# Frawner Corporation v. United States

> United States Court of Federal Claims · August 8, 2022

URL: https://www.frixlaw.com/law-library/cases/7799086

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** August 8, 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/7799086

## How later opinions describe it (automated extraction)

- holding agency acted within its discretion in “not assign[ing] an adjectival rating to each selection criterion” in determining overall adjectival rating
- holding agency has “broad discretion in evaluating proposals in a ‘best value’ procurement”
- explaining that terms such as “will” and “will not” are mandatory
- applying a rational basis standard to agency’s price reasonableness analysis
- holding best value tradeoff insufficient as it failed to indicate whether “the government would receive benefits commensurate with the price premium it proposed to pay”

## Opinion text

In the United States Court of Federal Claims

FRAWNER CORPORATION,
No. 22-cv-0078
Plaintiff,
Filed Under Seal: July 29, 2022
v.
Publication: August 8, 20221
THE UNITED STATES,

Defendant.

Edward T. DeLisle, Offit Kurman, Plymouth Meeting, Pennsylvania for Plaintiff. With him on
the briefs are Adrés M. Vera, Offit Kurman, P.A., Bethesda, Maryland, and James C. Dougherty,
Offit Kurman, P.A., Vienna, Virginia.
David M. Kerr, United States Department of Justice, Civil Division, Commercial Litigation,
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; Deborah A. Bynum, Assistant Director, Commercial Litigation; and
Nicholas T. Iliff, Jr., United States Air Force, Commercial Litigation Field Support Center.

MEMORANDUM AND ORDER

Located on the edge of Anchorage, Alaska, “amid picturesque, majestic, snow-capped

mountains, lakes, rivers and glaciers,” Joint Base Elmendorf-Richardson (JBER) spans nearly

13,130 square acres, making it the largest military installation in Alaska.2 JBER is “one of the

1
This Memorandum and Order was filed under seal in accordance with the Protective Order
entered in this case (ECF No. 15) and was publicly reissued after incorporating all redactions
proposed by the parties. (ECF No. 38.) The sealed and public versions of this Memorandum and
Order are substantively identical, except for the addition of the publication date and this footnote.
2
https://installations.militaryonesource.mil/in-depth-overview/joint-base-elmendorf-richardson-
jber (last viewed June 23, 2022); https://www.pacaf.af.mil/Info/Fact-
Sheets/Display/Article/909896/elmendorf-air-force-base/ (last viewed June 23, 2022).
most prominent and active Air Force bases in the United States,” housing elite units such as the

United States Air Force’s 3rd Wing, whose mission is to “support and defend U.S. interests in the

Asia Pacific region and around the world.”3 As a large military installation, JBER requires

continued maintenance to keep its “more than 800 buildings, two runways and more than 150 miles

of roads” in pristine condition.4 But Alaska is different than the lower forty-eight. Situated above

the 50th and 60th parallels, Alaska experiences “severe weather conditions” between October and

March, narrowing the window for performing such maintenance.5

At issue in this protest are contract awards issued to third parties to perform maintenance

and repair tasks at JBER. The protestor, Frawner Corporation (Frawner), a “small business full-

service general contractor specializing in general, civil, and industrial construction services,”

brings this post-award bid protest challenging the decision of Defendant United States, acting

through the U.S. Department of the Air Force (Air Force), “not to award Frawner an indefinite-

delivery/indefinite-quantity (“IDIQ”) contract” under solicitation number FA500021R0001

(Solicitation). Complaint (ECF No. 1) (Compl.) ¶ 1, 3. In its Complaint, Frawner argues that the

Air Force arbitrarily and capriciously (i) “applied numerous unstated evaluation criteria that could

3
https://installations.militaryonesource.mil/in-depth-overview/joint-base-elmendorf-richardson-
jber (last viewed June 23, 2022); https://www.pacaf.af.mil/Info/Fact-
Sheets/Display/Article/909896/elmendorf-air-force-base/ (last viewed June 23, 2022);
https://www.jber.jb.mil/Units/Air-Force/ (last viewed June 23, 2022).
4
https://www.pacaf.af.mil/Info/Fact-Sheets/Display/Article/909896/elmendorf-air-force-base/
(last viewed June 23, 2022).
5
https://installations.militaryonesource.mil/in-depth-overview/joint-base-elmendorf-richardson-
jber (last viewed June 23, 2022); see also Transcript of Oral Argument, dated March 17, 2022
(ECF No. 30) (Tr. Oral Arg.) at 60:10-15 (“[T[hey do have a very -- as Your Honor knows, a very
short window of time to get these projects done [as] [a] lot of them are out of doors or require, you
know, moving things around outdoors.”).

2
not be reasonably gleaned from the Solicitation but had a major impact on the ultimate award,”6

and (ii) conducted a best value analysis that did not adequately consider price tradeoffs. Id. ¶¶ 62,

82-89. Frawner seeks (1) an order holding unlawful the Air Force’s failure to award Frawner the

contract, (2) an injunction barring the Air Force from “awarding and/or proceeding with any

Award (including any Task Order Award) under the Solicitation pending reevaluation and a new

award decision,” (3) an order directing the Air Force to “reevaluate proposals or, in the alternative,

resolicit proposals for this procurement, and make a new best value decision,” and (4) its attorneys’

fees and costs associated with this action.7 Id. at 34.

During the pendency of this litigation, Defendant consented to a voluntary stay of its award

through March 31, 2022. See January 31, 2022, Joint Status Report (ECF No. 16) at 2. The parties

subsequently filed motions for judgment on the administrative record, and on March 17, 2022, this

Court conducted oral argument on the pending motions. See Transcript of Oral Argument, dated

March 17, 2022 (ECF No. 30) (Tr. Oral Arg.); Plaintiff’s Motion for Judgment on the

Administrative Record (ECF No. 24) (Pl.’s MJAR); Defendant’s Cross-Motion for Judgment on

the Administrative Record (ECF No. 27) (Def.’s Cross-MJAR). Due to the “fast approaching start

to the Alaskan construction season[,] the expiry of [D]efendant’s voluntary stay, . . . and [a]s all

parties agreed,” the Court issued a decision on the record on March 31, 2022. Transcript of Joint

Status Conference dated March 31, 2022 (ECF No. 35) at 3:7-16. Accordingly, as reflected on the

6
These allegedly unstated criteria include: (1) assigning sub-factor ratings to a past project’s
“scope, magnitude [of effort], and complexity” in evaluating its Relevance; (2) determining
Relevance ratings based on “the lowest adjectival rating” from the three sub-factor ratings; (3)
examining each project individually, rather than reviewing projects holistically, under the “scope”
sub-factor of Relevance; and (4) instituting “the mechanical application of the unstated $2 Million
maximum value for Past Performance projects.” Compl. ¶¶ 63-69.
7
Plaintiff does not address fees or costs in its Motion for Judgment on the Administrative Record.
See Plaintiff’s Motion for Judgment on the Administrative Record (ECF No. 24).

3
record and in this Court’s May 31, 2022 Order (ECF No. 33), and for the reasons explained below,

this Court GRANTS in part Plaintiff’s Motion for Judgment on the Administrative Record (ECF

No. 24) and DENIES in part Defendant’s Cross-Motion for Judgment on the Administrative

Record (ECF No. 27).

BACKGROUND8

The current protest centers on “a contracting program designed to support the Air Force’s

673d Civil Engineer Group in the performance of a broad range of construction and facilities

maintenance activities” at Joint Base Elmendorf–Richardson in Anchorage, Alaska. Compl. ¶ 9.

While the JBER contracting program involves two government contracts – “a larger unrestricted

multiple-award design-build contract set-aside for businesses in the Small Business

Administration’s 8(a) Business Development Program (the ‘DB-MACC’) and the [Multiple

Award Construction Contract, referred to as the] Mini-MACC” involving “less-complex” and

“‘minimal’ repair and alternation projects” – only the Mini-MACC contracts are at issue in this

protest. Id. ¶¶ 9-10. As described below in further detail, Frawner filed the present action after

the Air Force declined to award it one of the Mini-MACCs.

I. Solicitation

The Solicitation for the Mini-MACC contracts was issued on May 3, 2021. See, e.g., Tab

8 (Solicitation No. FA500021R0001 (May 3, 2021)); Tab 58 (Executed Contracts (December 28,

2021)) at Administrative Record (AR) 3291 (noting “DATE ISSUED 5/3/2021”). Bids were

originally due by June 1, 2021, at 2:00 p.m. Alaska Daylight Time. Tab 8 at AR 320. Amendment

8
This section contains the Court’s findings of fact derived from the Administrative Record (AR).
The AR is contained in ECF No. 23. Documents within the Administrative Record are divided
into “Tabs.” An index of the Administrative Record’s tabs can be found at ECF No. 23-1.

4
0005 to the Solicitation extended that deadline to June 14, 2021.9 Tab 13 (Amendment 0005 (June

6, 2020)) at AR 835. The Air Force anticipated awarding “up to 4” Mini-MACC contracts that

would satisfy its construction needs at JBER on an “as needed basis.” Tab 8 at AR 320. While

the DB-MACC primarily fulfilled task orders “requiring more than incidental design or the

services of a registered architect or professional engineer,” the Mini-MACC complemented the

DB-MACC by satisfying JBER’s “small project” needs. Id. at AR 324. As specified in the

Solicitation, the Mini-MACC’s tasks—which are fulfilled by the Mini-MACC contractors —

would consist of “multiple disciplines in general construction categories of on-base facilities for

JBER.” Id. Contractors fulfilling the Mini-MACC’s requirements were expected to have the

design and engineering expertise of a “general construction contractor.” Id.

The Mini-MACC awards are indefinite delivery/indefinite quantity (IDIQ) contracts

governed under FAR “Part 15, Department of Defense (DoD) FAR Supplement Procedures,

Guidance and Information Subpart 215.3, and Air Force FAR Supplement (AFFARS) Mandatory

Procedure (MP) 5315.3.” Tab 8 at AR 323; Tab 7 (Source Selection Plan (June 4, 2021)) at AR

317. As defined by the General Services Administration (GSA), IDIQ contracts “provide for an

indefinite quantity of services for a fixed time [and] are used when [an agency] can’t determine,

above a specified minimum, the precise quantities of supplies or services that the government will

9
Between May 3, 2021 and June 7, 2021, the Air Force issued five other amendments to the
Solicitation that did not substantively alter the evaluation process as it relates to this action. See
Tab 41 (Source Selection Evaluation Board Report (December 8, 2021)) at AR 2565 (Amendment
0001 – “Updated site visit date and building number for the seed project”; Amendment 0002 –
“1st proposal due date extension, remove FAR clause, removed mission essential contractor
services plan, and provide site visit sign in sheet”; Amendment 0003 – “Responded to contractor
questions 1 through 40”; Amendment 0004 – “Responded to contractor questions 41-206, revised
SOW, Spec and drawings for Seed Project”; and Amendment 0006 – “Changed Schedule B unit
of issue from Lot to Project”); see also Tab 9 (Amendment 0001 (May 3, 2021)); Tab 10
(Amendment 0002 (May 25, 2021)); Tab 11 (Amendment 0003 (May 25, 2021)); Tab 12
(Amendment 0004 (May 27, 2021)); Tab 14 (Amendment 0006 (June 6, 2020)).

5
require during the contract period.” U.S. General Services Administration, “Indefinite Delivery,

Indefinite Quantity Contracts,” https://www.gsa.gov/buying-selling/new-to-gsa-acquisitions/how-

to-sell-to-the-government/indefinite-delivery-indefinite-quantity-contracts (last viewed June 27,

2022).

While Mini-MACC awardees would not know the Air Force’s precise construction needs

during the lifetime of the procurement, the Solicitation provided estimates for compensation. First,

each Mini-MACC contract’s value was estimated between $2,000 and $99,999,999 over the five-

year base period given by the Solicitation. Tab 8 at AR 320. Second, individual task orders under

the IDIQ would have a minimum value of $2,000 and a maximum value of $2,000,000 — “with

the majority expected to be less than $500,000.” Id. at AR 323, AR 395. Third, in addition to the

IDIQ contracts, the Solicitation also included an award for a seed project, FXSB 17-1110, Repair

BLDG. 5327 Exterior, JBER, AK, which had an estimated value of $500,000 to $1,000,000. Tab

8 at AR 320; Tab 9 at AR 694 (describing the seed project). As explained in more detail below,

consideration of the seed project award was evaluated concurrently with the IDIQ contract awards

and was used as a measure for evaluating Price for both. See infra Background Section I(B)(i).

A. Off-Ramp/On-Ramp Award Procedures

Although the Solicitation limited the number of initial Mini-MACC IDIQ contracts to “up

to four,” that pool of awardees could expand or contract if the Air Force triggered certain off-

ramp/on-ramp procedures. Tab 8 at AR 336-37. In conjunction with selecting “up to four” IDIQ

award winners, the Air Force created a “reserve vendor pool of up to ten (10) contractors” of

otherwise eligible offerors who were not chosen for one of the awards. Id. at AR 336. Those

reserve vendors “may be offered an opportunity, within the ordering period of this contract, to

receive an IDIQ award and be authorized to participate in task order[s].” Id. The Air Force could

6
“off-ramp” one of the four awardees for reasons such as “[c]onvenience of the Government,” and

it could “on-ramp” contractors from the reserve pool if “in the Government’s best interest.” Id.

In the event the agency chose to “on-ramp” bidders, it would “start[] at the highest ranked On-

Ramp contractor in the [reserve] pool.” Id. An “on-ramped” offeror would then “become an

additional Mini-MACC awardee.” Tab 8 at AR 337. The Air Force was not required to “off-

ramp” one of the four original awardees prior to “on-ramping” an offeror from the reserve vendor

pool. Id. at AR 336-37.

B. Basis of Evaluation

This procurement was a “best value” procurement conducted based on a “competitive

subjective tradeoff” of (1) Price and (2) Past Performance, with the latter “significantly more

important” than the former. Id. at AR 389. The Air Force only considered “offerors whose

proposals conform[ed] to all required terms and conditions, include[ed] all required

representations and certifications, [met] all requirements set forth in the RFP[,] and also provide[d]

the best value to the Government.” Id.

The Solicitation permitted the Air Force to award a contract to another offeror that did not

submit the lowest price “if the difference in the Past Performance Confidence Rating of another

offeror with [a] higher price justifie[d] the higher price premium.” Id. at AR 391. However, such

justification had to be based on “an integrated assessment best value award decision using the

[total evaluated price (TEP)] and the Past Performance Confidence Rating.” Id. At the final stage

of its analysis, “[o]nce selected awardees [had] been identified for the IDIQ, the Government . . .

rank[ed] each selected awardee by price from lowest to highest for the seed project (Attachment

J-4) and award[ed] the seed project to the lowest offeror.” Id. Accordingly, consideration for the

7
IDIQ awards and the seed project contract occurred concurrently. Id. The agency’s evaluation of

Price and Past Performance are explained below.

i. Factor 1: Price

Price was evaluated based on offerors’ proposed pricing for the seed project. Tab 8 at AR

389. Offerors submitted their Attachment J-4 Price Schedule, which was then used as the offeror’s

total evaluated price (TEP) for its bid. Id. While the Solicitation required the Air Force to

“evaluate the fairness and reasonableness of the Total Evaluated Price (TEP) for all offerors,” the

Air Force retained the discretion to choose its “price analysis technique[] and procedure[].” Id.

The Solicitation lists “examples” of such techniques:

(a) Price analysis: The process of examining and evaluating a proposed price without
evaluating its separate cost elements and proposed profit.
(b) Comparison of proposed prices received in response to the solicitation. Normally,
adequate price competition establishes price reasonableness.
(c) Comparison of previously proposed prices and previous Government contract prices
with current proposed prices for the same or similar effort.

Id. In addition to a price reasonableness analysis, the agency could — but was not required to —

conduct a price realism analysis to ensure that “the project [could] realistically be completed within

the proposed constraints.” Id. As a result of any price realism analysis, the Air Force would

disregard price proposals that it found “unrealistically low.” Id.

ii. Factor 2: Past Performance

Past Performance was evaluated to “assess the degree of confidence the Government ha[d]

in the offeror’s ability to meet the [S]olicitation requirements based on the offeror’s demonstrated

record of performance.” Tab 8 at AR 390. The Air Force could evaluate up to five past projects

submitted by an offeror. Id. at AR 379. In assessing Past Performance, the Air Force could “give

greater consideration to information on those contracts deemed most relevant to the effort

described in [the] [S]olicitation.” Id. at AR 391.

8
The Solicitation indicated that “[r]elevant past performance information for the five (5)

completed projects must demonstrate minimum design/build and build experience with multiple

disciplines.” Id. at AR 380. While “[n]ot all projects are required to have design/build or multiple-

discipline aspects,” the Solicitation noted that “this experience must be represented within the total

of submitted contracts/projects.” Id. at AR 380-81. The Solicitation listed applicable disciplinary

skills as follows:

(1) Demolition
(2) Painting
(3) Carpentry
(4) Mechanical/HVAC/Plumbing
(5) Fire Sprinkler/Fire Alarm Systems
(6) Electrical
(7) Structural
(8) Minimal Design as specified in Mini-MACC SOW 01000, para. 1.3
(9) Hazmat/Asbestos/Abatement
(10) Roofing/Insulation/Thermal & Moisture Control
(11) Civil work

Id. at AR 380.

1. Past Performance Documentation

Offerors were required to submit the following documentation along with each past project:

a (1) Past Performance Questionnaire, (2) Past Performance Questionnaire Cover Letter, (3) Past

Performance Supplement Worksheet, and (4) Past Performance Information Document. Tab 8 at

AR 379.

Past Performance Questionnaires (PPQs) and Cover Letter. PPQs, also referenced as

Attachment J-7 to the Solicitation, are completed by references who worked with the offeror on

one of its past projects. Id. at AR 379. The Solicitation “requires the offeror send out a PPQ to

each [reference] identified in the Past Performance Proposal.” Id. The PPQ contains fifteen

multiple choice questions in which the reference is asked to “answer all questions by checking

9
only one (1) response per question, [while placing] additional information . . . in the space

provided.” Tab 8 at AR 613-18. In addition to the fifteen multiple choice questions, the PPQ also

requests the reference indicate, inter alia, the project’s (i) “original” and “final” award amount,

(ii) status as “active” or “100% complete,” (iii) “completion date” or “expected completion date,”

and (iv) inclusion of the eleven disciplines (i.e., Demolition) listed in the Solicitation. Id. at AR

614; see supra p. 9. After completing the PPQ, the reference was required to email the PPQ

directly to Air Force personnel Donald Dougherty and John Jeffrey, along with a PPQ Cover

Letter, also referenced as Attachment J-6 to the Solicitation, indicating whether the reference

would recommend the offeror for the procurement. Tab 8 at AR 379.

Past Performance Supplement Worksheet. The Past Performance Supplement Worksheet,

also referenced as Attachment J-8 to the Solicitation, is a Microsoft Excel spreadsheet completed

by the offeror. The offeror must list its submitted projects (five maximum) indicating each past

project’s (i) “[p]eriod of [p]erformance,” (ii) “[p]rice,” and (iii) inclusion of any of the eleven

disciplines (i.e., Demolition) listed in the Solicitation. Id. at AR 619; see supra p. 9.

Past Performance Information Document. Offerors were required to provide a “[s]ummary

of each contract/project” that included the following:

(a) Company/Division name[,] (b) Contract/Project Title[,] (c) Contract/Project
Location[,] (d) Contracting Agency/Customer[,] (e) Contract Number[,] (f)
Contract Dollar Value[,] (g) Period of Performance[,] (h) Verified, up-to-date
name, mailing and e-mail addresses, and telephone number of the contracting
officer (Point-of-Contact)[,] (i) Comments regarding compliance with contract
terms and conditions (e.g. scope, cost and period of performance, labor and
statutory requirements)[,] (j) Descri[ption] [of] any known performance deemed
unacceptable by the customer, or not in accordance with the contract terms and
conditions [and] description of how it was resolved[,] (k) [S]ummary description
of the project scope of work [including] (i) rationale supporting your assertion of
relevance and identify aspects (scope, magnitude of effort, and complexity) of the
contracts deemed relevant and how they relate to the proposed effort [and] (ii)
[d]emonstration of performance of minimal design/build[,] [d]emonstration of
management of multiple discipline construction projects[,] [d]emonstration of

10
meeting project cost, quality standards and schedule, (l) Discussion of noteworthy
aspects and challenges[,] [and] (m) Pictures of projects may be included, if desired.

Id. at AR 379-80.

2. Past Performance Analysis

Based on the documentation provided by the offerors and their references, each of the five

submitted projects were assessed for “recency and relevancy.” Id. at AR 390. Those projects

deemed “Recent” and “Relevant” were then assessed for Quality. Id. The Solicitation defined

Recent projects as “those efforts completed for any customer(s) within the last three (3) years prior

to the issuance date of the [S]olicitation.” Id. The Solicitation noted that Relevant projects would

be “assessed based upon the extent to which past performance is of similar scope, magnitude and

complexity to the type of projects exemplified by the seed project for this [S]olicitation.” Id. The

Solicitation further noted that “[t]o be considered relevant, greater consideration [would] be given

to submitted contracts demonstrating work completed above the 60th parallel in a seismically

active area (e.g. Alaska).” Tab 8 at AR 380. Further, “[c]omplexity and scope [could] be

determined by viewing the previous contracts” based on the presence of the eleven disciplines

listed in the Solicitation. Id. at AR 381. The Solicitation provided the following Relevancy

adjectival ratings and accompanying definitions:

Rating: Very Relevant. Definition: Present/past performance involved essentially the same
scope and magnitude of effort and complexities this solicitation requires.

Rating: Relevant. Definition: Present/past performance effort involved similar scope and
magnitude of effort and complexities this solicitation requires.

Rating: Somewhat Relevant. Definition: Present/past performance effort involved some of
the scope and magnitude of effort and complexities this solicitation requires.

Rating: Not Relevant. Definition: Present/past performance effort involved little or none
of the scope and magnitude of effort and complexities this solicitation requires.

11
Id. at AR 390. The Solicitation warned that only those past projects deemed “[R]ecent, [R]elevant

and [S]omewhat [R]elevant” would assessed for Quality. Id. Accordingly, a “Not Recent” or “Not

Relevant” project would not receive further consideration for purposes of Past Performance

analysis. Id.

Quality was assessed “with a focus on quality control, timely performance, effectiveness

of management, and regulatory compliance.” Id. After the Air Force completed its (i) Recency,

(ii) Relevancy, and, if applicable, (iii) Quality assessment for up to five of an offeror’s submitted

projects, each offeror was then “assigned a single past performance confidence rating.” Tab 8 at

AR 391. The Past Performance confidence ratings and their accompanying definitions were as

follows:

Rating: SUBSTANTIAL CONFIDENCE. Description: Based on the offeror’s
recent/relevant performance record, the government has a high expectation that the offeror
will successfully perform the required effort.

Rating: SATISFACTORY CONFIDENCE. Description: Based on the offeror’s
recent/relevant performance record, the government has a reasonable expectation that the
offeror will successfully perform the required effort.

Rating: NEUTRAL CONFIDENCE. Description: No recent/relevant performance is
available or the offeror’s performance record is so sparse that no meaningful confidence
assessment rating can be reasonably assigned. The offeror may not be evaluated favorably
or unfavorably on the factor of past performance.

Rating: LIMITED CONFIDENCE. Description: Based on the offeror’s recent/relevant
performance record, the government has a low expectation that the offeror will successfully
perform the required effort.

Rating: NO CONFIDENCE. Description: Based on the offeror’s recent/relevant
performance record, the government has no expectation that the offeror will successfully
perform the required effort.

Id.

12
II. The Air Force’s Analysis and Award Decisions

The Air Force received thirteen timely proposals from the following entities: Ahtna Global,

LLC (Ahtna); AMES 1, LLC (Ames 1); Ancor, Inc. (Ancor); Eklutna Construction &

Maintenance, LLC (Eklutna); Frawner Corporation (Frawner); HPM, Inc. (HPM); Iyabak

Construction, LLC (Iyabak); Nodak Electric & Construction, Inc. (Nodak); Orion Construction,

Inc. (Orion); SD Construction, LLC (SD Construction); Tikigaq Federal Services, LLC (Tikigaq);

Tyonek Construction Services, LLC (Tyonek); and White Mountain Construction, LLC (White

Mountain Construction).10 See Tab 41 (Source Selection Evaluation Board Report (December 8,

2021)) at AR 2566. The Air Force’s review proceeded in two steps. First, its Source Selection

Evaluation Board (SSEB) issued a report recommending awardees based on analyses performed

by its “pricing and past performance evaluation teams.” Id. at AR 2565-66. Second, its Source

Selection Authority (SSA) reviewed the SSEB’s report and made the ultimate award decisions.

See Tab 44 (Source Selection Decision (December 20, 2021)) at AR 2704-11. Each entity’s

analysis and report is summarized in turn.

A. The Source Selection Evaluation Board (SSEB) Report

On December 8, 2021, the SSEB issued a report analyzing the offerors and detailing its

awardee recommendations to the SSA. Tab 41 at AR 2652. The SSEB’s analysis and award

recommendations are detailed below.

i. Factor 1: Price

In evaluating Price, the Air Force’s price evaluation team “reviewed each offeror’s

Attachment [J-]4 Price Schedule for the seed project to calculate each offeror’s [Total Evaluated

10
Defendant did not evaluate two additional offerors —
. Tab 41 at AR 2566-67. submitted its proposal late, and the
Air Force never received proposal. Id.

13
Price (TEP)].” Tab 41 at AR 2566. Based on its review, the price evaluation team determined

that it was unnecessary to conduct a price realism analysis for this procurement. Id. Next, in

assessing price reasonableness, the SSEB employed “the technique outlined in FAR 15.404-

1(b)(2)(i),” by comparing proposed prices received “to establish a fair and reasonable price.” Id.

The SSEB went a step further to “assist in a more thorough analysis of price” by calculating the

average of all TEPs and comparing each price “to the mean of all evaluated proposals.” Id. In its

documentation of each offeror’s Price assessment, the SSEB indicated each offeror’s (i) total

evaluated price, (ii) “[m]ean [p]riced [p]roposal,” (iii) “[d]ifference from [m]ean [p]riced

proposal” in dollars, and (iv) “[d]ifference from [m]ean [p]riced [p]roposal” by percentage. See,

e.g., Tab 41 at AR 2613.

The SSEB determined that price competition in this procurement — among thirteen bidders

— was a factor that ensured reasonable prices for the Air Force:

In this case, it is apparent that two or more responsible offerors, competing
independently, submitted priced offers that satisfy the Government’s expressed
requirement. Therefore, price competition can be used as the basis to establish a
fair and reasonable price.

Id. at AR 2568. However, the Air Force’s analysis did not end there. It noted an expectation of

price variation in the proposals because “in the Anchorage market individual project costs vary,

sometimes quite significantly, between offerors on competitive proposals.” Id. The SSEB

provided numerous reasons for the pricing disparity in Anchorage including: “some contractors

have their own workforce for certain disciplines, some own equipment for certain project types vs.

having to lease equipment, better relationships with limited sub-contractor marketplace, etc.” Id.

Finally, in reference to the two highest priced bids (Tyonek and Eklutna), the SSEB noted that

“although th[ese] offeror[s’] price[s] [are] substantially higher than other offerors that does not

mean [these] offer[s] [are] not fair and reasonable. [Instead,] their price is still considered [to] be

14
within a reasonable range given the extreme variability in prices seen in the past year.” Tab 41 at

AR 2582 (Eklutna), AR 2602 (Tyonek).

ii. Factor 2: Past Performance

The past performance evaluation team assessed Past Performance based on the required

documentation provided by offerors and their references as well as “information obtained [in

accordance with] FAR Part 42.1503(g), and . . . any other information independently obtained by

the Government.” Id. at AR 2566; see supra Background Section I(B)(ii)(1). While the

Solicitation did not specify how “scope, magnitude of effort, and complexity” would be evaluated,

the SSEB evaluated (i) “scope,” (ii) “magnitude,” and (iii) “complexity” separately as independent

sub-factors of Relevance, with each prong receiving its own adjectival sub-rating reflecting one of

the overall Relevance adjectival ratings. See Tab 41. The SSEB then applied the lowest of the

three adjectival sub-ratings as the overall Relevance rating for that project. Id. The SSEB

evaluated each Relevance sub-factor as follows:

Scope. The SSEB assessed “scope” by determining a past project’s inclusion of the eleven

disciplines stated in the Solicitation.11 See, e.g., Tab 41 at AR 2569; see also supra p. 9. Past

projects demonstrating three or more of the eleven disciplines received a “Very Relevant” “scope”

sub-rating. See generally Tab 41 (assigning a “Very Relevant” “scope” sub-rating for past projects

with three through eleven of eleven disciplines listed in the Solicitation). Past projects containing

fewer than three disciplines received lower “scope” sub-ratings. See, e.g., id. at AR 2593

(assigning project a “Relevant” “scope” sub-rating

where it demonstrated two of the eleven disciplines listed in the Solicitation).

11
While the Solicitation did not specify how its “multiple discipline[ary]” requirement could be
met, the SSEB analyzed those “disciplines” in its “scope” sub-factor analysis. See Tab 8 at AR
380-81.

15
Magnitude. In evaluating “magnitude,” the SSEB assessed whether a past project was

“representative of the task order values projected for the Mini-MACC.” See, e.g., id. at AR 2569.

In doing so, it assigned “Very Relevant” sub-ratings to past projects valued less than $2 million

and “Not Relevant” sub-ratings to past projects valued more than $2 million. Compare id. at AR

2646

with id. at AR 2644

. For example, “two (2)

[past] projects submitted [by Frawner] were [deemed] Not Relevant, [because] each exceeded the

[$2 million] maximum value of the task order under the Mini MACC, and the [S]olicitation stated

the maximum value of a task order under the Mini MACC is $2M.” Tab 41 at AR 2647.

Complexity. A past project’s “complexity” sub-rating hinged on whether it was performed

“above the 60th parallel in a seismically active area.” See, e.g., id. at AR 2644. The SSEB assigned

“Very Relevant” “complexity” sub-ratings to projects performed above the 60th parallel and in a

seismically active area. Id.

If a past project was performed below the 60th parallel

or was not in a seismically active area, it received a lower “complexity” sub-rating. See, e.g., id.

at AR 2622 (assigning “Relevant” “complexity” sub-rating to

project “performed in Glacier Bay, AK, which is below the 60th parallel and in a

seismically active area”).

In assessing Recency, the SSEB mistakenly noted that projects “completed within three (3)

years of the [S]olicitation date of April 30, 2021” were Recent. See, e.g., id. at AR 2568.

Defendant’s counsel noted at oral argument that Defendant believes this was a typographical error

16
in the SSEB’s report as the Solicitation was issued on May 3, 2021, not on April 30, 2021. Oral

Arg. Tr. at 55:9-14; see also AR 3291 (noting “DATE ISSUED 5/3/2021”).

Next, for past projects deemed Relevant and Recent, the SSEB assigned a “general

[Q]uality rating for each PPQ . . . based on the answers to the questions in the PPQ and narratives,

if provided.” Tab 41 at 2566; see also Tab 41 at AR 2580 (Ames 1’s F-35A Aircraft Maintenance

Unit Administrative Facility project not assessed for Quality after receiving a “Not Relevant”

Relevance rating). The SSEB’s Quality ratings included: “Exceptional,” “Very Good,” “Not

Received,” and “Not Rated.” See generally Tab 41. Neither the Solicitation nor the SSEB’s report

provide separate definitions for these ratings. Id.; see also Tab 8.

Finally, consistent with the definitions provided in the Solicitation, each offeror received

an overall Past Performance rating based on the SSEB’s confidence in the offeror’s ability “to

perform the work under this Mini-MACC program.” See, e.g., Tab 41 at AR 2647; see also Tab

8 at AR 391 (Past Performance confidence rating definitions). The SSEB assigned “Substantial

Confidence” ratings to those offerors “found to have performed work comparable to the scope,

magnitude, and complexity associated with Mini-MACC task orders, and based upon evaluation

of PPQs and CPARs [that] obtained Very Good to Exceptional [Quality] ratings.” Tab 41 at AR

2649.

iii. Tradeoff Analysis and Recommendation

After concluding its Price and Past Performance review, the SSEB ranked offerors based

on the “past performance confidence rating of the Offerors[’] ability to perform the work

anticipated under the Mini-MACC contract and by the TEP from lowest to highest within each

17
the lowest priced offers with [a] [S]ubstantial [C]onfidence [rating] are recommended for

award[s].” Id.

Rather, the SSEB conducted tradeoff analyses only for offerors receiving “Satisfactory

Confidence” or “Neutral Confidence” Past Performance ratings. See Tab 41 at AR 2649-51. Its

tradeoff analysis among those offerors was nearly identical — a lower priced bid did not outweigh

a higher rated Past Performance ranking. Id. For example, the SSEB determined that since

Frawner received a “ ” Past Performance rating and given the Solicitation

states that “Past Performance was significantly more important than [P]rice,” Frawner should not

receive one of the four Mini-MACC awards as its lower Price did not outweigh its Past

Performance rating. Tab 41 at AR 2649-50. Rather, the SSEB recommended that Frawner “be in

the on-ramp pool.” Id. at AR 2649. In sum, a bidder could not rise in ranking if it had a lower

Price, but a weaker “Substantial Confidence” Past Performance rating than another offeror.

After consideration of all timely proposals, the SSEB recommended the following offerors

receive the four Mini-MACC awards: (1) SD Construction, (2) Ancor, (3) Ames 1, and (4) Nodak.

Id. at AR 2652. It further recommended the following offerors as on-ramp contractors: (1) Orion,

(2) Tyonek, (3) Eklutna, (4) Ahtna, (5) Frawner, (6) Iyabak, (7) White Mountain, (8) HPM, and

(9) Tikigaq. Id.

B. SSA Report and Decision

In the second phase of the Air Force’s evaluation, the Source Selection Authority (SSA)

reviewed the SSEB’s report along with “all available documents pertaining to the acquisition,

including evaluation briefing slides, offeror proposals, consensus documentation, evaluation

reports, price information, and other documentation.” Tab 44 at AR 2704. The SSA then made

its award decisions on December 20, 2021, “after extensive review of the documentation and in

19
consultation with the Source Selection Evaluation Board (SSEB), and . . . advisors.” Id. at AR

2704, 2711. While it adopted many of the SSEB’s findings, the SSA’s conclusions differed from

the SSEB report in significant respects.

i. Factor 1: Price

In analyzing price reasonableness, the SSA adopted the SSEB’s conclusion of reasonable

prices given project costs in the Anchorage market “vary, sometimes quite significantly, between

offerors on competitive proposals.” Tab 41 at AR 2568. The SSA further determined that this

price variance, influenced by supply and labor factors, was exacerbated by the “recent COVID-

affected environment.” Id. The SSA also based its price reasonableness determination on

competition among award winners because “future [task orders] will be competed amongst all the

offerors and therefore no awardee with consistently high prices will ever receive any of those

competed [task orders].” Id.

ii. Factor 2: Past Performance

In analyzing Past Performance, the SSA accepted the SSEB’s Past Performance adjectival

ratings and sub-ratings but differed with the SSEB’s conclusion that offerors with the same overall

Past Performance rating necessarily provide the Air Force with the “essentially . . . equal value.”

Tab 44 at AR 2710 (“I have reviewed the SSEB Report and agree with the rationales documented

for the Confidence Ratings.”); Tab 41 at AR 2649. Instead, the SSA determined that “there are

past performance records that demonstrate that some offeror[s’] performance history warrants an

assessment of additional value amongst the other offers evaluated as ‘[S]ubstantial [C]onfidence.’”

Tab 44 at AR 2706.

20
iii. Tradeoff Analysis and Award Decision

The SSA came to a different award determination than recommended by the SSEB. On

December 20, 2021, the SSA awarded the IDIQ contracts to (1) SD Construction, (2) Tyonek, (3)

Eklutna, and (4) Orion — the “four Offerors with the highest number of Very Relevant efforts in

correlation with the highest number of Exceptional [Past Performance Questionnaires] and

[Contractor Performance Assessment Reporting Systems].” Id. at AR 2707. All four awardees

received “Substantial Confidence” ratings. Id. As the top placed offeror, SD Construction was

also awarded the seed project. Id.

The SSA stated that the “remaining nine (9) offerors that submitted timely proposal[s]”

would be on-ramp contractors in the following order: (1) Nodak, (2) Ancor, (3) Ames 1, (4)

Frawner, (5) Ahtna, (6) White Mountain, (7) Iyabak, (8) HPM, and (9) Tikigaq. Tab 44 at AR

2708-09. The on-ramp offerors are listed “in order of Confidence Rating[,] [and within a

Confidence Rating category based on] the number of projects found to be Exceptional and those

determined to be Very Good.” Id. at AR 2709.

The SSA concurred with the SSEB’s Price analysis using offerors’ total evaluated price

(TEP) for the seed project. Id. at AR 2706. However, the SSA noted that while TEPs are “useful

as a guide to give the Government an indication of how each offeror would price this specific

project, . . . it is not a reliable indicator of their prices for future requirements and is certainly not

an indication of their prices relative to other offerors for that future work.” Id. at AR 2707.

Accordingly, the SSA concluded that instead of relying only on Price in comparing offerors with

the same Past Performance rating, the Air Force had to consider “evidence of quality in recent and

relevant projects” (i.e., Quality ratings). Id.

21
Having determined that offerors with the same Past Performance rating are not necessarily

of the same value to the Government, the SSA disagreed with the SSEB’s decision to forgo a best

value tradeoff analysis for offerors receiving a “Substantial Confidence” rating. Id. at AR 2706.

Accordingly, the SSA performed a best value analysis for the four awardees. Id. at AR 2706-08.

Each is described in turn.

SD Construction. SD Construction’s Price was $933,000.00 with a “Substantial

Confidence” Past Performance rating. Id. at AR 2708. The SSA determined that SD Construction

“ha[d] the offer that is most beneficial to the Government and is [thus] the first awardee listed.”

Id. at AR 2707. Not only did SD Construction offer the lowest price at “33.6% below the mean

of all TEPs,” but it also had the “highest [Q]uality rating[s] of any offeror (tied with Tyonek).” Id.

Tyonek & Eklutna. Tyonek’s Price was $1,874,000.00, while Eklutna’s Price was

$1,995,080.00. Id. at AR 2708. Both bidders received “Substantial Confidence” Past Performance

ratings. Id. The SSA noted that Tyonek’s TEP was “33.9% above the mean of all TEPs and

100.9% higher than SD [Construction].” Id. at 2707. Eklutna had “the highest TEP of any offeror

and [was] 42.0% above the mean.” Id. Accordingly, the SSA reasoned that Tyonek and Eklutna

warranted the second and third awards, respectively, for the following reasons:

First, they have higher quality ratings than the offerors identified below as going
into the on-ramp pool. Second, any future [task orders] awarded under this Mini-
MACC IDIQ will be competed amongst all awardees which will prevent any
excessively high prices from being paid by the Government. Third, although these
two companies have the highest TEPs of all considered offerors their TEPs are not
outside the range of reason given the high variability in construction pricing and
methods in this region. Finally, the need for well-qualified contractors able to
provide quality work for the period of this Mini-MACC is worth more to the
Government than the risk represented by higher TEPs for the seed project,
especially when that seed project will be awarded to a different offeror.

Tab 44 at AR 2707-08.

22
Orion. For the fourth award, the SSA recognized that two offerors it considered — Orion

and Nodak — “are very closely matched” as (i) each received three “Exceptional” Quality ratings

and one “Very Good” Quality rating,

.” Id. at AR 2708.

Orion’s Price was $1,441,274.11, while Nodak’s Price was $ . Id. at AR 2708-09.

Both bidders received “Substantial Confidence” Past Performance ratings. Id.

, the SSA awarded the fourth contract to Orion because all four of its

rated projects received “Very Relevant” sub-ratings, whereas Nodak had three projects receiving

“Very Relevant” sub-ratings and one project receiving a “Relevant” sub-rating. Id. The SSA

further rationalized this tradeoff by referencing the Solicitation’s preference for Past Performance

over Price. Id. (“Since we stated that Past Performance is significantly more important than price

I conclude that Orion offers the best value to the Government, ,

based on the slightly higher quality demonstrated by the projects submitted for Past Performance

when relevancy is also considered.”).

***REMAINDER OF PAGE LEFT INTENTIONALLY BLANK***

23
The following chart summarizes the SSEB’s and SSA’s overall findings:

Bidder SSEB Ranking SSA Ultimate Factor #1: Factor #2: Past
Name Recommendation Ranking Price13 Performance14
SD 1 (Recommended 1 (Awardee $933,000.00 Substantial Confidence
Construction awardee) and seed Exceptional (4)
project Very Good (1)
awardee)
Tyonek 6 2 (Awardee) $1,874,000.00 Substantial Confidence
Exceptional (4)
Very Good (1)

Eklutna 7 3 (Awardee) $1,995,080.00 Substantial Confidence
Exceptional (3)
Very Good (2)

Orion 5 4 (Awardee) $1,441,274.11 Substantial Confidence
Exceptional (3)
Very Good (1)
Not Assessed (1)

Nodak 4 (Recommended 5 (On-Ramp) $ Substantial Confidence
awardee) Exceptional (3)
Very Good (1)
Not Considered (1)

Ancor 2 (Recommended 6 (On-Ramp) $ Substantial Confidence
awardee) Exceptional (2)
Very Good (2)

Ames 1 3 (Recommended 7 (On-Ramp) $ Substantial Confidence
awardee) Exceptional (1)
Very Good (2)
Not Received (1)
Not Assessed (1)

13
The prices referenced reflect each bidder’s total evaluated price.
14
Bidders’ overall Past Performance ratings are underlined in the chart with individual Quality
ratings listed below. A project received a “Not Assessed” rating if it was not assigned a Quality
rating, a “Not Considered” rating if it failed to meet the Solicitation’s technical requirements, and
a “Not Received” rating if a bidder failed to submit all requisite information for a past project. Tab
41 at AR 2566 (“Not Assessed”); Tab 41 at AR 2594, 2612, 2629, 2634 (“Not Considered”); Tab
41 at 2581, 2640 (“Not Received”).

24
Frawner 9 8 (On-Ramp) $
Exceptional (1)
Very Good (2)
Not Assessed (2)

Ahtna 8 9 (On-Ramp) $ Satisfactory Confidence
Global Exceptional (1)
Very Good (4)

White 11 10 (On-Ramp) $ Satisfactory Confidence
Mountain Exceptional (1)
Construction Not Assessed (3)
Not Considered (1)

Iyabak 10 11 (On-Ramp) $ Satisfactory Confidence
Very Good (2)
Not Assessed (2)
Not Received (1)

HPM Inc. 12 12 (On-Ramp) $ Neutral Confidence
Not Considered (3)

Tikigaq 13 13 (On-Ramp) $ Neutral Confidence
Federal Very Good (1)
Services Not Assessed (1)
Not Considered (3)

Tab 41; Tab 44.

III. Frawner Debriefing and Current Protest

On December 17, 2021, the Air Force notified Frawner that it was not selected for a Mini-

MACC award. Tab 43 (Pre-Award Notice to Unsuccessful Offeror (December 17, 2021)) at AR

2692-93. The Air Force issued a formal Post-Award Notification to Frawner on December 28,

2021. Tab 49 (Post-Award Notice of Unsuccessful Offeror (December 28, 2021)) at AR 2900-03.

While the Air Force informed Frawner that it was not selected for a Mini-MACC IDIQ award, the

Air Force also noted that Frawner would be placed in the on-ramp reserve vendor pool. Id.

Consistent with the Air Force’s debriefing protocols, Frawner submitted questions to the Air Force

on January 3, 2022, and the Air Force timely responded on January 5, 2022. Tab 61 (Post-

25
Debriefing Questions / Response - Frawner (January [5], 2022)) at AR 4347-49. Frawner filed the

current protest in the United States Court of Federal Claims on January 26, 2022. See Compl.

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)); see

5 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) (quotations

and citations omitted). As the United States Court of Appeals for the Federal Circuit has explained,

26
“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) (quotations and

citations omitted). Indeed, agency decisions are “entitled to a presumption of regularity.” Impresa

Contruzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1338 (Fed. Cir. 2001).

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

have received the contract award but for” the alleged error. Bannum, Inc. v. United States, 404

F.3d 1346, 1353 (Fed. Cir. 2005) (citations omitted). 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.

27
The Rules of the United States Court of Federal Claims 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. See Rule 52.1(c). In adjudicating cross motions under Rule 52.1, this court resolves

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

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

DISCUSSION

While it is not this Court’s role to “substitute its judgment for that of the agency,” it is

within this Court’s purview to determine whether an agency acted irrationally, violated U.S.

procurement law, or acted in conflict with the terms of the Solicitation. Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416-20 (1971); see Banknote Corp. of Am. v. United

States, 365 F.3d 1345, 1351-53 (Fed. Cir. 2004) (Banknote II). Plaintiff argues that relief is

appropriate because the Air Force allegedly (1) irrationally evaluated its Past Performance, and (2)

arbitrarily evaluated Price. See Plaintiff’s Memorandum in Support of Its MJAR (ECF No. 24-1)

(Pl.’s Mem.) at 22-42.15 Frawner seeks a permanent injunction barring the Air Force from

proceeding with the Mini-MACC awards to SD Construction, Eklutna, Tyonek, and Orion. Id. at

42-46; Compl. at 34. While the Court holds that the award to SD Construction was lawful, it finds

merit in Plaintiff’s arguments relative to the three other awardees. Accordingly, for the reasons

stated below, this Court enjoins the Air Force from awarding or proceeding with any award under

the Solicitation other than to SD Construction. Should Defendant opt to continue with Mini-

MACC awards under the Solicitation, other than to SD Construction, the Air Force shall undertake

15
Citations throughout this Memorandum and Order refer to the ECF-assigned page numbers,
which do not always correspond to the pagination within the document.

28
corrective action consistent with this Memorandum and Order and with this Court’s March 31,

2022 Order. See Order Granting in Part Plaintiff’s MJAR and Denying in Part Defendant’s Cross-

MJAR (ECF No. 33); see also infra Discussion Section III(D) (detailing scope of injunction).

I. Past Performance

Plaintiff first argues that the Air Force’s Past Performance evaluation was arbitrary and

capricious because it (1) relied on unstated evaluation criteria that failed to adhere to the

Solicitation’s terms, and (2) engaged in disparate treatment by applying the evaluation criteria

differently across bidders. See Pl.’s Mem. at 23-33. Defendant responds that it (1) only relied on

evaluation criteria laid out in the Solicitation and used its broad discretion in applying those criteria

to bids, and (2) did not engage in disparate treatment. See Defendant’s Response to Plaintiff’s

MJAR and Cross-Motion for Judgment on the Administrative Record (ECF No. 27) (Def.’s Cross-

MJAR) at 19-30. For the reasons discussed below, this Court holds that the Air Force arbitrarily

relied on unstated evaluation criteria but did not engage in disparate treatment. This Court further

holds that Plaintiff was prejudiced as a result of the Air Force’s erroneous Past Performance

evaluation.

A. The Air Force Arbitrarily Relied on Unstated Evaluation Criteria

Plaintiff contends that the Air Force’s Past Performance evaluation was arbitrary and

capricious because it relied on four “unstated criteria” absent from and directly in conflict with the

Solicitation. Pl.’s Mem. at 24-28. Specifically, Plaintiff contends that the unstated evaluation

criteria included: (1) assigning adjectival sub-ratings to Relevance sub-factors “scope, magnitude

of effort [(magnitude)], and complexity” and then automatically designating the lowest of those

three adjectival sub-ratings as a project’s overall Relevance rating;16 (2) applying an unstated $2

16
See Pl.’s Mem. at 24-25.

29
million cap for evaluating a project’s “magnitude” and rating all projects over $2 million as “Not

Relevant” for the “magnitude” sub-factor, thereby eliminating those projects from further

consideration;17 (3) assigning a “Very Relevant” “scope” sub-factor rating for all past projects of

an offeror that demonstrated at least three of the eleven disciplines listed in the Solicitation, making

no distinction amongst past projects demonstrating more than three disciplines;18 and (4) making

Quality, rather than Price, the deciding factor between bidders with the same Past Performance

confidence rating in violation of the Solicitation.19 Defendant responds that each alleged “unstated

factor” is either expressly identified in the Solicitation or is a reasonable application of the

agency’s broad discretion in considering Past Performance evaluations. Def.’s Cross-MJAR at

20-25. While the latter two of Plaintiff’s contentions fail, this Court finds merit in Plaintiff’s first

and second arguments. Each is addressed in turn.

i. Undisclosed Criteria Legal Standard

In soliciting bids from contractors, “agencies must evaluate proposals and make awards

based on the criteria stated in the solicitation” and “may not rely upon undisclosed evaluation

criteria in evaluating proposals.” Banknote Corp. of Am. v. United States, 56 Fed. Cl. 377, 386

(2003) (Banknote I) (citation omitted), aff’d, 365 F.3d 1345 (Fed. Cir. 2004); see also FAR 8.405-

3(b)(1)(ii)(C) (Agencies shall ensure that an “award is made in accordance with the basis for

selection in the RFQ.”); FAR 15.305(a) (“An agency shall evaluate competitive proposals and then

assess their relative qualities solely on the factors and subfactors specified in the solicitation.”);

17
See id. at 25-26.
18
See id. at 26-27.
19
See id. at 27-28.

30
Lab’y Corp. of Am. Holdings v. United States, 116 Fed. Cl. 643, 650 (2014) (holding agencies

“must evaluate offerors’ proposals based on the evaluation criteria stated in the solicitation”). This

rule ensures that offerors have an equal opportunity to fairly compete for the contract. To establish

that an agency’s departure from the solicitation’s criteria is arbitrary and capricious, a protester

must show that “(i) the procuring agency used a significantly different basis in evaluating the

proposals than was disclosed; and (ii) the protester was prejudiced as a result — that it had a

substantial chance to receive the contract award but for that error.” Banknote I, at 386-87.

Consistent with deference afforded to the agency under the APA, deference is also afforded

to an agency’s past performance evaluation. See Active Network, LLC v. United States, 130 Fed.

Cl. 421, 432 (2017), aff’d, 718 F. App’x 981 (Fed. Cir. 2018) (“When reviewing an evaluation of

past performance in a negotiated procurement, the Court affords an agency, ‘the greatest deference

possible.’”) (citation omitted); Westech Int’l, Inc. v. United States, 79 Fed. Cl. 272, 293 (2007)

(same) (citation omitted). While technical evaluations — such as assigning adjectival ratings —

involve “discretionary determinations . . . that a court will not second guess,” that discretion is not

without its limits. E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996). Technical

evaluations “must [still] be consistent with the factors and procedures outlined in the solicitation.”

Bluewater Mgmt. Grp., LLC v. United States, 150 Fed. Cl. 588, 614 (2020) (citation omitted); see

Banknote II, at 1351-53. Thus, “[i]f an agency’s evaluation of proposals differs significantly from

the process disclosed in the solicitation, the agency’s decision lacks a rational basis” and cannot

sustain a protest. See Bluewater Mgmt. Grp., 150 Fed. Cl. at 614 (citation omitted).

31
ii. Automatic Application of the Lowest of the Three Relevance Adjectival
Sub-Ratings as the Overall Relevance Rating Was Arbitrary and
Capricious as an Undisclosed Evaluation Criterion

First, Plaintiff contends that the Air Force (i) arbitrarily assigned an adjectival sub-rating

to the three Relevance sub-factors (scope, magnitude, and complexity) and then (ii) irrationally

automatically applied the lowest of those three sub-ratings as the overall Relevance rating. See

Pl.’s Mem. at 24-25. Plaintiff argues that in assessing offerors’ Past Performance in this manner,

the Air Force impermissibly applied unstated evaluation criteria that conflicted with the express

terms of the Solicitation. Id. For example, Frawner’s project

received an overall “Not Relevant” rating based on its “Not Relevant” “magnitude” sub-rating,

despite it receiving “Very Relevant” “scope” and “complexity” sub-ratings. Tab 41 (Source

Selection Evaluation Board Report (December 8, 2021)) at AR 2642-43.

Defendant responds that since the Relevance sub-factors are stated in the Solicitation, it

was within the Air Force’s discretion to determine how to assess the sub-factors. Def.’s Cross-

MJAR at 21-22. Thus, Defendant argues that the Air Force permissibly imposed a requirement

that all sub-factors meet a minimum relevancy sub-rating for the project as a whole to receive

further consideration. Id. While this Court agrees with Defendant that it was within the Air

Force’s discretion to assign adjectival sub-ratings to the Relevance sub-factors, this Court holds

that the agency unlawfully imposed unstated evaluation criteria, contrary to the Solicitation, in

automatically applying the lowest of three adjectival sub-ratings as the overall Relevance rating.

At the outset, this Court recognizes that the Air Force maintains significant discretion in

evaluating technical performance evaluations, such as this one. See E.W. Bliss Co., 77 F.3d at 449.

While the Air Force could not assign adjectival ratings that conflict with terms of the Solicitation,

it had the discretion to choose its method and rationale for determining appropriate ratings. See

32
Weston Sols., Inc. v. United States, 95 Fed. Cl. 311, 327 (2010), aff’d, 440 F. App’x 926 (Fed. Cir.

2011) (holding agency acted within its discretion in “not assign[ing] an adjectival rating to each

selection criterion” in determining overall adjectival rating). Thus, although the Solicitation did

not require the Air Force to assign adjectival sub-ratings to the Relevance sub-factors, the Air

Force was permitted to do so to streamline its evaluation process as neither the Solicitation nor

any FAR provision barred such a practice. See Tab 8 (Solicitation No. FA500021R0001 (May 3,

2021)) at AR 379-81. Further, as noted, Plaintiff points to no jurisprudence or FAR provision that

prohibits the agency from assigning adjectival sub-ratings. See Pl.’s Mem. at 23-25. As the

“proper inquiry is not whether the FAR authorizes” a specific practice, “but whether there is any

statutory or regulatory provision that precludes” the practice, this Court will not second-guess an

agency’s actions absent express authority prohibiting such practice. Tyler Const. Grp. v. United

States, 570 F.3d 1329, 1333 (Fed. Cir. 2009). Accordingly, it was within the Air Force’s discretion

to assign each Relevance sub-factor its own adjectival sub-rating to assist the contracting officer

in differentiating between the “scope,” “magnitude,” and “complexity” of the projects. Cf. Weston

Sols., 95 Fed. Cl. at 327.

However, the Air Force acted irrationally in automatically assigning the lowest of three

adjectival sub-ratings as the overall Relevance rating, as that procedure amounts to a “significantly

different basis in evaluating the proposals than was disclosed” and is contrary to the terms of the

Solicitation. Banknote I, at 386-87; see AM Gen., LLC v. United States, 115 Fed. Cl. 653, 672-74

(2014) (holding agency committed error where its evaluation of past performance was contrary to

solicitation criteria, though ultimately finding no prejudice). This Court will address the

application of this criterion in three steps. First, it will describe the Solicitation’s language

concerning Relevance. Second, it will analyze why the automatic application of the lowest of the

33
three adjectival sub-ratings as the overall Relevance rating amounts to an unstated evaluation

criterion. Third, this Court will illustrate that the application of this unstated evaluation criterion

cannot be squared with the Solicitation’s language.

1. Solicitation’s Relevance Definitions

Relevance is one of the two components of an offeror’s Past Performance rating. Tab 8 at

AR 390 (second requirement is Recency). The Solicitation plainly stated that a past project’s

overall Relevance would be assessed “based upon the extent to which past performance is of

similar scope, magnitude and complexity to the type of projects exemplified by the seed project

for this [S]olicitation.” Id. It further indicated that past projects receiving a “Not Relevant”

Relevance rating would be eliminated from further consideration under the Past Performance

evaluation. Id. (“Those records determined to be recent, somewhat relevant, relevant, or very

relevant will be assessed for quality.”). The Solicitation defined the four Relevance adjectival

ratings as follows:

Rating: Very Relevant. Definition: Present/past performance involved essentially the same
scope and magnitude of effort and complexities this solicitation requires.

Rating: Relevant. Definition: Present/past performance effort involved similar scope and
magnitude of effort and complexities this solicitation requires.

Rating: Somewhat Relevant. Definition: Present/past performance effort involved some of
the scope and magnitude of effort and complexities this solicitation requires.

Rating: Not Relevant. Definition: Present/past performance effort involved little or none
of the scope and magnitude of effort and complexities this solicitation requires.

Id. (emphasis added). The definitions were provided in decreasing degrees of relevancy with the

Solicitation expressly distinguishing between those past projects with “essentially the same”

(“Very Relevant”), “similar” (“Relevant”), “some of” (“Somewhat Relevant”), and “little or none”

(“Not Relevant”) of the applicable Relevance sub-factors. Id.

34
2. Automatic Application of the Lowest of the Three Relevance Sub-
Ratings as the Overall Relevance Rating Is an Unstated Evaluation
Criterion

There is no dispute that the automatic application of the lowest of the three adjectival sub-

ratings as the overall Relevance rating was not disclosed to bidders prior to the submission of

offers. See Pl.’s Mem. at 24-25; Def.’s Cross-MJAR at 21-22. Rather, Defendant argues that

because “scope,” “magnitude,” and “complexity” are Solicitation criteria, bidders were “on notice

that these three elements are required,” and that it was within the Air Force’s discretion to

“determine that a project is not relevant if it fails to satisfy all three stated factors.” Def.’s Cross-

MJAR at 22. While the Relevance sub-factors are listed in the Solicitation, and the Air Force has

significant discretion in assigning adjectival ratings, see supra pp. 32-33, the agency cannot apply

“a significantly different basis in evaluating the proposals than was disclosed.” Banknote I, at 386-

87. This Court holds that the automatic application of the lowest Relevance sub-factor as the

overall Relevance rating amounts to “a significantly different basis in evaluating the proposals

than was disclosed.” Id.

Here, bidders were not put “on notice” of the significant consequences of submitting

projects containing some, but not all, of the three Relevance sub-factors — namely, that such

projects would be eliminated from further consideration. See Lab’y Corp. of Am. Holdings, 116

Fed. Cl. at 650-51 (holding “number of FSS test types” amounted to an unstated evaluation

criterion neither stated in the RFQ nor in the Statement of Work Order where bidders were not on

notice that factor would become “the predominant differentiator” in selecting awardee); see, e.g.,

Tab 41 (Source Selection Evaluation Board Report (December 8, 2021)) at AR 2642-43. Indeed,

one would not know from the Solicitation whether a project could be eliminated for failure to

satisfy one of the sub-factors nor whether all sub-ratings would be averaged together. For example,

35
as described in Discussion Section I(A)(iii), this undisclosed criterion arbitrarily rendered projects

valued over $2 million as “Not Relevant,” even if they had relevant “scope” and “complexity”

sub-ratings. Thus, this significant criterion should have been disclosed prior to bidding so that

offerors would be fully on notice of the severe consequences for past project submissions that did

not contain all three sub-factors. Banknote I, at 386-87.

Defendant cites Tech. Innovation All. LLC v. United States, 149 Fed. Cl. 105 (2020), as

sole support for its contention that the Air Force acted within its discretion in removing any project

that did not satisfy a threshold of receiving at least a “Somewhat Relevant” rating for all three sub-

ratings. Def.’s Cross-MJAR at 22. Defendant contends that Tech Innovation All.’s recognition

that “determination[s] of whether a particular example of past performance is relevant involves an

exercise of discretion that lies particularly within the expertise of the procuring agency” supports

its claim that the Air Force had the discretion to implement a baseline for relevant projects. Def.’s

Cross-MJAR at 22; Tech. Innovation All., 149 Fed. Cl. at 138. While this Court agrees that the

Air Force could set a floor for what it deems a relevant project, it did not do so properly here as

that baseline cannot introduce “unstated evaluation criteria” that fails to put bidders on notice of

how they would be evaluated. 20 Banknote I, at 386-87; see AM Gen., 115 Fed. Cl. at 672-74.

Accordingly, this Court finds the application of this unstated evaluation criterion arbitrary and

capricious.

20
Further, unlike in Tech Innovation All., where the court’s analysis focused on whether the agency
rationally determined that plaintiff’s past projects were not of similar “scope, magnitude of effort,
and complexity,” here the Court is assessing the process used by the Air Force for evaluating
“scope, magnitude of effort, and complexity” rather than the underlying substantive findings,
where the agency is afforded greater discretion. Compare Tech. Innovation All., 149 Fed. Cl. at
139, with Pl.’s Mem. at 24-25.

36
3. The Unstated Criterion Conflicts with the Solicitation’s Language

Not only is the automatic application of the lowest of the three Relevance sub-ratings as

the overall Relevance rating an unstated evaluation criterion, it also directly conflicts with the

Solicitation — establishing another basis for finding it arbitrary and capricious. An agency’s

evaluation must be “consistent with the [other] factors and procedures outlined in the solicitation.”

Bluewater Mgmt. Grp., 150 Fed. Cl. at 614 (holding unreasonable agency’s failure to evaluate

whether bidder’s proposal satisfied solicitation’s requirement that “each proposed hotel provide

the required amenities”). Thus, agencies do not have discretion to directly contradict terms of a

solicitation. Banknote I, at 386-87; AM Gen., 115 Fed. Cl. at 672-74.

The Solicitation’s Relevance definitions directly contradict the Air Force’s decision to

automatically assign the lowest of three adjectival sub-ratings as the overall Relevance rating. For

each Relevance definition, the adjective preceding the sub-factor series (i.e., “same,” “similar,”

“some of,” and “little or none”) modifies each sub-factor. Tab 8 at AR 390. This is made apparent

by the use of “and” in between each of the sub-factors. Id. Thus, for example, a “Very Relevant”

project must have “essentially the same” “scope” and “complexity” and “magnitude” as the seed

project. Id. Based on this construction, the only projects that can be assigned an overall Relevance

rating consistent with the Relevance definitions are ones that received the same sub-rating for each

sub-factor (i.e., assigned a “Relevant” “scope” and “complexity” and “magnitude” sub-rating). If

even one sub-factor rating is different from other two, it becomes impossible for that project to

receive a Relevance rating consistent with the Solicitation’s definitions. For example, consider

Frawner’s project, which received a “Not Relevant”

“magnitude” sub-rating and a “Very Relevant” “scope” and “complexity” sub-rating. Tab 41 at

AR 2642-43. Under the Solicitation’s Relevance definitions, the agency could not assign this

37
project a “Very Relevant” rating because the project does not have “essentially the same . . .

magnitude,” and yet it also could not assign, as it did, a “Not Relevant” rating as the project does

not have “little or none of the . . . scope and complexity.” Tab 8 at AR 390. Thus, in applying this

reading of the Relevance definitions, only projects receiving the same sub-rating for each sub-

factor could receive a Relevance rating.

However, the Solicitation requires the agency to assign all projects — including those with

different sub-factor ratings — an overall Relevance rating. Id. at AR 390. The Solicitation states

that “each past performance record… will be assessed for recency and relevance.” Id. (emphases

added). “Will” is a mandatory term. New England Tank Indus. of New Hampshire, Inc. v. United

States, 861 F.2d 685, 694 (Fed. Cir. 1988) (explaining that terms such as “will” and “will not” are

mandatory). Thus, the Solicitation mandates that each past project receive an overall Relevance

adjectival rating as defined in the Solicitation, regardless of whether it received differing

Relevance sub-ratings. Tab 8 at AR 390. The Solicitation’s Relevance definitions fail to account

for those circumstances in which a project received different sub-ratings.21

This Court must therefore determine whether a different reading of the Solicitation enables

the agency to assign overall Relevance ratings to projects receiving differing sub-ratings. When

interpreting solicitations issued by the Government, “the principles governing interpretation of

Government contracts apply with equal force.” Banknote II, at 1353 n.4. A court must “consider

the solicitation as a whole, interpreting it in a manner that harmonizes and gives reasonable

meaning to all of its provisions.” AM Gen., LLC v. United States, 115 Fed. Cl. 653, 670 (2014)

21
The agency had another option for fixing the underinclusive Relevance definitions by amending
the Solicitation to include Relevance definitions that account for projects receiving different sub-
factor ratings. See FAR 15.206(c) (“Amendments issued after the established time and date for
receipt of proposals shall be issued to all offerors that have not been eliminated from the
competition.”). The Air Force opted not to pursue this option.

38
(quoting Banknote II, at 1353). Further, “an interpretation which gives a reasonable meaning to

all parts will be preferred to one which leaves a portion of it useless, inexplicable, inoperative,

void, insignificant, meaningless, superfluous, or achieves a weird and whimsical result.” Arizona

v. United States, 575 F.2d 855, 863 (Ct. Cl. 1978). As discussed above, a reading of the Solicitation

that only analyzes the Relevance definitions does not allow a project that receives different sub-

ratings to be given an overall Relevance rating. This reading necessarily cannot comport with the

Solicitation’s requirement that all projects be assigned a Relevance rating. Tab 8 at AR 390.

Therefore, an interpretation of the Solicitation that analyzes the Relevance definitions in a vacuum

necessarily leaves a part of the Solicitation “inoperative” or “meaningless” rendering such a

reading unreasonable. Banknote I, at 381 (holding in APA review a court is “limited to

determining whether the evaluation was reasonable, consistent with the stated evaluation criteria

and complied with relevant statutory and regulatory requirements”).

Rather, the only reasonable construction of these definitions is that all three sub-factors

must be considered together, as only that reading would permit the agency to assign each project

a Relevance rating the Solicitation requires. Banknote I, at 381. Under that reading, a project such

as Frawner’s Repair Network Operations Center project could receive at least a “Somewhat

Relevant” overall Relevance rating given it has “some of” the same Relevance sub-factors. Tab 8

at AR 390; Tab 41 at AR 2642-43; Banknote I, at 381.

In sum, as the Air Force’s automatic application of the lowest of three adjectival sub-ratings

as the overall Relevance rating is (i) an undisclosed criterion that was not previously disclosed to

bidders, and (ii) directly conflicts with the terms of the Solicitation, this evaluation scheme and its

Past Performance analysis related to Relevance lacked a rational basis. Id. at 386-87. Accordingly,

39
the automatic application of the lowest of three adjectival sub-ratings as the overall Relevance

rating is arbitrary and capricious.

iii. The $2 Million “Magnitude” Cap Was Arbitrary and Capricious as an
Undisclosed Evaluation Criterion

Second, Plaintiff argues that the Air Force arbitrarily imposed an unstated $2 million cap

by assigning a past project’s “magnitude” sub-factor as “Not Relevant” if it exceeded that

undisclosed cap. Pl.’s Mem. at 25-26. In practice, Plaintiff contends that an undisclosed $2 million

cap for past projects, together with a Relevance rating automatically assigned based on the lowest

of three adjectival sub-ratings, rendered past projects valued at over $2 million “Not Relevant” —

removing them entirely from further consideration even if they had strong “scope” and

“complexity” ratings. Id. For Frawner, this unstated $2 million cap meant the Air Force did not

assign a Quality rating for two of its projects —

and valued at $ and $ , respectively.

See Tab 41 at AR 2643-44.

Defendant does not dispute, nor could it, that a $2 million cap for “magnitude” is absent

from the Solicitation. Def.’s Cross-MJAR at 22-23. Rather, it contends that the Air Force had the

discretion to choose how it evaluated “magnitude,” a stated sub-factor in the Solicitation. Id. at

23. Defendant maintains that it applied that discretion reasonably in finding “a past performance

project exceeding the maximum value [for a project] under the solicitation [(i.e., $2 million)] is

not relevant on the basis of magnitude.”22 Id. Specifically with respect to Plaintiff, Defendant

22
While Defendant’s Cross-MJAR acknowledges that the Air Force applied a $2 million cap for
evaluating projects’ “magnitude” sub-ratings for Relevancy, at oral argument Defendant
maintained that no $2 million “bright line rule” existed. Compare Def.’s Cross-MJAR at 18 (“It
thus falls within the Air Force’s discretion that a past performance project exceeding the maximum
value under the solicitation [(i.e., $2 million)] is not relevant on the basis of magnitude.”), with

40
argues that it was within the Air Force’s discretion to find two of Frawner’s past projects valued

at over $2 million “Not Relevant” for “magnitude” because (1) a majority of projects under the

Solicitation were expected to be valued at less than $500,000,23 (2) the seed project had an

estimated value between $500,000 and $1 million,24 and (3) the maximum task order under the

Solicitation was $2 million.25 Def.’s Cross-MJAR at 22-23. This Court is unpersuaded by

Tr. Oral Arg. at 45:19 (stating on behalf of Defendant that “[t]here’s no $2 million cap”), 51:18-
23 (“THE COURT: So it’s not a hard cap? The 2 million is not a hard cap. [DEFENDANT’S
COUNSEL]: It’s not a rule that anyone said. This is what the past performance evaluation team
decided on how to implement, how to, you know, apply this factor or this subfactor.”). Rather,
Defendant argued that an analysis was undertaken by the agency to determine if the project’s price
was close enough to the Solicitation’s $2 million maximum task order value. Tr. Oral Arg. at
45:19.

After review of the Administrative Record, the Court is skeptical of Defendant’s shift in position
and argument that the Air Force did not impose a $2 million cap in analyzing the “magnitude” sub-
factor. For example, at a first glance, Orion’s
project exceeded the cap as its final contract value was $ over $2 million.
Tab 36 at AR 2256 (noting on PPQ, project’s final “[a]ward [a]mount” of $ ).
However, the SSEB viewed the project’s initial value as under $2 million and proceeded to assign
the project a Quality rating — supporting the likelihood of a $2 million cap. See Tab 41 at AR
2617-18. Further, the SSEB’s rationale for eliminating two of Frawner’s projects expressly
invoked a $2 million cap. Tab 41 at AR 2647 (assigning two of Frawner’s projects “Not Relevant”
ratings because “each exceeded the maximum value of the task order under the Mini MACC, and
the solicitation stated the maximum value of a task order under the Mini MACC is $2M”).

However, even if Defendant was not applying a $2 million cap and was instead analyzing whether
a project over $2 million in value was nonetheless close enough to $2 million to be considered
relevant, that procedure would still amount to an unstated evaluation criterion as the agency would
be implementing a binary pass/fail test with projects valued under or close to $2 million receiving
“Very Relevant” “magnitude” sub-rating and those projects valued at some amount just over $2
million receiving “Not Relevant” “magnitude” sub-rating. For the reasons further described
below, such a ratings procedure is arbitrary and capricious for the same reasons the $2 million cap
itself is arbitrary and capricious — it is an unstated criterion that needed to be disclosed to offerors.
23
Tab 8 at AR 395.
24
Tab 9 (Amendment 0001 (May 3, 2021)) at AR 694.
25
Tab 8 at AR 323.

41
Defendant’s arguments and holds that the agency’s undisclosed $2 million cap on past project

submissions and its impact on the entire ratings procedure is arbitrary and capricious.

While the Air Force is entitled to a significant deference in evaluating “magnitude,” a stated

Solicitation sub-factor, the agency’s “technical evaluations must [still] be consistent with the

factors and procedures outlined in the [S]olicitation.” Lab’y Corp. of Am. Holdings, 116 Fed. Cl.

at 650. Thus, “[i]f an agency’s evaluation of proposals differs significantly from the process

disclosed in the solicitation” or fails to put offerors “on notice” of how they will be evaluated, the

agency’s decision lacks a rational basis. Id.; see Banknote I, at 382 (citation omitted).

The Air Force failed to put bidders “on notice” of the serious consequences of failing to

meet an unstated $2 million cap requirement, which would render an entire past project’s

submission as “Not Relevant” for purposes of the Past Performance analysis. See, e.g., Tab 41 at

AR 2642-45. Namely, projects valued at over $2 million would receive a “Not Relevant”

“magnitude” sub-rating and this, together with the automatic assignment of the lowest of the three

adjectival Relevance sub-ratings as the overall Relevance rating, would render the entire past

project submission as “Not Relevant.” Id. Due to their overall “Not Relevant” rating, these

projects were then entirely removed from further consideration for purposes of a Past Performance

evaluation. See id. (removing from further consideration two of Frawner’s projects valued at over

$2 million “[d]ue to past performance determination of Not Relevant”); see also Tab 8 at AR 390

(no Quality rating assigned to projects deemed “Not Relevant”).

While the $2 million maximum task order under the Solicitation may have put bidders “on

notice” that past projects valued at over $2 million might be rated as less relevant than those valued

under $2 million, the Solicitation did not put bidders “on notice” that such past projects exceeding

$2 million would be entirely eliminated from further consideration. Presumably, if Plaintiff had

42
known about a $2 million cap, it would not have submitted two projects valued at over $2 million,

especially given the Solicitation’s five past project submission limit. See id. at AR 2642-44.

Frawner would have had the knowledge and choice to have submitted different projects that met

the agency’s desired requirements, including this unstated criterion. See id.

The arbitrariness of the $2 million cap is further highlighted in two respects. First, the Air

Force failed to differentiate the “magnitude” sub-ratings it assigned projects valued under $2

million. All past projects bidders submitted for consideration valued under $2 million received

“Very Relevant” “magnitude” sub-ratings. See, e.g., id. at AR 2570-71, 2617-18. For example,

SD Construction’s project, valued at

$ , received the same “Very Relevant” “magnitude” sub-rating, id. at AR 2570-71, as Orion

Construction’s project valued about

136 times as much at $ . Id. at AR 2617-18. The large gap in value between these

projects, despite both receiving the same “magnitude” sub-rating, reflects the Air Force’s

application of a binary pass/fail approach in which projects valued below $2 million received

“Very Relevant” “magnitude” sub-ratings, while a project valued even a little bit above $2 million

received a “Not Relevant” “magnitude” sub-rating. Since a project’s consideration hinged entirely

on whether it was valued above or below $2 million, the Air Force was required to disclose this

“unstated evaluation criteri[on]” to offerors prior to bid submission. Banknote I, at 386-87.

Second, the Air Force failed to give weight to whether a project was in the seed project’s

range of the $500,000 to $1 million, despite the Solicitation’s indication otherwise. See Tab 9 at

AR 694. While the Solicitation made clear that a majority of projects awarded under the Mini-

MACC were expected to be valued at less than $500,000, Tab 8 at AR 395, the Solicitation also

indicated that Relevance would be assessed “based upon the extent to which past performance is

43
of similar scope, magnitude and complexity to the type of projects exemplified by the seed project

for this [S]olicitation.” Id. at AR at 390 (emphasis added). Given the Solicitation’s use of the seed

project as a basis for comparing the Relevance of past performance, it was irrational for the Air

Force to completely ignore the seed project price in differentiating between past projects valued

within the seed project range and those valued below it. Yet, the agency did just that when it

equally rated a project within the seed range as ones outside it. Compare Tab 41 at AR 2646

(assigning Frawner’s project valued at $ with “magnitude” sub-rating of “Very Relevant”),

with id. at AR 2586 (assigning Eklutna’s project valued at $ with “magnitude” sub-rating

of “Very Relevant”). As a project’s “magnitude” evaluation was based solely on whether its value

exceeded $2 million and projects were eliminated from further consideration if they exceeded the

cap, it was arbitrary and capricious for the agency not to disclose this evaluation criterion to

offerors in the Solicitation prior to accepting bids. Banknote I, at 386-87.

iv. The Air Force Rationally Assigned “Very Relevant” “Scope” Sub-Ratings
for Projects with at Least Three Disciplines

Third, Plaintiff argues that the Air Force’s “scope” analysis was unreasonable because it

assigned a “Very Relevant” “scope” sub-rating to any past project demonstrating at least three of

the eleven disciplines listed in the Solicitation. Pl.’s Mem. at 26-27. Plaintiff contends that the

agency set the bar “so low” as to be at odds with the Solicitation’s “express preference for multi-

discipline experience across submitted projects” resulting in most projects receiving a “Very

Relevant” “scope” sub-rating, with no distinctions made between projects with three to eleven

disciplines. Id. Defendant responds that the Air Force acted within its broad discretion in using

three disciplines to discriminate between “scope” sub-ratings. Def.’s Cross-MJAR at 21-22. This

Court agrees with Defendant.

44
While Plaintiff correctly notes that the Solicitation requires successful bidders to have

experience in multi-disciplines, the Solicitation is silent on what constitutes “multi-disciplinary”

experience. Tab 8 at AR 380 (“Relevant past performance information for the five (5) completed

projects must demonstrate minimum design/build and build experience with multiple disciplines

(as stated above).”). The Solicitation’s silence grants the agency discretion to consider what

amounts to “multi-disciplinary” experience as long as it does so rationally. Banknote II, at 1355-

56 (holding an agency rationally “weigh[ed] technical and price factors equally” where, inter alia,

the solicitation was silent on the interplay between the factors). As explained below, the Air

Force’s “scope” analysis was rational.

It is not this Court’s role to decide whether three disciplines rather than four, five, six, or

seven should serve as the discriminator between projects receiving a “scope” sub-rating of “Very

Relevant” versus “Relevant.” This determination – one based on expertise and judgment – is

exactly the type of technical decision this Court is required by law to leave to the discretion of the

agency. E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (holding court will not

“second guess” agency’s “technical ratings” which “deal with the minutiae of the procurement

process”). Further, in negotiated procurements such as this one, “[p]rocurement officials . . . enjoy

a greater degree of discretion in determining which proposal is most beneficial to the

Government.” E.W. Bliss Co. v. United States, 33 Fed. Cl. 123, 141 (1995), aff’d, 77 F.3d 445

(Fed. Cir. 1996). This Court will not “second guess” the Air Force’s judgment here, based on its

experience, that the presence of three disciplines satisfies its need for multi-discipline experience.

E.W. Bliss Co., 77 F.3d at 449.

Unlike the evaluation of “magnitude,” where bidders were not put “on notice” that their

submissions must be valued under $2 million to be considered, see supra Discussion Section

45
I(A)(iii), for “scope” evaluations, bidders were clearly “on notice” of the need to submit past

projects that demonstrated some or all of the eleven disciplines listed in the Solicitation. Tab 8 at

AR 380; Banknote I, at 382-87 (“[I]t is well-settled that a solicitation need not identify each

element to be considered by the agency during the course of the evaluation where such element is

intrinsic to the stated factors.”) (citation and internal quotations omitted). Indeed, this notice is

unlike the “magnitude” context. There, for example, the Air Force failed to distinguish among

projects valued at less than $2 million, creating an undisclosed, binary pass/fail test, see supra

Discussion Section I(A)(iii). Here, the “scope” analysis did not involve a binary pass/fail test;

projects were still given adjectival ratings and allowed to continue in the evaluation process.

Further, in its evaluation of “scope,” the Air Force differentiated between projects with two versus

three disciplines by rating projects with two disciplines “Relevant” and three disciplines “Very

Relevant,” reflecting application of a spectrum of possible Relevancy “scope” ratings. See, e.g.,

Tab 41 at AR 2593 (awarding a “Relevant” “scope” sub-rating for project containing two

of the disciplines); Tab 41 at AR 2646 (awarding a “Relevant” “scope” sub-rating for

project containing two of the disciplines). Finally, Plaintiff cannot point to a law violated by the

Air Force’s use of discretion in this manner and the Court can find none. Accordingly, this Court

holds that the Air Force acted reasonably in conducting its “scope” sub-factor analysis.

v. The Air Force Rationally Looked Beyond the Past Performance Adjectival
Ratings in Analyzing Quality Ratings Before Comparing Past
Performance to Price

Finally, Plaintiff argues that the Air Force abused its discretion in making Quality, rather

than Price, the deciding factor between bidders with the same Past Performance confidence rating,

purportedly in contravention of the Solicitation’s requirements. Pl.’s Mem at 27-28. Plaintiff

notes that while the SSEB analyzed competing bids in accordance with the Solicitation by making

46
Price the determining factor, the SSA wrongfully declined to adopt that analysis. Id. Defendant

responds that it was within the SSA’s “discretion to consider the quality of the past performance

projects” given Quality is a sub-factor of the overall Past Performance assessment. Def.’s Cross-

MJAR at 24. Again, this Court agrees with Defendant.

The Solicitation indicates that if the Government awards the contract to a bidder other than

one with the lowest price, “the Source Selection Authority will make an integrated assessment best

value award decision using the price and the Past Performance Confidence Rating.” Tab 8 at AR

389 (emphasis added). Here, the Air Force awarded three of the four contracts to bidders that did

not bid the lowest price; therefore, the Air Force was required to conduct a best value tradeoff.26

Id.; see also Tab 41 at AR 2566 (second place contract awardee Tyonek Construction price of

$1,874,000.00) (third place contract awardee Eklutna Construction price of $1,995,080.00) (fourth

place contract awardee Orion Construction price of $1,441,274.11); Tab 8 at AR 391 (requiring

best value tradeoff analysis if agency awarded to bidders other than lowest priced).

Plaintiff rightly acknowledges that the agency could consider Quality, as Quality is

expressly identified in the Solicitation’s Past Performance evaluation criteria. Pl.’s Mem. at 27-

28. Plaintiff’s argument instead centers on when the Air Force could consider Quality. Id.

(“[O]nce the Agency determined that offerors were assigned the same adjectival Past Performance

confidence rating, it should have considered Price as the discriminator.”); Tab 8 at AR 390 (“Those

records determined to be recent, somewhat relevant, relevant, or very relevant will be assessed for

quality.”). Plaintiff contends that the Air Force first had to evaluate Quality for each relevant

26
In fact, the Air Force awarded two of the four contracts to the highest priced bidders. See Tab
41 at AR 2566 (second place contract awardee Tyonek Construction price of $1,874,000.00) (third
place contract awardee Eklunta Construction price of $1,995,080.00). The sufficiency of the Air
Force’s best value tradeoff analysis is discussed below. See infra Discussions Section II (B) and
(C).

47
project, second assess an overall Past Performance confidence rating, and third use only Price as

the differentiator between bidders with the same Past Performance ratings. Pl.’s Mem at 27-28;

Plaintiff’s Reply in Support of Its MJAR (ECF No. 28) (Pl.’s Reply) at 10. This Court disagrees.

While the Solicitation clearly indicated that a Quality analysis would occur before Price

enters the equation, Plaintiff’s argument fails to account for an agency’s duty to look beyond

adjectival ratings in making value judgments. See Tab 8 at AR 389-90; see also Glenn Def. Marine

(ASIA), PTE Ltd. v. United States, 720 F.3d 901, 909 (Fed. Cir. 2013) (finding rational an agency’s

decision to consider sub-factor ratings and narrative comments, rather than just considering overall

ratings); Femme Comp Inc. v. United States, 83 Fed. Cl. 704, 758 (2008) (“Looking beyond the

adjectival ratings is necessary because proposals with the same adjectival rating are not necessarily

of equal quality.”) (internal quotations and citation omitted). The agency’s ability to look beyond

the overall Past Performance adjectival ratings ensures that the agency can “determine which

proposal represents the best value for the government.” E.W. Bliss Co., 77 F.3d at 449. As the

agency was allowed to look beyond overall Past Performance in its best value analysis, and because

Quality could be an important factor on its own, the Air Force was permitted to use Quality ratings

when comparing offerors with identical Past Performance ratings. See Tab 8 at AR 389-90.

Plaintiff presents no authority that bars the Air Force from looking past the Past Performance

adjectival rating, and, as discussed, relevant authority dictates that the agency should look past

those ratings. See Pl.’s Mem. at 27-28. Accordingly, the Air Force acted rationally in looking

beneath the veil of the overall Past Performance ratings to Quality sub-ratings before making a

comparison with Price.27

27
The sufficiency of the Air Force’s Price analysis is discussed infra at Discussion Section II (A)
and (B).

48
B. The Air Force Did Not Engage in Disparate Treatment

Plaintiff next contends that the Air Force engaged in inappropriate disparate treatment

concerning its Past Performance evaluation by unreasonably evaluating its past project

submissions differently than other bidders’ submissions. Pl.’s Mem. at 28-31. Specifically,

Plaintiff points to five instances of alleged disparate treatment: (1) assigning two of Frawner’s

projects “Very Good” ratings while assigning “Exceptional” ratings to a project from Orion and a

project from SD Construction with “identical” Past Performance Questionnaire (PPQ) responses,28

(2) rating one of Orion’s projects as “Recent” despite its alleged completion after the Solicitation’s

issuance,29 (3) relaxing the $2 million “magnitude” cap by rating one of Orion’s projects whose

final contract value exceeded $2 million as “Very Relevant,”30 (4) accepting a project submission

from Tyonek despite Tyonek’s failure to use a required PPQ form,31 and (5) crediting one of

Tyonek’s projects with demonstrating a “Demolition” discipline despite that the discipline was not

listed on its PPQ, while failing to credit one of Frawner’s projects with demonstrating a “Minimal

Design” discipline, which was indicated on its PPQ.32 None of these occurrences reach the

threshold Plaintiff must meet to establish disparate treatment.

To prevail in a disparate impact claim, a protestor must establish either (i) “that the agency

unreasonably downgraded its proposal for deficiencies that were ‘substantively indistinguishable’

or nearly identical from those contained in other proposals,” or (ii) “that the agency inconsistently

28
See Pl.’s Mem. at 28-29.
29
See id. at 29.
30
See id. at 29-30.
31
See id. at 30.
32
See id. at 30-31.

49
applied objective solicitation requirements between it and other offerors, such as proposal page

limits, formatting requirements, or submission deadlines.” Office Design Grp. v. United States,

951 F.3d 1366, 1372 (Fed. Cir. 2020) (emphasis added) (citation omitted). FAR 1.102-2(c)(3)

highlights the demanding standard for establishing disparate treatment by stating that while “[a]ll

contractors and prospective contractors shall be treated fairly and impartially[,] [they] need not be

treated the same.” Thus, as recognized by Office Design Group’s “substantively

indistinguishable” standard, a plaintiff must establish more than just varying treatment to meet its

burden of showing disparate treatment. Office Design Grp., 951 F.3d at 1372. Plaintiff fails to do

so here.

First, Plaintiff argues that two of Frawner’s projects (

) should have received the same “Exceptional” Quality ratings as Orion’s

project and SD Construction’s project

due to their allegedly “identical” favorable ratings on their respective PPQs. Pl.’s Mem. at 28-29.

Instead, both of Frawner’s past projects received “Very Good” Quality ratings, while Orion’s and

SD Construction’s past projects received “Exceptional” Quality ratings. See Tab 41 at AR 2574

(SD Construction’s project rating), 2619 (Orion’s project rating), 2647 (Frawner’s projects’

ratings). Plaintiff’s claim is factually flawed. Both of Frawner’s projects received the most

favorable ratings for twelve out of fifteen PPQ questions, whereas SD Construction’s project

received the most favorable ratings for fourteen out of fifteen PPQ questions. See Tab 32 (Frawner

Past Performance) at AR 1926-30 (Frawner’s Camp Carrol project PPQ), 1950-54 (Frawner’s

Steam Heating System project PPQ); Tab 37 ([SD Construction’s] Past Performance

Questionnaires) at AR 2327-31 (SD Construction’s FSS Warehouse project PPQ). While Orion’s

project — like Frawner’s — also received the most favorable ratings for twelve out of fifteen PPQ

50
questions, the Air Force rationally could have credited it with thirteen favorable ratings instead

because the reference mistakenly assigned Orion the lowest score in response to a question that

did not apply to Orion. See Tab 36 (Orion Past Performance) at AR 2253 (noting in the comments

section of the PPQ that “THERE WERE NO CHANGE PROPOSALS” in response to question:

“Did the contractor submit reasonably priced change proposals?”). As Frawner does not have a

similar project that was mistakenly rated lower than it should have been due to the inclusion on an

inapplicable question, Plaintiff cannot establish that the Air Force treated “substantively

indistinguishable” projects differently. Office Design Grp., 951 F.3d at 1372. Accordingly, this

claim fails to establish disparate treatment. Id.

Second, Plaintiff argues that the Air Force erroneously rated as “Recent” Orion’s

project despite the project’s expected completion date

of June 15, 2021, which was past the Solicitation’s time limit for Recent past projects. Pl.’s Mem.

at 29 (citing Tab 41 at AR 2615). Specifically, Plaintiff contends that the project could not be

rated as Recent because the Solicitation defined Recent as “those efforts completed for any

customer(s) within the last three (3) years prior to the issuance date of the [S]olicitation,” which

Plaintiff maintains is April 30, 2021. Id.; Tab 8 at AR 390. Plaintiff, again, bases its claim on

factually inaccurate information — this time likely due to a clerical error by the SSEB. The SSEB

noted that Recent projects are ones “completed within three (3) years of the [S]olicitation date of

April 30, 2021.”33 See, e.g., Tab 41 at AR 2614. However, the Solicitation was issued on May 3,

2021, not on April 30, 2021. Tab 9 at AR 621 (noting “DATE ISSUED 5/3/2021”). While one of

33
During oral argument, counsel for Defendant acknowledged the SSEB’s likely typographical
error in its report and verified that May 3, 2021 is the Solicitation’s issuance date. Oral Arg. Tr.
at 55:9-14 (“I verified with the contracting officer, the effective date is May 3rd . . . I don’t know
if it’s a typo in the board’s report or, you know, they were just using --I mean, it’s just a few days
off.”).

51
Orion’s references indicated in a PPQ that the project was only expected to be completed

by June 15, 2021 (after the Solicitation issuance date), the Air Force rationally determined that the

project would be “completed” by May 3, 2021, as Orion listed the project’s period of performance

as lasting from July 2019 to May 2021 on its Past Performance Information Document. Tab 23

(Transmittal Email – Orion Construction, Inc. (June 14, 2021)) at AR 1304 (Orion’s Past

Performance Quality Satisfaction Ratings of Contract); Tab 36 at AR 2239 (Orion’s PPQ for

project). Accordingly, Orion’s past project fell within the range of Recent past projects eligible

for consideration under the Past Performance factors. Thus, Plaintiff has failed to establish that

the Air Force “inconsistently applied objective solicitation requirements” in this instance. Office

Design Grp., 951 F.3d at 1372.

Third, Plaintiff argues that the Air Force impermissibly relaxed its $2 million “magnitude”

cap for one of Orion’s projects. Pl.’s Mem. at 29-30. Plaintiff’s contention is insufficient to

establish disparate treatment. As previously noted, Orion’s Alaska Regional Fire Training Center

Building Rehabilitation project was initially valued at $ , with a final contract value

of $ . Tab 36 at AR 2256. The Air Force awarded the project a “Very Relevant”

magnitude sub-rating. Tab 41 at AR 2618. While the imposition of a $2 million cap itself is

arbitrary and capricious, see supra Discussion Section I(A)(iii), Plaintiff fails to establish that there

was another “substantively indistinguishable” project, as is required for establishing disparate

treatment, that, like the Alaska Regional project, was initially valued at less than $2 million and

was not rated as “Very Relevant” for “magnitude.” Office Design Grp., 951 F.3d at 1372; see also

supra n.22; Tr. Oral Arg. at 49:15-50:9. Further, even if the agency used Orion’s

project’s final contract value in assigning its

“magnitude” sub-rating, Plaintiff still cannot establish disparate treatment. Unlike Orion’s project,

52
whose final value was less than $ above the cap, the next closest project over $2 million

among all bidders was over fifty-times that amount ($ over $2 million) and Frawner’s

closest project over $2 million was over one-hundred times that amount ($ over $2

million). Tab 41 at AR 2632; Tab 41 at AR 2644. Accordingly, the Air Force did not engage in

disparate treatment by rating a project with an initial value of under $2 million, that later rose to

$ over $2 million in its final value, as “Very Relevant” for “magnitude.” Office Design

Grp., 951 F.3d at 1372.

Fourth, Plaintiff argues that the Air Force engaged in disparate treatment by accepting a

different PPQ form than provided by the Solicitation for Tyonek’s

project. Pl.’s Mem. at 30. Plaintiff contends that the Air Force was required to reject

Tyonek’s PPQ for that past project. Id. Additionally, Plaintiff asserts that the Air Force could not

assess that past project for Quality since the Solicitation indicated that “[o]nly required documents

will be accepted.” Id. (quoting Tab 8 at AR 383). These arguments are unavailing. As Plaintiff

acknowledges, the PPQ submitted on behalf of Tyonek is “similar to the RFP Attachment J-7,”

which is the PPQ for use in this procurement. Id. In fact, it is nearly identical except for a list of

applicable disciplines. Compare Tab 39 (Tyonek Past Performance Questionnaires) at AR 2390-

95 (containing same elements as J-7 form except for a list of disciplines), with Tab 8 at AR 613-

18 (Attachment J-7). Since the documents were nearly identical and Plaintiff does not contest that

the Air Force had other ways to assess the project’s relevant disciplines including the Past

Performance Supplement Worksheet provided by Tyonek, this Court finds it was rational for the

agency to determine that Tyonek’s PPQ met its “required document” condition. See Pl.’s Mem.

at 30; see also Pl.’s Reply at 13-14. Thus, the Air Force permissibly assigned the project a Quality

rating. Tab 41 at AR 4196-97. Further, Plaintiff fails to demonstrate that the Air Force

53
“inconsistently applied objective solicitation requirements” in accepting a form that was nearly

identical to the one requested as it cannot point to an Air Force rejection of any similar form. Cf.

Office Design Grp., 951 F.3d at 1372-73 (holding agency disparately treated plaintiff by assigning

points to awardee and not to plaintiff where both failed to “provide a (1) description of the process

of inventory, cataloging and protecting [agency] property and (2) description of materials used and

how they are applied to protect [agency] property during installation,” but finding no prejudice).

Accordingly, Plaintiff’s disparate treatment argument similarly fails on this ground as well.

Fifth, Plaintiff argues that the Air Force impermissibly credited Tyonek’s

project with having a “Demolition” discipline even though Tyonek’s reference did

not check it off on the PPQ, but failed to appropriately credit Frawner’s project with

a “Minimal Design” discipline indicated on its PPQ. Pl.’s Mem. at 30-31. Plaintiff contends that

the failure to credit Frawner’s APU System project resulted in an assignment of a “mere Relevant

rating.” Id. at 31. Plaintiff’s argument fails to demonstrate that the Air Force engaged in disparate

treatment. As described below, the Air Force considered the totality of documentation that Tyonek

and Frawner provided before determining whether each respectively satisfied applicable

disciplines. While the reference for Tyonek’s project PPQ did

not indicate the presence of the “Demolition” discipline, in its Past Performance Information

Document, Tyonek noted that the project included “[r]emov[ing] [an] existing muriatic acid

system.” Tab 26 (Tyonek Contractor Services, Inc. (June 14, 2021)) at AR 1482; Tab 39 at AR

2367 (PPQ for Tyonek’s ). As the Solicitation is silent

on how projects must meet the Air Force’s “multi-discipline” needs, nothing barred the Air Force

from crediting a project’s inclusion of disciplines based on the totality of substantive

documentation a bidder provided rather than merely whether a reference checked off the discipline

54
box on the PPQ form. Tab 8 at AR 397; Banknote II, at 1356 (holding when solicitation is silent,

agency need only act rationally). Thus, the SSEB had a rational basis to determine that Tyonek’s

project included a “Demolition” discipline where the reference did not identify the discipline on

its PPQ form but was evident in the contractor’s description of the scope of the project performed.

Accordingly, the “Demolition” discipline was permissibly credited. Tab 41 at AR 2605.

The Air Force also appropriately treated Frawner’s projects similarly. Just as for Tyonek,

the Air Force did not cabin its discipline determination to consideration of whether a box was

checked off on the PPQ concerning Frawner’s project. However, unlike Tyonek,

Frawner’s other documentation of its past project justified the Air Force’s decision to forgo

crediting Frawner’s project with a “Minimal Design” discipline. While Frawner’s

reference for the project checked off the box indicating the project’s inclusion of the

“Minimal Design” discipline, Tab 32 at AR 1938, Frawner did not note the “Minimal Design”

discipline for this project in its own Past Performance Supplement Worksheet, indicating Frawner

itself did not submit this past project satisfied the “Minimal Design” discipline. See Tab 19

(Transmittal Email - Frawner Corporation (June 14, 2021)) at AR 1127. Unlike the other

disciplines, “Minimal Design” is expressly defined in the Solicitation, with an entire paragraph

explaining the “necessary documentation to indicate that adequate engineering and planning to

accomplish the requirement has been accomplished.” Tab 8 at AR 380 (“Minimal Design as

specified in Mini-MACC SOW 01000, para. 1.3”), AR 395-96. It was reasonable for the Air Force

to have believed that Frawner reviewed those Solicitation requirements when it opted to forgo

selecting the “Minimal Design” discipline for the project in its Past Performance

Supplement Worksheet. Banknote I, at 381 (applying reasonableness standard in APA review).

The Air Force cannot make the same inference for the third-party reference who completed

55
Frawner’s PPQ. Accordingly, the Air Force had a rational basis to forgo crediting the

project with the “Minimal Design” discipline. As the Air Force treated both Frawner and Tyonek

under the same standards, Plaintiff fails to establish disparate treatment with this claim as well.

Office Design Grp., 951 F.3d at 1372.

As all of Plaintiff’s allegations of disparate treatment fail to meet the Office Design Group

“substantively indistinguishable” or “inconsistent[] appli[cation] [of] objective solicitation

requirements” standard, Plaintiff cannot establish that the Air Force engaged in disparate treatment

in its Past Performance evaluation. Id.

C. Plaintiff Is Prejudiced by the Air Force’s Improper Past Performance Evaluation

Having found that the Air Force arbitrarily applied unstated evaluation criteria, see infra at

Discussion Sections I(A)(ii)-(iii), this Court must assess whether Plaintiff has demonstrated

prejudice necessary to succeed in its past performance claim. Impresa Contruzioni Geom.

Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed. Cir. 2001) (requiring showing of

prejudice to succeed on claim). To establish prejudice, “a protestor must show that but for that

error, the protestor had a substantial chance of receiving a contract award,” or put another way —

barring the error the protestor would have been “within the zone of active consideration.” Off.

Design Grp., 951 F.3d at 1373-74; Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1326

(Fed. Cir. 2011) (citing Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996)). For

the reasons explained below, Plaintiff has demonstrated that it would have had a “substantial

chance” of receiving one the Air Force’s four awards “but for” the two errors in the Air Force’s

past performance evaluation — namely its arbitrary (i) automatic assignment of the lowest of the

three Relevance sub-factor ratings as the overall Relevance rating, and (ii) imposition of an

56
unstated $2 million cap when evaluating “magnitude.” See infra Discussion Sections I(A)(ii)-

(iii).

The Federal Circuit has not yet issued clear guidance concerning what would constitute a

“substantial chance” of receiving the award. Within those constraints, this Court finds the SSA’s

review helpful to its analysis. The SSA reviewed the top seven bidders with a “Substantial

Confidence” Past Performance rating to determine which four of those seven would receive the

awards. Tab 44 at AR 2706 (“I determined the best value for the government is to consider offerors

with a performance confidence assessment of Substantial Confidence before other offerors.”).

Plaintiff received a “ ” past performance rating, and thus was not in the

running for an award. Tab 41 at AR 2647. When asked at oral argument whether bidders that

received a “Substantial Confidence” past performance rating were in the “zone of active

consideration” for one of the awards, counsel for Defendant responded in the affirmative. Tr. Oral

Arg. at 56:21-25 (“THE COURT: Let me ask you about prejudice. Do you think it’s fair to say

that all bidders that . . . received a substantial confidence rating were in the zone of active

consideration for the award? [DEFENDANT’S COUNSEL]: Yes, Your Honor.”). This Court

agrees that Plaintiff meets its burden of establishing prejudice if it can demonstrate that it would

have received a “Substantial Confidence” rating if not for the Air Force’s errors. Plaintiff has done

so here.

The SSEB assigned “Substantial Confidence” ratings to those offerors “found to have

performed work comparable to the scope, magnitude, and complexity associated with Mini-MACC

task orders, and based upon evaluation of PPQs and CPARs, obtained Very Good to Exceptional

[Quality] ratings.” Tab 41 at AR 2649. The SSA adopted the SSEB’s adjectival ratings. Tab 44

at AR 2710 (SSA noting that it “reviewed the SSEB Report and agree[d] with the rationales

57
documented for the Confidence Ratings.”). While one of Plaintiff’s past projects received an

“Exceptional” Quality rating and two others received “Very Good” Quality ratings, two of

Plaintiff’s past projects were not rated and did not receive any Quality rating because their

“magnitude” was valued at over $2 million. Tab 41 at AR 2642-46 (

). Had the Air Force not

eliminated these two projects from consideration based off its unstated $2 million “magnitude”

cap and its unstated lowest of three sub-factor rule, these projects would have been assigned an

overall “Relevance” rating, and thus would have received a Quality rating. Tab 8 at AR 390.

Indeed, these projects likely would have received at least “Very Good” Quality ratings since no

project rated for Quality by the SSEB received a rating lower than “Very Good,” and there is no

reason that these projects would be rated differently. See Tab 41; see also supra pp. 24-25

(referencing chart).

Additionally, both of Frawner’s non-assessed projects are “comparable to the scope,

magnitude, and complexity associated with Mini-MACC task orders.” Tab 41 at AR 2649. First,

both projects received “Very Relevant” “scope” and “complexity” sub-factor ratings, the highest

possible sub-ratings. Tab 41 at AR 2642-45. While both projects received overall “Not Relevant”

ratings due to the Air Force’s arbitrary application of an unstated $2 million cap, both projects

could have received strong Relevance ratings, especially considering projects right under the $2

million threshold received the highest possible “magnitude” sub-rating. See, e.g., Tab 41 at AR

2618 (assigning Orion’s project

valued at $ a “Very Relevant” “magnitude” sub-rating). Indeed, one of Frawner’s

non-assessed past projects was valued at only $ above $2 million. Id. at AR 2644

(valuing at $ ). Frawner’s non-assessed

58
projects received the highest “Very Relevant” Relevance sub-factor ratings for “scope” and

“complexity” and may likely have received, at minimum, “Very Good” Quality ratings. See id. at

AR 2642-45. Accordingly, Frawner would likely have received a “Substantial Confidence” Past

Performance rating if not for the Air Force’s errors.34 This Past Performance rating would have

placed Plaintiff in the “zone of active consideration,” as Defendant properly acknowledged at oral

argument. Allied Tech. Grp., Inc., 649 F.3d at 1326 (citation omitted); see also Tr. Oral Arg. at

56:21-25.

Lastly, Plaintiff was prejudiced by the Air Force’s arbitrary application of unstated

evaluation criteria because it was not able to tailor the submissions of its projects to match such

unstated criteria of which it had no notice. Had Plaintiff known of a $2 million cap and the

undisclosed consequences of exceeding that cap, it could have submitted projects to meet that

Relevancy requirement more aptly.

To be clear, this Court is not directing the Air Force to make an award to Plaintiff based

on this Court’s ruling. In fact, should Defendant decide to go forward with awarding Mini-MACC

contracts, Plaintiff could land in the same position after the Air Force performs corrective action

consistent with this Memorandum and Order. However, the Court is satisfied that Plaintiff has

established the necessary prejudice to demonstrate it would have a “substantial chance” of winning

an award. Off. Design Grp., 951 F.3d at 1373–74. Plaintiff has met its burden.

34
For example, the offeror ranked directly above Frawner, Ames 1 (ranked seventh), received a
Substantial Confidence rating despite having the same exact Quality ratings as Frawner: two “Very
Good” projects, one “Exceptional” project, and two unrated projects. Tab 41 at AR 2581.

59
II. Price

Plaintiff next argues that the Air Force’s Price analysis was arbitrary, capricious, and

unlawful because the agency (1) performed an inadequate price reasonableness analysis, (2) failed

to adequately consider Price, reducing it to a “nominal factor,”35 and (3) conducted an “improper

and undocumented” best value tradeoff analysis. Pl.’s Mem. at 33. Defendant responds that the

agency properly considered Price in both its price reasonableness and best value tradeoff analysis.

Def.’s Cross-MJAR at 30. For the reasons explained below, while this Court finds the Air Force’s

price reasonableness analysis proper, it holds the best value tradeoff analysis was arbitrary and

capricious.

A. The Air Force Properly Evaluated Price Reasonableness

Plaintiff contends that the Air Force did not conduct a “proper” price reasonableness

evaluation as required by FAR 15.404-1(a)(1)36 because it “failed to adequately establish price

reasonableness for three of the four awardees whose prices were ‘inconsistent’ with the other

received offers.” Pl.’s Mem. at 36-37 (referencing Tyonek, Eklutna, and Orion); see also FAR

14.408-2(a) (“The contracting officer shall determine that . . . the prices offered are reasonable

before awarding the contract. The price analysis techniques in 15.404-1(b) may be used as

35
This argument rests entirely on Plaintiff’s other two Price arguments — namely whether the Air
Force arbitrarily considered Price in its (i) price reasonableness and (ii) best value tradeoff
analyses. See Pl.’s Mem. at 33-36 (arguing that agency failed to adequately consider Price in price
reasonableness analysis where it concluded that “all thirteen TEPs were reasonable . . . with no
other meaningful analysis,” and in best value tradeoff analysis by relying on “Past Performance
ratings alone to make the final award decision”). Accordingly, the Court analyzes this claim within
its discussion of the sufficiency of the agency’s price reasonableness and best value analyses. See
infra Discussion Sections II(A) and (B).
36
“The contracting officer is responsible for evaluating the reasonableness of the offered prices.
The analytical techniques and procedures described in this subsection may be used, singly or in
combination with others, to ensure that the final price is fair and reasonable. The complexity and
circumstances of each acq

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7799086. Public record. Not legal advice.