process on the evening of May 27, 2021. See Pl.’s Memorandum in Support of its SMJAR (ECF

No. 77-1) (Pl.’s SMJAR Mem.) at 22-27. Insight further argued that (i) the Navy’s PIA

investigation did not comply with this Court’s December 9, 2021 Memorandum and Order and

that the investigation was inadequate because the Navy’s conclusion rested on Dell’s self-

interested statements, (ii) the investigation was not independent from the contracting officers

involved in the procurement, and (iii) the Navy did not investigate everyone who had access to the

SharePoint site during the relevant period. See id. at 270-35.

Agreeing in part with Insight, this Court granted Insight’s Supplemental Motion for

Judgment on the Administrative Record, holding that the Navy had “failed to fully comply with

this Court’s Remand Order.” Second Remand Order at 2. Rather than investigate the Navy’s

handling of Insight’s pricing data up until May 27, 2021, the Navy had sua sponte limited its

investigation by restricting the scope of its own declarations to the period preceding May 21, 2021,

30
not May 27, 2021, as the Court had ordered. Id. The Court accordingly remanded the action to

the Navy to fully comply with this Court’s December 9, 2021 Remand Order. Id. at 5.

The Navy completed the required investigation and filed an addendum to its Procurement

Integrity Act Report. See Supplemental PIA Report. As part of its supplemental PIA violation

investigation, the Navy obtained new declarations from the same nine Navy employees who had

previously provided declarations during the initial PIA investigation. Id. at 2. In addition to

averring that prior to the initial award to Insight “they did not discuss or disclose Insight’s pricing

to anyone except other members of the source selection team,” these new declarations also “stated

that during the period of 21-27 May 2021, they did not discuss or disclose to anyone outside the

source selection team any information regarding how Insight had bid particular CLINs.” Id. at 2;

see also Additional Documents Filed with Supplemental PIA Report (ECF No. 98-2). The only

disclosures made were to the SharePoint website and “to two Navy contracting personnel, Todd

Little and Sherelle Lockhart, in response to their request for award documentation to support a

Letter of Authorization to Leidos, Inc. (Leidos).” Supplemental PIA Report at 2; see also

Additional Documents Filed with Supplemental PIA Report (ECF No. 98-2). As part of its

supplemental PIA violation investigation, “[t]he Navy obtained declarations from Mr. Little and

Ms. Lockhart, in which they stated that they did not further discuss or disclose that information,

except amongst themselves.” Supplemental PIA Report at 2; see also Additional Documents Filed

with Supplemental PIA Report (ECF No. 98-2).

Mr. Sessions concluded in his Supplemental PIA Report “that the evidence from both the

PIA Investigation which was documented in [the] 21 January 2022 PIA report, and this addendum

thereto, taken together, indicate that no one from Dell received Insight's CLIN pricing prior to

Dell's 27 May 2021 email regarding the award to Insight (from the Government or otherwise).”

31
Supplemental PIA Report at 2. While Mr. Sessions acknowledged that he did not obtain statements

“from all the Navy personnel (including contractors) who may potentially have accessed Insight's

BPA price list from the SharePoint site between 24-27 May 2021,” he determined that “the

declarations from Dell personnel, interviews with Dell personnel, the contemporaneous

documentation provided by Dell, and the April 2022 Government declarations” provided sufficient

information to determine “that no one from Dell obtained or was provided Insight's CLIN-level

pricing before Dell sent its 27 May 2021 e-mail to the Navy.” Id. at 3. Sharon Pritchard concurred

in this conclusion, and both Mr. Sessions and Ms. Pritchard signed the supplemental no-impact

determination. Id.

Insight responded by filing a second supplemental motion for judgment on the

administrative record, in which it also renewed its original, deferred arguments for judgment on

the administrative record. See P1.’s Second SMJAR. With respect to the Navy’s supplemental

PIA investigation, Insight argued that the Navy failed to fully investigate the alleged PIA violation

by declining to interview all individuals who had access to the SharePoint site from May 24

through May 27, 2021. Id. at 3. Insight further faulted the Navy for not investigating Insight’s

allegations that the Navy also “violated the PIA by failing to remove Insight’s pricing from the

SharePoint website until May 28, 2021 – after the reopening of the procurement process on May

27, 2021.” Id. at 5-6.

On May 10, 2022, on consent of the parties, this Court ruled on the record, denying “the

unresolved portions of Plaintiff’s Motion for Judgment on the Administrative Record (MJAR)

(ECF No. 33), Plaintiff’s Supplemental MJAR (ECF No. 77), and Plaintiff’s Second Supplemental

MJAR (ECF No. 103),” and granting “the unresolved portions of Defendant’s Cross-Motion for

Judgment on the Administrative Record (Cross-MJAR) (ECF No. 38), Defendant’s Supplemental

32
Cross-MJAR (ECF No. 78), Intervenor-Defendant’s Cross-MJAR (ECF No. 39), and Intervenor-

Defendant’s Supplemental Cross-MJAR (ECF No. 79).” May 10 Order; May 10 Tr. at 5:14-6:2. 12

Specifically, and as explained in more detail below, the Court held that “(i) the Navy was

not required to examine Dell Marketing’s GSA Schedule; (ii) Dell Marketing has a valid

Contractor Team Agreement, or CTA, with Dell Federal; (iii) the Navy reasonably evaluated

Insight’s past performance; (iv) the Navy did not show improper favoritism toward Dell

Marketing; and (v) the Navy conducted a reasonable PIA investigation that rationally concluded

that the procurement was not affected by a PIA violation.” May 10 Tr. at 6:14-22. The Court,

therefore, lifted the injunction that was temporarily in place, and explained that “the U.S.

Department of the Navy may immediately proceed with its award to Dell Marketing L.P.” May

10 Order at 2; see also May 10 Tr. at 38:10-13.

APPLICABLE LEGAL STANDARD

This Court reviews post-award bid protests in two steps. First, the Court analyzes the

procurement under the Administrative Procedure Act (APA). 28 U.S.C. § 1491(b)(4); Harmonia

Holdings Grp., LLC v. United States, 20 F.4th 759, 766 (Fed. Cir. 2021). Second, the Court must

analyze whether the alleged errors prejudiced the protestor. See DynCorp Int’l, LLC v. United

States, 10 F.4th 1300, 1308 (Fed. Cir. 2021).

Turning to the first step, the APA requires a reviewing court to determine “whether the

agency’s actions were ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.’” Off. Design Grp. v. United States, 951 F.3d 1366, 1371 (Fed. Cir. 2020) (quoting

Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir. 2013)); 5

12
As noted, the parties agreed to receive an expedited oral ruling on the record for certainty relating
to upcoming procurement deadlines, with the understanding that the Court would issue a written
Memorandum and Order detailing its reasoning and enter judgment at that time. See supra note 4.
33
U.S.C. § 706. Although the inquiry under the APA “is to be searching and careful, the ultimate

standard of review is a narrow one. The court is not empowered to substitute its judgment for that

of the agency.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416-20 (1971).

Accordingly, courts may set aside an award only if “(1) ‘the procurement official’s decision lacked

a rational basis or (2) ‘the procurement procedure involved a violation of regulation or procedure.’”

DynCorp, 10 F.4th at 1308 (quoting WellPoint Mil. Care Corp. v. United States, 953 F.3d 1373,

1377 (Fed. Cir. 2020)).

When a protestor alleges the agency’s decision lacked a rational basis, the court reviews

“whether the contracting agency provided a coherent and reasonable explanation of its exercise of

discretion.” Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 992 (Fed. Cir. 2018) (quoting

Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004)). As the United

States Court of Appeals for the Federal Circuit has explained, “the disappointed bidder bears a

heavy burden of showing that the award decision had no rational basis.” Centech Grp., Inc. v.

United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (quoting Impresa Contruzioni Geom.

Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)). Indeed, agency

decisions are “entitled to a presumption of regularity.” Impresa, 238 F.3d at 1338. Protestors bear

a similar burden when alleging that the procurement involved legal or procedural violations, as the

court reviews such claims for “a clear . . . violation of applicable statutes or regulations.” Id. at

1333 (quoting Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973)).

At the second step, regardless of whether the alleged error relates to irrational conduct or

a violation of law, the protestor must establish that the agency’s conduct prejudiced the protestor.

Sys. Studs. & Simulations, Inc. v. United States, 22 F.4th 994, 997 (Fed. Cir. 2021). This is a

factual question for which the protestor must “show ‘that there was a “substantial chance” it would

34
have received the contract award but for’ the [alleged error].” Id. at 998; see also Bannum, Inc. v.

United States, 404 F.3d 1346, 1353 (Fed. Cir. 2005). De minimis errors in the procurement process

generally do not justify relief. Off. Design Grp., 951 F.3d at 1374.

If a protestor meets its burden of demonstrating that the procurement both violated the APA

and prejudiced the protestor, declaratory or injunctive relief may be appropriate. See 28 U.S. C. §

1491(b)(2). However, successful protestors are not automatically entitled to an injunction. See

Centech, 554 F.3d at 1037. Before entering injunctive relief, “the court must consider whether (1)

the plaintiff has succeeded on the merits, (2) the plaintiff will suffer irreparable harm if the court

withholds injunctive relief, (3) the balance of hardships to the respective parties favors the grant

of injunctive relief, and (4) the public interest is served by a grant of injunctive relief.” Id.

The Rules of the United States Court of Federal Claims (Rules or RCFC) provide the

equivalent of an expedited trial on a “paper record, allowing fact-finding by the trial court.”

Bannum, 404 F.3d at 1356. Parties initiate such proceedings by filing motions for judgment on

the administrative record. Rule 52.1(c). In adjudicating cross motions under Rule 52.1, courts

resolve questions of fact by relying on the administrative record. See id. If necessary, a court may

remand the case back to a governmental agency for further factual findings. Rule 52.2.

DISCUSSION

Plaintiff’s arguments fail under this Court’s limited APA review. The parties’ motions

raise seven issues: (1) whether the Navy was required to examine a copy of Dell Marketing’s GSA

Schedule, (2) whether Dell Marketing has a valid Contractor Teaming Arrangement with Dell

Federal, (3) whether the Navy reasonably evaluated Insight’s past performance, (4) whether the

Navy showed improper favoritism toward Dell Marketing, (5) whether the Navy conducted a

reasonable PIA investigation that concluded that the procurement was not affected by a PIA

35
violation, (6) whether the procurement was fundamentally unfair, and (7) whether Insight is

entitled to injunctive relief. See Plaintiff’s Memorandum in Support of Its MJAR (ECF No. 34)

(Pl.’s Mem.) at 23-48; Defendant’s Cross-Motion for Judgment on the Administrative Record and

Response to Plaintiff’s MJAR (ECF No. 38) (Def.’s Cross-MJAR) at 24-57; Intervenor-

Defendant’s Memorandum in Support of its Cross-Motion for Judgment on the Administrative

Record and Response to Plaintiff’s MJAR (ECF No. 39-1) (Int.-Def.’s Mem.) at 23-58. 13 On each

issue, Insight has not demonstrated that the Navy acted irrationally, violated the terms of the

Solicitation, or acted in violation of U.S. procurement law. Furthermore, several of Insight’s

arguments fail because the alleged errors did not prejudice Insight. This Court must therefore deny

Plaintiff’s MJAR, SMJAR, and Second SMJAR, and grant Defendant’s and Intervenor-

Defendant’s Cross-MJARs and Supplemental Cross-MJARs.

I. The Navy Did Not Err in Failing to Evaluate Dell Marketing’s GSA Schedule

Plaintiff first alleges that “the Navy failed to evaluate whether Dell Marketing ha[d] all of

the required Microsoft products on its General Services Administration (‘GSA’) Federal Supply

Schedule (‘FSS’).” Pl.’s Mem. at 11. The Solicitation required offerors to have all the requested

products on their GSA FSS Schedules for the duration of the procurement. See Tab 3.1 (Excerpts

from Original Request for Quotations (RFQ), dated March 17, 2021) at AR 32. While the Navy

relied on representations and documentation provided by Dell Marketing to determine that it

satisfied the GSA FSS Schedule requirement, it did not independently review Dell Marketing’s

GSA Schedule. See Tab 4 (Dell Initial Quote, dated April 6, 2021) at AR 144, 173, 181-800; Tab

41 (Dell Comments on Agency Report, dated July 13, 2021) at AR 4738-41. Plaintiff argues that

13
Citations throughout this Memorandum and Order reference the ECF-assigned page numbers,
which do not always correspond to the pagination within the document.
36
the Navy’s failure to independently review a copy of Dell Marketing’s GSA Schedule was

erroneous because (i) such inspection was required to ensure compliance with the Solicitation, and

(ii) there was “significant countervailing evidence” triggering an obligation for the Navy to

independently verify Dell Marketing’s representations about the contents of its GSA Schedule.

Pl.’s Mem. at 23-29 (quoting Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1331 (Fed.

Cir. 2011)). This Court holds that Plaintiff’s claim fails on both grounds.

A. The Solicitation Did Not Require an Inspection of Dell Marketing’s GSA Schedule

First, Insight alleges that the Navy failed to review Dell Marketing’s GSA Schedule despite

the RFQ’s requirement that “each offeror have a GSA Schedule that (1) covers the duration of the

BPA, and (2) contains ‘[a]ll Microsoft products listed under Attachment #2 – BPA Product and

Price List.’” Pl.’s Mem. at 24 (quoting Tab 3.1 at AR 32). However, the terms of the Solicitation

did not require the Navy to independently verify Dell Marketing’s GSA Schedule. This Court’s

“duty [is] to determine whether the agency’s [eligibility] analysis was consistent with the

evaluation criteria set forth in the RFP, not to introduce new requirements outside the scope of the

RFP.” Alabama Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir.

2009) (citation omitted). The Solicitation clearly did not require the Navy to inspect Dell

Marketing’s GSA Schedule. Rather, it only required offerors to “submit evidence of product

inclusion on [the] GSA Schedule,” Tab 3.3 (Amendment 2 to RFQ, dated March 31, 2021 (without

responses to questions) at AR 101 (emphasis added), and to “only provide Microsoft product

listing and pricing.” Id. at AR 103-104. Indeed, as noted in this Court’s factual findings, neither

offeror submitted its full GSA FSS contract, nor did the RFQ require offerors to do so. See

generally Tab 3.3 at AR 101-04; Tab 4; Tab 5 (Insight Initial Quote, dated April 6, 2021); see also

supra pp. 10-11. Further, the Administrative Record does not support that either offeror objected

37
to the Navy’s process of using offerors’ self-provided Microsoft product and price list as opposed

to requiring submission of offerors’ full GSA FSS contracts. See Tab 3.3; Tabs 4-5.

The Navy complied with the Solicitation’s evaluation criteria by rationally relying on the

representations and documentation provided by both Insight and Dell Marketing. Such reliance is

generally standard practice in government procurements. See Allied Tech., 649 F.3d at 1330 (Fed.

Cir. 2011). “Where an offeror has certified that it meets the technical requirements of a proposal,

the Contracting Officer is entitled to rely on such certification in determining whether to accept a

bid.” Id. (internal quotation omitted).

The Navy’s reliance here was reasonably based on the representations and documentation

provided by Dell Marketing and the Navy’s own due diligence. First, Dell Marketing provided

detailed spreadsheets (i) identifying Microsoft products on its GSA Schedule and the pricing for

those products, and (ii) comparing the Solicitation’s stock-keeping unit numbers with those on

Dell Marketing’s Schedule. Tab 4 at AR 144, 181-800. Second, Dell Marketing certified that it

had the necessary products on its Schedule. Id. at AR 173 (“By responding to this RFQ, vendor is

certifying that all products listed in Attachment 2 are currently included on your GSA Multiple

Award Schedule (MAS) Contract (GS-35F-059DA And GS-35F-0884P*.”). Third, Dell

Marketing submitted a letter from Microsoft referencing this Solicitation and confirming Dell

Marketing’s status as an authorized Microsoft reseller. Id. at AR 801. Fourth, the Navy conducted

its own independent analysis by comparing Dell Marketing’s submitted price list for the BPA to

Dell Marketing’s submitted evidence of inclusion on its FSS to ensure that Dell Marketing’s GSA

Schedule included the necessary products. See Tab 40 (Navy Response to GAO Request for

Information, dated July 13, 2021) at AR 4739. The Navy concluded that it did. Id. (“Almost all

of the SKUs and associated GSA prices listed on Dell’s BPA Attachment 2 – BPA Product and

38
Price List were matched using this method to the GSA SKUs and prices on Dell’s Consolidated

Microsoft Products excel.”); AR 4740 (confirming that all SKUs were “included on Dell’s

Microsoft Price List” and “the prices matched”). Thus, the Navy acted reasonably in relying on

Dell Marketing’s statements and spreadsheets, which reflected that its GSA Schedule contained

the necessary products to satisfy the RFQ. 14 Id. at AR 4740-41.

B. The Alleged Warning Signs Did Not Present “Significant Countervailing
Evidence” Requiring the Navy to Inspect Dell Marketing’s GSA Schedule

Second, there was no “significant countervailing evidence” requiring the Navy to review

Dell Marketing’s GSA Schedule. While an agency is permitted to rely on a bidder’s certification

“that it meets the technical requirements of a proposal . . . in determining whether to accept a bid,”

it should not accept a bid where there is “significant countervailing evidence reasonably known to

the agency evaluators that should create doubt whether the offeror will or can comply with the

requirement.” Allied Tech. Grp., 649 F.3d at 1330-31 (citation omitted). Accordingly, where a

bid “on its face” leads an agency “to the conclusion that an offeror could not and would not comply

with the [applicable requirement],” the agency has an obligation to independently determine

whether the bidder’s representations are accurate. Id. at 1330 (emphasis in original) (citation

omitted).

14
While Intervenor-Defendant understands Plaintiff to also argue in its initial MJAR that the
Solicitation should have, but did not, require the Navy to review bidders’ GSA Schedules, Plaintiff
clarified in its reply brief that it “does not suggest the evaluation scheme in the RFQ was
improper.” Int.-Def’s Mem. at 23-24; Plaintiff’s Response to Defendant’s and Intervenor-
Defendant’s Cross-MJARs and Reply In Support of Plaintiff’s MJAR (ECF No. 44) (Pl.’s Reply)
at 14. The Court agrees with Intervenor-Defendant that had Plaintiff raised such a claim, it would
have been untimely under Blue & Gold Fleet, L.P. v. United States, as “[v]endors cannot sit on
their rights to challenge what they believe is an unfair solicitation, roll the dice and see if they
receive award and then, if unsuccessful, claim the solicitation was infirm.” 492 F.3d 1308, 1314
(Fed. Cir. 2007). Plaintiff was required to raise such an objection to the express terms of the
Solicitation pre-award. Id.

39
Plaintiff points to seven alleged warning signs in Dell Marketing’s proposal that

purportedly demonstrate “significant countervailing evidence” that Dell Marketing’s GSA

Schedule may not have covered the duration of the BPA or may not have contained all the products

required by the Solicitation. Pl.’s Mem. at 26-28; see also Tab 3.3 at AR 101 (“Resellers shall

submit evidence of product inclusion on GSA schedule, i.e., a copy of your GSA approved Price

List.”), AR 102 (“Reseller must have a current General Services Administration (GSA) Federal

Supply Schedule (FSS) contract that covers the duration of the resultant Agreement.”). Plaintiff

contends that such alleged warning signs required the Navy to independently determine whether

Dell Marketing’s bid representations were accurate. See Pl.’s Mem. at 26. However, none of these

alleged warning signs meet the Allied Tech. “significant countervailing evidence” standard;

accordingly, none of the purported warning signs required further investigation by the Navy and

none would have required the Navy to request a copy of Dell Marketing’s full GSA Schedule to

determine whether it contained the products necessary for the procurement. Allied Tech. Grp., 649

F.3d at 1331. The Court will address each alleged warning sign in turn.

First, Plaintiff argues that a search of bidders on the GSA Advantage website, 15

www.gsaadvantage.gov, should have alerted the Navy that Dell Marketing purportedly did not

have the required products on its GSA Schedule, as required by the Solicitation. Pl.’s Mem. at 26-

27. Specifically, Plaintiff contends that the Navy should have had concerns about Dell

Marketing’s GSA Schedule given “Dell Marketing does not even have the first part number from

the RFQ” listed on the GSA Advantage website and none of Dell Marketing’s products listed on

15
As described on GSA’s buying and selling tools website, the GSA Advantage website allows
“federal buyers” to view goods and services contractors provide and to “[s]hop [for] millions of
products and services … or research the market for selling.” https://www.gsa.gov/tools-
overview/buying-and-selling-tools (last viewed June 8, 2022).

40
the GSA Advantage website include required products 16 under the RFQ. See Pl.’s Mem. at 25-26.

However, Plaintiff fails to present evidence that other contractors produced their full GSA

Schedule on the GSA Advantage website, a circumstance that, if true, would certainly have

alarmed the Navy if offerors, such as Dell Marketing, did not follow suit. See generally Pl.’s Mem.

In fact, there is no evidence that Plaintiff’s hypothetical scenario exists. In stark contrast,

Defendants point to other authorized Microsoft Licensing Solution Providers, including Dell

Federal and CDW Government LLC, that, for various reasons, do not list any Microsoft products

on the GSA Advantage website. See Def.’s Cross-MJAR at 27; Int.-Def.’s Mem. at 32. Consistent

with that practice, Dell Marketing reasonably explained that it does not publish its full price list

on GSA Advantage given (i) its large size containing “over 300,000 [stock keeping units]” and (ii)

16
Defendant contends that the Court should not consider this “alleged warning sign” because the
GSA Advantage searches on which Plaintiff relies are not part of the Administrative Record.
Def.’s Cross-MJAR at 26. To the extent Plaintiff asks this Court to consider screenshots of GSA
Advantage searches attached to Plaintiff’s Reply in Support of its Motion to Complete the
Administrative Record (ECF No. 31), this Court agrees with Defendant that it will not consider
those screenshots as they are not a part of the Administrative Record. See Axiom Res. Mgmt., Inc.
v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (explaining that the court is limited to
reviewing the administrative record under APA review to “guard against courts using new
evidence to convert the ‘arbitrary and capricious’ standard into effectively de novo review”
(internal citations and quotations omitted)); see also Exhibits 1-2 of Plaintiff’s Reply in Support
of its Motion to Complete the Administrative Record (ECF Nos. 31-1, 31-2) (containing GSA
searches performed by Plaintiff’s counsel that are not part of the Administrative Record).

Defendant argues that the Court’s inquiry should end there. Def.’s Cross-MJAR at 26. This Court
disagrees. The Administrative Record reflects that the Navy performed a search of the GSA
Advantage website, even though the screenshot of that search is not a part of the Administrative
Record. See Tab 63 (Vendor Submission Workbook) at AR 5565-67; Tab 70 (DoD Website Notice
of Contract Awards, June 4, 2021) at AR 6176. Given neither party contests the result of that
search — namely that Dell Marketing’s GSA Schedule products list was not posted on the GSA
Advantage website — this Court has a basis to conduct “meaningful judicial review” into whether
the omission of Dell Marketing’s products list on GSA Advantage’s website raises to the level of
“significant countervailing evidence.” Axiom Res. Mgmt., 564 F.3d at 1380; Allied Tech. Grp.,
649 F.3d at 1331; see generally Pl.’s Mem. at 25-26; Def.’s Cross-MJAR at 27; Int.-Def.’s Mem.
at 30-32; see also Nov. 17 Tr. at 74:4-7 (acknowledging on behalf of Defendant that Dell
Marketing’s complete pricing is not listed on the GSA Advantage website).
41
its “commercial practices change frequently.” Int.-Def.’s Mem. at 32 (citing Dell Marketing’s

Terms & Conditions); see also Def.’s Cross-MJAR at 27 (arguing the same). As Plaintiff presents

no evidence that it is routine for companies to post their entire GSA Schedule product list on the

GSA Advantage website, Plaintiff fails to establish that the absence of Dell Marketing’s Microsoft

products listed on the GSA Advantage website is “significant countervailing evidence” that would

lead the agency to doubt Dell Marketing’s representations concerning its ability to provide the

requisite products from its GSA FSS. Allied Tech. Grp., 649 F.3d at 1330-31.

Second, Plaintiff contends that Dell Marketing’s request to amend the Solicitation, to

permit Dell Federal and Dell Marketing to submit a bid under a Contractor Teaming Arrangement

(CTA), should have put the Navy on notice that Dell Marketing allegedly would not be able to

meet the requirements of the procurement. Pl.’s Mem. at 26. This claim similarly falls short as

Dell Marketing explicitly informed the Navy that it desired to submit a bid through a teaming

arrangement with Dell Federal because (i) Dell Federal’s FSS was set to expire in 2024 and did

not meet the Solicitation’s requirement that an offeror hold the requisite GSA Schedule for the

duration of the BPA, 17 and (ii) Dell Marketing was unable to handle classified orders, while Dell

Federal could do so. See Tab 3.6 (E-mail Chain regarding Dell Teaming Request, dated March

26-31, 2021) at AR 131-33. While these reasons rationally explain Dell’s request for a teaming

arrangement, neither explanation indicates that Dell Marketing lacked the required products on its

FSS. See Tab 3.1 at AR 31-32. Dell’s preference for submitting a bid under a CTA did not tell

the Navy anything about either entity’s ability to provide the procurement’s required products.

Accordingly, this alone cannot satisfy the “significant countervailing evidence” standard. Allied

Tech. Grp., 649 F.3d at 1330-31; see also Per Aarsleff A/S v. United States, 829 F.3d 1303, 1315

17
See supra pp. 6-7.
42
(Fed. Cir. 2016) (holding proposal based on teaming agreement would not put agency on notice

that the offeror “could not and would not” comply with the solicitation’s requirements (citation

omitted)).

Third, Plaintiff argues that Dell Marketing’s lack of a U.S. Department of Defense

Enterprise Software Initiative Blanket Purchase Agreement (DoD ESI BPA) indicates a defect

with Dell Marketing’s GSA Schedule. Pl.’s Mem. at 26. This claim is without merit as Dell

Marketing’s CTA and reliance on Dell Federal’s DoD ESI BPA are entirely consistent with the

Solicitation. As an initial matter, Dell Marketing is an “authorized [Microsoft] Licensing Solution

Partner” meaning that Dell Marketing is authorized “to sell Microsoft software to state, local, and

federal government customers,” as required by the Solicitation. Tab 4 at AR 801. Additionally,

the RFQ was amended to permit the use of CTAs, and Insight did not object to this amendment

pre-award. See Tab 3.3 at AR 101. Further, the Solicitation did not require a reseller to be a DoD

ESI BPA holder if its teaming partner held a DoD ESI BPA. Id. at AR 102 (“Reseller/ Teaming

Partner must be a DoD ESI BPA Holder for Microsoft Products and Azure Services.”). Since Dell

Federal is a teaming partner with a DoD ESI BPA, Dell Marketing’s proposal complied with the

Solicitation’s requirements. See Tab 34 (Navy Contracting Officer Statement of Facts and

Memorandum of Law, dated July 6, 2021) at AR 4704. Finally, under the circumstances here —

where its teaming partner satisfied the Solicitation requirement — it was immaterial that Dell

Marketing did not hold a DoD ESI BPA. Such a scenario did not inform the Navy about the

contents of Dell Marketing’s GSA Schedule. Thus, the absence of a Dell Marketing DoD ESI

BPA does not indicate “significant countervailing evidence” of a defect with Dell Marketing’s

GSA Schedule. Allied Tech. Grp., 649 F.3d at 1330-31.

43
Fourth, Plaintiff argues that Dell Marketing’s reference to “EA Pricing on GSA,” included

in Dell’s BPA Product and Price List, implied that Dell Marketing was using Dell Federal’s GSA

Schedule, rather than its own, to provide products under the procurement. Pl.’s Mem. at 26-27.

This argument is speculative and falls notably short of Allied Tech.’s “significant countervailing

evidence” test. Allied Tech. Grp., 649 F.3d at 1330-31. Plaintiff contends that “EA” means

“Enterprise Agreement” and refers to the DoD ESI BPA that is held by Dell Federal, while

Intervenor-Defendant contends “EA” commonly references enterprise pricing agreements, in

general, for large organizations. Pl.’s Mem. at 27; Int.-Def.’s Mem. at 29. Plaintiff fails to

establish why the use of “EA,” a common term in this arena, should be interpreted as specifically

referencing the DoD ESI BPA. Without providing a rationale for why the Navy should have

construed the term one way and not another, Plaintiff fails to present “significant countervailing

evidence” that “on its face” raises a red flag requiring further investigation. Allied Tech. Grp., 649

F.3d at 1330-31 (emphasis in original).

Fifth, Plaintiff argues that since the Navy knew that Dell Federal, rather than Dell

Marketing, typically sold enterprise software to the Government, Dell Marketing must not have

had all the requisite products on its GSA Schedule, as required by the Solicitation. Pl.’s Mem. at

27. This claim, which requires a large logical leap, similarly fails. Even assuming arguendo that

Dell Federal sold more enterprise software to the Government than Dell Marketing — an issue this

Court need not resolve — it would be of no moment, as it has no bearing on whether Dell

Marketing’s GSA Schedule covered the requisite Microsoft products mandated by the

Solicitation.18 Further, Plaintiff does not cite any authority reflecting that a general industry

18
Intervenor-Defendant contests Plaintiff’s premise that Dell Federal, rather than Dell Marketing,
is the entity that typically sells enterprise software to the Government. Int.-Def.’s Mem. at 29-30.
As noted, this Court need not evaluate the claim’s veracity as, even if true, the allegation would
44
sentiment or perception can constitute the type of “significant countervailing evidence” that would

require an agency to verify a bidder’s representations, upon which the agency is generally entitled

to rely. Allied Tech. Grp., 649 F.3d at 1330-31. Accordingly, this claim fails as well.

Sixth, Plaintiff argues that the Navy should have been aware that Dell Marketing allegedly

did not have all required products on its GSA Schedule given Dell Marketing submitted past

performance information solely for Dell Federal. Pl.’s Mem. at 27. However, Plaintiff fails to

account for the multitude of reasons why past performance data may be absent for the prime

contractor in a CTA. For example, the non-prime contractor may have performed more of these

types of contracts in the past, and thus had more relevant past performance data. Further, as

Intervenor-Defendant notes, the RFQ expressly permitted Dell to submit past performance

references from Dell Federal, rather than Dell Marketing. Int.-Def.’s Mem. at 30 (citing Tab 3.3

at AR 102 (permitting the “Reseller/Teaming Partner [to] submit 2” past performance references)).

It would be incongruous to suspect Dell Marketing of malfeasance for submitting precisely the

information that the RFQ permitted. Finally, Plaintiff has failed to demonstrate or cite any support

for the proposition upon which it seemingly relies — namely that the number of partner references

in comparison to the number of prime references can constitute “significant countervailing

evidence” that would trigger a duty to verify the bidder’s representations. Allied Tech. Grp., 649

F.3d at 1330-31. Accordingly, this claim similarly fails.

Seventh, Plaintiff argues that the CTA between Dell Marketing and Dell Federal was

invalid because Dell Federal allegedly could not supply the requisite products from its GSA

Schedule. Pl.’s Mem. at 27. Thus, based on Plaintiff’s hypothetical of an invalid CTA, Insight

fail to meet the Allied Tech. standard requiring further agency action. Allied Tech. Grp., 649 F.3d
at 1330-31; see also supra pp. 44-45.
45
contends that the Navy was required to independently review Dell Marketing’s GSA Schedule

because Dell Marketing purportedly could not have provided the requisite products under the

Solicitation without a valid CTA. See id. As an initial matter, Plaintiff’s premise is incorrect —

as explained below, the Solicitation did not require both CTA partners to provide products from

their respective GSA Schedules. See Tab 3.3 at AR 101-04; infra at pp. 46-48. As Dell’s CTA

was valid and neither the CTA nor the Solicitation required each team member to provide products,

any alleged failure by Dell Marketing to include in its proposal a list of products that would be

offered by Dell Federal does not present “significant countervailing evidence” triggering an

agency obligation to independently verify Dell Marketing’s representations about the contents of

its GSA Schedule. Allied Tech. Grp., 649 F.3d at 1330-31. As with Plaintiff’s other alleged

warning signs, this claim also fails. Accordingly, the Navy did not err by declining to

independently review Dell Marketing’s GSA Schedule.

II. Dell Marketing Has a Valid Contractor Teaming Arrangement with Dell Federal

Next, Plaintiff contends that Dell Marketing lacks a valid Contractor Teaming

Arrangement (CTA) with Dell Federal because under Dell’s proposal, Dell Federal does not supply

any products from its GSA Schedule. Pl.’s Mem. at 28-29. Defendants respond that Plaintiff’s

argument is (i) waived as untimely, 19 and (ii) lacks merit as both members of a CTA are not

required to supply products from their own GSA Schedules for the CTA to be valid. Def.’s Cross-

MJAR at 29-31; Int.-Def.’s Mem. at 32-37. While the timeliness issue falls in Plaintiff’s favor,

Defendants ultimately prevail on the merits of this argument.

19
The timeliness argument is raised by Intervenor-Defendant, but not by Defendant. Int.-Def.’s
Mem. at 32-37.

46
First, Intervenor-Defendant’s timeliness argument under Blue & Gold Fleet, 492 F.3d at

1313, is unavailing. Dell Marketing characterizes Plaintiff’s argument as a tardy objection to

Amendment 2 to the Solicitation, which permitted Dell Marketing to enter a CTA with Dell

Federal. See Int.-Def.’s Mem. at 33; Tab 3.3 at AR 101 (“Contractor Teaming Arrangements will

be accepted.”). Dell Marketing contends that Plaintiff waived this argument by failing to raise it

pre-award. Int.-Def.’s Mem. at 33. Dell Marketing mischaracterizes Plaintiff’s argument.

Plaintiff does not dispute that the Solicitation as amended allowed for teaming arrangements. See

Pl.’s Reply at 21 n.7 (“Insight has never claimed that ‘Dell Marketing could not enter a CTA with

Dell Federal.’” (quoting Int.-Def.’s Mem. at 33)). Rather, Plaintiff alleges that Dell Marketing did

not form a valid CTA with Dell Federal and thus should be ineligible for the award. See Pl.’s

Mem. at 28-29. Accordingly, as Plaintiff’s objection does not relate to the terms of the Solicitation,

Blue & Gold is inapplicable, and Plaintiff’s claim is timely. Blue & Gold, 492 F.3d at 1313.

Turning to the merits of Plaintiff’s claim, Plaintiff fails to cite any authority mandating that

each member of a CTA provide some products off its GSA Schedule for the CTA to be valid. See

Pl.’s Mem. at 28-29. This is likely because “[t]here is no FAR or [General Services Acquisition

Manual] FAR supplement regulation that actually provides any definition of what a CTA is and

what its elements must be. There is only [GSA’s] website.” Brooks Range Cont. Servs., Inc. v.

United States, 101 Fed. Cl. 699, 716 n.16 (2011) (citation omitted). While GSA’s website provides

useful guidance, it is not law and does not establish necessary elements for creating a valid CTA.

Brooks Range Cont. Servs., 101 Fed. Cl. at 716 n.16 (“Notwithstanding their mandatory phrasing,

the four elements [on GSA’s website] are not contained in [the Solicitation, the FAR, or in binding

precedent,] providing mandatory requirements for offerors.”). Further, the Solicitation does not

47
incorporate GSA’s website guidance for establishing a valid CTA. See Tab 3.3 at AR 101-04.

Thus, Dell’s CTA was not required to comply with guidance listed on GSA’s website.

However, even if satisfaction of GSA’s website guidance were required to create a valid

CTA, Dell Marketing’s CTA would clearly satisfy such requirements. GSA’s website lists four

elements for creating a CTA: (i) “[e]ach team member must have a GSA Schedule contract,” (ii)

“[e]ach team member is responsible for duties addressed in the CTA,” (iii) “[e]ach team member

has privity of contract with the government and can interact directly with the government,” and

(iv) “the buying entity is invoiced at each team member’s unit prices or hourly rates as agreed in

the . . . GSA Schedule BPA.” See https://www.gsa.gov/buying-selling/purchasing-programs/gsa-

multiple-award-schedule/schedule-features/contractor-team-arrangements (last viewed June 8,

2022). It is undisputed that both entities (i) have GSA Schedules, Tab 6.1 (Additional E-mails

between the Navy and Dell regarding Dell’s Quote, dated April 7-8, 2021) at AR 3301, (ii) are

responsible for duties under the CTA with Dell Federal providing services for secure orders and

Dell Marketing providing products, such as hardware and software, for all other orders, id., and

(iii) charge the Government based on Dell Marketing’s GSA Schedule, as indicated in the CTA.

Id. at AR 3312, 3302. Plaintiff contests only the “privity” element, arguing that Dell Federal is

not in privity of contract with the Government because a subcontractor could fulfill the secure

order requirements under the Solicitation. Pl.’s Reply at 19-20 (citing Winter v. FloorPro, Inc.,

570 F.3d 1367, 1371 (Fed. Cir. 2009) (“[S]ubcontractors are generally not in privity of contract

with the government.”)). This argument is not well taken.

Plaintiff does not allege that Dell Federal is operating as a subcontractor in this

procurement, nor could it as both Dell entities are teaming partners. See Pl.’s Reply at 19-20; Tab

6.1 at AR 3313. Rather, Plaintiff presents an unsupported argument that since a subcontractor

48
could provide the same services as Dell Federal, Dell Federal should be treated as a subcontractor,

and thus no privity exists between the Navy and Dell Federal. See Pl.’s Reply at 19-20. This

argument runs contrary to law. Privity of contract exists where “[t]he relationship between the

parties to a contract, allow[s] them to sue each other but prevent[s] a third party from doing so.”

Estes Exp. Lines v. United States, No. 11-597C, 2017 WL 3393298, at *9 (Fed. Cl. Aug. 8, 2017)

(quoting Privity of Contract, Black’s Law Dictionary (10th ed. 2014)). Direct privity is established

if the parties have a contractual relationship that evinces their intent to be bound. Estes Exp. Lines

v. United States, 739 F.3d 689, 693-94 (Fed. Cir. 2014) (finding privity of contract between the

Government and a federal motor carrier where no contract existed between the two, yet the

Government “expressly authorized, by contract its designation as a party to the bills of lading”

between the carrier and a third-party, and the Government accepted all shipments from the carrier

expressing its intent to be bound).

Direct privity exists between the Navy and Dell Federal. While this Court agrees with

Defendant that the “Government will not have ‘privity of contract’ with anyone for the BPA itself,”

since the Solicitation indicates that the Government is “under no obligation to exercise any options

contained in this BPA or any Order resulting from this BPA,” that changes when the Government

places an order from the BPA. Def.’s Cross-MJAR at 30 n.7; Tab 3.3 at AR 79; see also Crewzers

Fire Crew Transp., Inc. v. United States, 741 F.3d 1380, 1384 (Fed. Cir. 2014) (holding no privity

where the Government was not required to exercise its options by purchasing from the BPA and

the solicitation stated purchases from parties other than the BPA awardee would not violate the

Agreement). Once the Navy places orders from the BPA, it will be in privity with Dell Federal

and Dell Marketing — Dell Federal for fulfilling secure ordering needs and Dell Marketing for

“invoicing and payment for [s]oftware orders.” Tab 6.1 at AR 3313; see Zhengxing v. United

49
States, 204 F. App’x 885 (Fed. Cir. 2006) (holding BPAs create contractual obligations regarding

accepted orders); Mod. Sys. Tech. Corp. v. United States, 979 F.2d 200 (Fed. Cir. 1992) (holding

accepted orders from a BPA create enforceable obligations between the parties).

Privity will be established between the Government and Dell Federal as the latter is solely

“responsible for fulfilling any secure order requirements,” and Dell Marketing is not listed as

secondarily responsible for secure orders if Dell Federal fails to perform. Tab 6.1 at AR 3313

(emphasis added). Dell’s response to the Navy’s question about liability emphasizes this point by

indicating that “each individual team member [of the CTA] is responsible for their performance.”20

Id. at AR 3312. Since the Administrative Record clearly indicates that Dell Federal will be solely

responsible for secure orders under the CTA, and the Government selected Dell for the BPA with

knowledge of Dell’s CTA, a contractual relationship — and thus privity — will be established

between the Government and Dell Federal as soon as the Government places a secure order. Id.

at AR 3293 (describing responsibilities of Dell Federal and Dell Marketing to the Navy under the

CTA).

Finally, Plaintiff relies on the GAO’s decision in Veterans Healthcare to buttress its

argument that a valid CTA exists only where both partners provide products from their GSA

20
In its reply, Plaintiff argues for the first time that Dell’s CTA violated the FAR’s 8.405-
3(b)(1)(ii)(C) requirement that an “award is made in accordance with the basis for selection in the
RFQ.” Pl.’s Reply at 20 (quoting FAR 8.405-3(b)(1)(ii)(C)). First, Plaintiff waived this argument
by raising it for the first time in its reply brief. Novosteel SA v. U.S., Bethlehem Steel Corp., 284
F.3d 1261, 1274 (Fed. Cir. 2002) (“Raising the issue for the first time in a reply brief does not
suffice; reply briefs reply to arguments made in the response brief — they do not provide the
moving party with a new opportunity to present yet another issue for the court’s consideration.”
(emphasis in original)). Second, even if not waived, Plaintiff’s argument is based on an incorrect
premise that Dell Federal would not be in privity of contract with the Government. See Pl.’s Reply
at 20. Given that privity exists between Dell Federal and the Government, and the Solicitation did
not indicate that CTAs must comply with GSA’s website guidance, the Navy properly followed
the “basis for selection in the RFQ.” FAR 8.405-3(b)(1)(ii)(C); see also Tab 3.3 at AR 101-02.

50
Schedules. Veterans Healthcare, however, is inapposite to the proposition Plaintiff posits. The

GAO merely held that a solicitation requiring that each member of a CTA hold its own FSS

contract was “not unduly restrictive of competition or otherwise improper.” Veterans Healthcare

Supply Sols., Inc, B-409888, 2014 CPD ¶ 269, 2014 WL 4384601 at *3 (Comp. Gen. Sept. 5,

2014). Unlike the CTA at issue in Veterans Healthcare, Dell’s CTA contemplates that Dell

Federal would be in privity of contract with the Government to fulfill secure needs under the BPA,

while Dell Marketing would be in privity of contract with the Government to fulfill non-secure

product needs. Tab 6.1 at AR 3313. Significantly, unlike the solicitation’s CTA requirements in

Veterans Healthcare, the Solicitation here does not require each teaming partner to provide

products from its GSA Schedule. See Tab 3.3 at AR 101-04. Thus, the reasoning in Veterans

Healthcare is inapplicable to determining the validity of the CTA between Dell Marketing and

Dell Federal.

Having found, among other reasons discussed above, that both entities need not each

provide products from their respective GSA Schedules to create a valid CTA under this

Solicitation, the Court finds Dell Marketing and Dell Federal’s CTA valid.

III. The Navy Conducted a Reasonable Past Performance Evaluation

Plaintiff objects to the Navy’s past performance evaluation, arguing that Insight should

have received (1) a “Substantial Confidence” — rather than a “Satisfactory Confidence” — Past

Performance rating (or “at a minimum a higher Confidence rating than Dell”), and (2) a “Very

Relevant” — rather than a “Relevant” — Relevance rating. Pl.’s Mem. at 29-31. Defendants

respond that the Navy reasonably evaluated the offerors’ past performance, but even if the

evaluation were unreasonable, Plaintiff’s claim would still fail for lack of prejudice. Def.’s Cross-

MJAR at 32-38; Int.-Def.’s Mem. at 37-41. Three issues arise out of Plaintiff’s objection to the

51
Navy’s past performance evaluation, all of which weigh in favor of Defendants: (i) whether

Insight’s Confidence rating was rationally assigned, (ii) whether Insight’s Relevance rating was

rationally assigned, and (iii) even assuming Insight’s ratings were irrationally assigned, whether

Insight was prejudiced.

In addition to the normal deference afforded to the agency under the Administrative

Procedure Act, even greater deference is given to an agency’s past performance evaluation. See

Active Network, LLC v. United States, 130 Fed. Cl. 421, 432 (2017) (“When reviewing an

evaluation of past performance in a negotiated procurement, the Court affords an agency, ‘the

greatest deference possible is given to the agency.’”), aff’d, 718 F. App’x 981 (Fed. Cir. 2018);

Westech Int’l, Inc. v. United States, 79 Fed. Cl. 272, 293 (2007) (same, referencing situation as “a

triple whammy of deference.”). In evaluating the agency’s expression of its discretion, the court

is “limited to determining whether the evaluation was reasonable, consistent with the stated

evaluation criteria and complied with relevant statutory and regulatory requirements.” Banknote

Corp. of Am. v. United States, 56 Fed. Cl. 377, 381 (2003), aff’d, 365 F.3d 1345 (Fed. Cir. 2004);

see also FAR 8.405-3(b)(1)(ii)(C) (requiring agencies to ensure that an “award is made in

accordance with the basis for selection in the RFQ”). Thus, mere disagreements with an agency’s

past performance evaluation fail to establish that the agency acted unreasonably. Active Network,

130 Fed. Cl. at 433; Fluor Intercontinental, Inc. v. United States, 147 Fed. Cl. 309, 329 (2020);

see also Newimar S.A. v. United States, No. 21-CV-1897, 2022 WL 1592813, at *30 (Fed. Cl. May

12, 2022) (explaining, in price reasonableness context, that “mere disagreement with the

[agency’s] conclusion . . . cannot sustain a protest”). Plaintiff fails to establish that its objections

to the Navy’s past performance evaluation amount to anything more than a disagreement with the

agency’s determination.

52
Servs., LLC v. United States, 153 Fed. Cl. 89, 126-134 (2021) (holding agency irrationally applied

ratings inconsistent with solicitation’s adjectival definitions); FFL Pro LLC v. United States, 124

Fed. Cl. 536, 555-57 (2015) (same). Instead, the Navy conducted a detailed review — considering

the precise differences Plaintiff references in its charts — by analyzing the parties’ sub-ratings and

narrative comments to determine that, while Insight’s past performance record was “slightly better

than Dell’s,” “[b]oth vendors’ past performance provided the Government with a reasonable

expectation that they will successfully perform the required effort.” Tab 12.1 at AR 4360, 4374-

77. Plaintiff fails to demonstrate that the Navy’s ratings were inconsistent “with the stated

evaluation criteria and . . . with relevant statutory and regulatory requirements.” Banknote Corp.

of Am., 56 Fed. Cl. at 381. Indeed, the Navy acted well within its broad discretion in awarding

Insight and Dell Marketing their adjectival ratings.

Defendants contend that under Plaintiff’s mistaken, formulaic approach to past

performance analyses, the Navy would be required to merely add up each offeror’s numerical

ratings to determine its overall adjectival rating. Def.’s Cross MJAR at 35; Int.-Def.’s Mem. at

39. Plaintiff objects to that characterization of its argument, maintaining that it “is not arguing that

the Navy should have added scores together to find that Insight was rated higher than Dell.” Pl.’s

Reply at 21. Rather, Plaintiff contends that the Navy’s “failure to rate the proposals differently . .

. despite . . . significant differences, show a failure to meaningfully evaluate past performance at

all.” Id. at 22. This Court disagrees. Merely because the Navy “assigned [both] proposals the

same rating[] does not render the ratings per se improper.” Sys. Application & Techs., Inc., v.

United States, 100 Fed. Cl. 687, 719 (2011) (holding rational agency’s assignment of same

adjectival ratings to all three proposals despite differences), aff’d, 691 F.3d 1374 (Fed. Cir. 2012).

54
Further, the Court’s role is not merely to analyze the adjectival ratings in a vacuum. Rather,

it is this Court’s duty “to look beyond adjectival ratings because proposals with the same adjectival

rating are not necessarily of equal quality.” Id. (internal quotations and citation omitted). The

Administrative Record reflects that the Navy rationally assessed that it had a “reasonable

expectation” that both offerors could perform under the Solicitation based on their past

performance, and thus awarded both offerors the same “Satisfactory Confidence” rating despite

any differences. Tab 12.1 at AR 4375; see also SDS Int’l v. United States, 48 Fed. Cl. 759, 769

(2001) (holding agency may use its judgment to weigh various factors in awarding an adjectival

rating).

The cases on which Plaintiff relies do not alter this Court’s analysis. For example, unlike

here where the Navy’s RFQ lacked adjectival definitions for Past Performance Confidence ratings,

in Plaintiff’s cited cases, Mortgage Contracting Services and FEL Pro LLC, the solicitations

expressly defined adjectival ratings. Compare Tab 3.3 at AR 103, with Mortg. Contracting Servs.,

LLC v. United States, 153 Fed. Cl. 89, 126-134 (2021), and FFL Pro LLC v. United States, 124

Fed. Cl. 536, 555-57 (2015). Thus, Mortgage Contracting Services and FEL Pro LLC’s holdings,

that the agencies improperly assigned adjectival ratings based on solicitation definitions, are

inapposite here where no such definitions exist. Mortg. Contracting Servs., 153 Fed. Cl. at 126-

134; FFL Pro, 124 Fed. Cl. at 555-57. Further, while in its EFW, Inc. decision, the GAO found

past performance ratings irrational where the agency had stated that it “will not . . . discuss[]

further” why both offerors were assigned the same adjectival rating, here the Navy fully explained

that it found Insight’s past performance “slightly better” than Dell’s, yet awarded the bidders the

same adjectival rating because it reasonably believed both would be able to perform under the

contract. EFW, Inc., B-412608, B-412608.2, 2016 CPD ¶ 304, 2016 WL 6919877, at *9-10

55
(Comp. Gen. Apr. 7, 2016) (citation omitted); see Tab 12.1 at AR 4360. Given in EFW, unlike

here, the agency provided no explanation for assigning the same ratings, that GAO decision is

readily distinguishable.

Finally, that Plaintiff — or even this Court — may have assessed different adjectival ratings

had it done so itself is of no import. This Court does not undergo a de novo review in an APA bid

protest such as this one. Banknote Corp. of Am., 56 Fed. Cl. at 381 (analyzing whether past

performance evaluation was reasonable); CSE Const. Co. v. United States, 58 Fed. Cl. 230, 252

(2003) (same). Rather, the Court determines whether the agency action was reasonable while

affording the agency the “greatest deference possible.” Active Network, 130 Fed. Cl. at 432

(citation omitted); see Impresa, 238 F.3d at 1332 (applying reasonableness standard in APA

review). As past performance evaluations “are not subject to a mathematical calculation,” and the

Navy engaged in a reasonable analysis to support its evaluation, the Navy was generally entitled

to use its judgment in assigning adjectival ratings. See Glenn Def. Marine (ASIA), PTE Ltd. v.

United States, 720 F.3d 901, 909 n.6 (Fed. Cir. 2013) (deferring to agency’s discretion in weighing

sub-scores and narrative comments before assigning adjectival rating). Accordingly, this Court

defers to the Navy’s reasonable judgment here concerning Insight’s Confidence rating.

B. The Navy Rationally Assigned Insight’s Relevance Rating

Second, the Navy rationally assigned Insight’s Relevance rating. Plaintiff contends that it

should have received a “Very Relevant,” rather than a “Relevant,” Relevance rating because its

past performance references were valued at more than $50 million per year and thus were “similar”

to the BPA, as defined by the Solicitation. Pl.’s Mem. at 30-31 (citing Tab 8.8 (Insight CPARs)

at AR 3466-77). In essence, Plaintiff argues that the Navy acted contrary to the terms of the

Solicitation by discounting its past performance relative to the Solicitation’s Relevancy

56
definitions. See id. Again, as explained further below, Plaintiff’s argument amounts to a

disagreement with the Navy’s decision; that is insufficient to find the evaluation arbitrary and

capricious. Active Network, 130 Fed. Cl. at 433; Fluor Intercontinental, 147 Fed. Cl. at 329.

The Navy’s Relevance rating is “owed deference as it is among the minutiae of the

procurement process.” Glenn Def. Marine, 720 F.3d at 911 (citations and internal quotations

omitted) (deferring to agency’s finding that bidder’s past performance was relevant as it involved

“many of the same ports” as the solicitation and provided services “similar to the services required

by th[e] [s]olicitation”). Significantly, FAR 15.305(a)(2)(ii) leaves “what does or does not

constitute ‘relevant’ past performance [to the agency’s] considered discretion.” PlanetSpace, Inc.

v. United States, 92 Fed. Cl. 520, 539 (2010) (citing FAR 15.305(a)(2)(ii)). For the reasons

discussed below, the Navy applied such “considered discretion” in assigning Insight a Relevance

rating of “Relevant.” Id.; Tab 12.1 at AR 4374.

The Solicitation indicates that Relevance is evaluated based on “size” and “scope,” with

“similar size . . . valued at approximately $50M or greater per year, and similar scope . . .

includ[ing] any award that is agency/component-wide, multi-agency, or department-wide.” Tab

3.3 at AR 103. Significantly, Plaintiff’s argument rests on “size” alone without taking into account

the “scope” of those projects, as required by the Solicitation. See Pl.’s Mem. at 30-31; Tab 3.3 at

AR 103. As Plaintiff argues that the agency acted contrary to the terms of the Solicitation, it needs

to demonstrate that the Navy failed to adhere to the Relevancy definition by insufficiently rating a

project with a similar “size” and “scope.” See Banknote Corp. of Am., 56 Fed. Cl. at 381 (analyzing

solicitation requirements to determine whether the agency acted rationally); see also Pl.’s Mem at

30-31. Since Plaintiff does not argue that its projects were similar in “scope” to the BPA, its claim

cannot establish that the Navy irrationally evaluated Relevance. See Pl.’s Mem. at 30-31. In fact,

57
as noted below, the “scope” of Insight’s past projects was significantly narrower than the BPA, a

fact that supports finding that the Navy acted rationally. Plaintiff’s failure to critique the Navy’s

“scope” evaluation renders the claim meritless.

Further, since the Solicitation does not define the various Relevance ratings and does not

indicate whether projects of similar “size” and “scope” should be rated as “Somewhat Relevant,”

“Relevant,” or “Very Relevant,” the Navy had the discretion to determine how to rate offerors’

past projects. See Tab 3.3 at AR 103; DynCorp Int’l LLC v. United States, 139 Fed. Cl. 481, 489-

90 (2018) (agreeing with GAO that agencies are entitled to “greater discretion” in evaluating

relevancy when solicitation does not “expressly define” it). While Insight’s past projects were

valued at $256 million and $227 million annually (i.e., “size”), each serving one component of the

U.S. Department of Defense (i.e., “scope”), the BPA at issue here is valued at approximately $680

million annually (i.e., “size”), potentially serving the entire U.S. Department of Defense (i.e.,

“scope”). Compare Tab 5 at AR 807-10 (Insight’s past project’

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7797026. Public record. Not legal advice.