One Largo Metro, Llc v. United States

In the United States Court of Federal Claims

No. 12-501C

Filed: January 31, 2013

Issued for Publication: February 21, 20131

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

ONE LARGO METRO, LLC, * Post-Award Bid Protest;

* Cross-Motions for Judgment

Plaintiff, * on the Administrative Record;

v. * Technical Evaluation; Best

* Value Trade-Off Analysis; Bid

UNITED STATES, * Preparation and Proposal

* Costs.

Defendant. *

*

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

Joseph J. Dyer, Seyfarth Shaw, LLP, Washington, D.C., for Plaintiff. With him

were Ronald Gart and Caroline A. Keller, Seyfarth Shaw, LLP, Washington, D.C.

Steven M. Mager, Trial Attorney, Commercial Litigation Department, Civil

Division, United States Department of Justice, Washington, D.C., for Defendant. With

him were Jeanne F. Davidson, Director, Commercial Litigation Department and Stuart

F. Delery, Principal Deputy Assistant Attorney General, Civil Division. Elizabeth H.

Johnson, Regional Counsel, General Services Administration, Washington, D.C., of

counsel.

OPINION

HORN, J.

On August 8, 2012, Plaintiff, One Largo Metro, LLC (One Largo) filed a post-

award bid protest in this court following award of an United States General Services

Administration (GSA) contract to Fishers Lane, LLC (Fishers Lane),2 instead of to

1

This opinion was issued under seal on January 31, 2013. The parties were given the

opportunity to propose redactions to the court. Neither party proposed any redactions.

The opinion, therefore, is unsealed and issued for publication.

2

Fishers Lane proposed using the Parklawn building in Rockville, Maryland, currently

occupied by the United States Department of Health and Human Services (HHS), as the

site for contract award. Fishers Lane is referred to interchangeably throughout the

Administrative Record and the parties’ briefs as Fishers Lane and Parklawn. The court

Plaintiff, pursuant to Solicitation for Offers, No. 08-011 (Solicitation). Plaintiff alleges

that, but for Defendant’s violation of statutes and regulations in awarding the lease to

Fishers Lane, One Largo should have received the award. Plaintiff seeks

3

$4,038,739.00 as monetary relief in the form of bid preparation and proposal costs.

Plaintiff filed a motion for judgment on the Administrative Record and, in response,

Defendant filed a cross-motion for judgment on the Administrative Record.

FINDINGS OF FACT

On July 16, 2008, Defendant issued the Solicitation4 to lease space for HHS in

Montgomery County or Prince George’s County, Maryland, in order to consolidate

several HHS locations, including the Parklawn building in Rockville, Maryland, into one.

The Solicitation requested offers to rent office space to the government on a fixed price

basis for a fifteen-year term. It also stated that modernization of HHS’s current location

at the Parklawn building could be a “potential solution” for the Solicitation, provided that

the building complied with all requirements of the Solicitation once renovated. The

Solicitation provided that “the lease will be awarded to the Offeror whose offer will be

most advantageous to the Government and provides the best value to the Government,

price and other award factors considered as set forth below.”

Offers were to be evaluated on the basis of three technical factors: “Location,”

“Building Characteristics,” and “Past Performance and Key Personnel.” Each factor was

further broken down into several sub-factors, as follows:

generally refers to the winning offeror as Fishers Lane, except when quoting from the

Administrative Record and the briefs. Fishers Lane did not move to intervene in the

above captioned case.

3

Plaintiff alleges in its Complaint that a portion of these costs are contingent because

vendors have agreed to discount their bills should Plaintiff fail to recover its costs from

Defendant. Plaintiff also states in its Complaint that various other costs are estimates of

the cost of their employees’ efforts.

4

The Solicitation was amended ten times. Several of the provisions at issue in this

case were among the provisions amended. References in this opinion, therefore, are to

the amended provisions.

2

Location

1. Access to Existing Metrorail5

2. Access to Amenities

Building Characteristics

1. Number of Buildings

2. Planning Efficiency and Flexibility6

3. Quality of Building Architecture, Building Systems, and Construction7

Past Performance and Key Personnel

1. Past Performance

2. Key Personnel

The Solicitation ranked the importance of each factor and sub-factor:

Location is of equal importance to Building Characteristics and each is

significantly more important than Past Performance and Key Personnel.

The Location factor is comprised of two sub-factors, of which Access to

Metrorail is significantly more important than Access to Amenities.

Furthermore, Access to Metrorail is more important than any other sub-

factor of either of the other two technical evaluation criteria. The Building

Characteristics factor is comprised of three sub-factors, of which Number

of Buildings is more important than Planning Efficiency and Flexibility and

is significantly more important than Quality of Building Architecture,

Building Systems and Construction. The Past Performance sub-factor is of

equal importance to the Key Personnel sub-factor in the Past Performance

and Key Personnel factor.

5

The Solicitation uses both the term “Access to Existing Metrorail” and “Access to

Metrorail.” The parties and many of the documents in the Administrative Record refer to

this sub-factor as “Access to Metrorail.” The court, therefore, refers to this sub-factor as

“Access to Metrorail.”

6

The Solicitation refers to this sub-factor as “Planning Efficiency and Flexibility,”

whereas the Source Selection Plan refers to this sub-factor as “Planning, Efficiency and

Flexibility.” The court refers to this sub-factor as “Planning Efficiency and Flexibility.”

7

The Solicitation refers to this sub-factor as “Quality of Building Architecture, Building

Systems, and Construction.” At different points in the Administrative Record, this sub-

factor is referred to as “Quality of Building Architecture, Systems and Construction,” or

“Quality of Architecture, Building Systems, and Construction.” The court uses the

Solicitation language, “Quality of Building Architecture, Building Systems, and

Construction,” unless directly quoting from another source.

3

Plaintiff contests Defendant’s evaluation of the Access to Metrorail and Planning

Efficiency and Flexibility sub-factors. Other technical sub-factors, however, are

addressed briefly in this opinion because the offerors’ overall ratings are relevant to the

issue of whether Defendant properly used and conducted a trade-off analysis in

awarding this contract.

The Solicitation stated that all proposed buildings “must be located within three

(3) miles of a Metrorail station, as measured from the main entrance of the building to

the nearest entrance of the transit facility by the driving distance on existing roads.”

Offerors that were located more than 2,500 walkable linear feet from a Metrorail station

were required to provide shuttle service at their expense. Regarding the Access to

Metrorail sub-factor, the Solicitation stated:

In addition to providing a convenient means of commuting to and from

work for HHS employees, access to Existing Metrorail is also important as

it provides a useful method for employees to travel back and forth to other

HHS facilities, during normal business hours. Distances will be measured

from the main entrance of the building to the nearest entrance of the

transit facility, in walkable linear feet (wlf) or, if it is more than 2,500 wlf

[walkable linear feet], by the driving distance of existing roads. Buildings

closer to an existing Metrorail station will be evaluated more highly.

For the other sub-factor under the Location factor, Access to Amenities,8 the

Solicitation provided that offers would be evaluated for amenities within the building, as

well as amenities within one mile of the main entrance of the building closest to the

entrance to the amenity. In a section labeled “Location Amenities,” the Solicitation

stated:

Adequate eating facilities shall be located within 1 mile. The government

encourages pedestrian access from the building location to the following

basic services: fitness facilities, postal facilities . . . , restaurants, day care

center, fast food establishments, dry cleaners, ATMs/banking services,

convenience shops, card/gift shops, hair salons, automotive service

stations, and drug stores.

In a separate section labeled “Access to Amenities,” dealing specifically with the

Access to Amenities sub-factor, the Solicitation indicated that offers would be evaluated

for the quantity and variety of those same twelve categories of amenities. The

Solicitation continued:

If possible, these amenities should be available during early morning and

evening hours, as well as operating during a normal business day. The

8

In Amendment Number Eight to the Solicitation, issued on November 7, 2008,

Defendant modified the language of two provisions, “Location Amenities” and “Access

to Amenities.” References regarding the Access to Amenities sub-factor are to

Amendment Number Eight.

4

final evaluation will consider all of the available amenities and the offers

will be scored based on quantity, variety, hours and proximity of such

amenities. To be considered, restaurants and fast food establishments

must be open for breakfast and lunch. The best rating will be given to

offers that provide the greatest variety and quantity of amenities with good

hours of operation existing at the time of occupancy within the building or

within 1,500 walkable linear feet of the building.

Under the Building Characteristics factor, the most important sub-factor was

Number of Buildings, which was to be evaluated based on the number of buildings the

offeror proposed, with a lower number of buildings, or buildings connected by a tunnel

or covered walkway, to be given higher ratings. With regard to the Planning Efficiency

and Flexibility sub-factor of the Building Characteristics factor, the Solicitation stated:

Each building will be evaluated for overall planning efficiency. This

evaluation will include blocking and stacking plans, floor plate sizes,

circulation factors, common area factors, rentable to usable (“r/u”) square

foot ratios, column spacing, column bay sizing, core configuration and

placement, window mullion spacing, and other indicia of planning

efficiency and flexibility .… The Government prefers solutions that offer

integrated performance effectiveness with more efficiency and more

flexibility for layout and more flexibility for future reconfigurations.

Proximity and accessibility of the loading dock to the freight elevator and

ability of the lobby design to accommodate integration of Government

security requirements will also be considered. Buildings which provide for

more efficiency and flexibility will be more highly evaluated.

Also as part of the Building Characteristics factor, the Solicitation stated under the

Quality of Building Architecture, Building Systems, and Construction sub-factor that the

government would assess the “qualitative attributes of the building’s architecture,

massing, building systems, construction, and finishes.” For this sub-factor, “[t]he

building systems that provide the most capacity, efficiency, reliability, and flexibility will

be more highly rated.”

Regarding the Past Performance sub-factor, the Solicitation stated that

Defendant would evaluate the offeror’s “past two (2) performances for development and

ownership of projects of similar size, scope and complexity,” with projects that are “more

current and demonstrate a clear parallel” with this Solicitation being rated more highly.

The Solicitation indicted, however, that “[f]ailure to submit information on Past

Performance due to lack of experience will be evaluated by the Government as neutral.”

Under the Key Personnel sub-factor, the Solicitation indicated that Defendant would

evaluate offerors’ “entire design, construction, and management team,” for qualifications

and past performance on similar projects. Moreover, the Solicitation stated, “[o]fferors

whose key personnel provide the greatest qualifications, the most favorable past

performance on similar projects, and a proven track record of working together on all

three past successful projects will be more highly rated.”

5

The Solicitation indicated that “[t]he Government intends to use a trade-off

process in selecting the offer that is most advantageous.” The Solicitation described the

trade-off analysis as “a method of evaluating price and other factors as specified in the

solicitation to select the offer that provides the best value to the Government.” The

parties have stipulated that the trade-off process “permits trade-offs among price and

technical factors” and “allows the Government to accept other than the highest

technically rated offer and other than the lowest priced offer.” The Solicitation described

the relationship between price and technical ratings for the purposes of Defendant’s

trade-off analysis, as follows:

For this procurement, price is of significantly less importance than the

combined weight of the technical factors; however, the degree of

importance of price as a factor becomes greater as technical offers

approach equality. Ultimately, if the highest technical offer is not the

lowest priced offer, the Government will assess the value of the technical

factors of an offer to reconcile the price and technical factors. The

perceived benefits of the higher priced offer, if any, must merit the

additional cost.

In connection with the Solicitation, Defendant issued a Source Selection Plan,

detailing the process that would be used to assess offers.9 Defendant indicated that it

would employ a formal source selection procedure as outlined in Federal Acquisition

Regulation (FAR) Subpart 15.3 (current through Feb. 7, 2013). A Source Selection

Evaluation Board was established to evaluate offers. Three Technical Evaluation

Teams were formed and each one was assigned to evaluate one of the three technical

factors: Location, Buildings Characteristics, and Past Performance and Key Personnel.

The Technical Evaluation Teams were tasked with performing a comprehensive,

technical evaluation of each offer, for the assigned factor and sub-factors, including

identifying strengths, weaknesses, and deficiencies. The Technical Evaluation Teams

reported their findings to the Source Selection Evaluation Board, which was tasked with

“[a]ssisting in evaluating proposals,” “[r]ecording findings and ranking offers,”

“[s]ummarizing evaluation results of each offer,” “[r]eaching a consensus decision,” and

“[p]reparing report(s) with the assistance of the TETs [Technical Evaluation Teams] on

the evaluation results for recommendation to the SSA [Source Selection Authority].”

The Source Selection Authority was responsible for selecting the proposal which

represented the best value to the government. If the Source Selection Authority

disagreed with the recommendation of the Source Selection Evaluation Board, he or

she was required to document that disagreement, and provide supporting reasons for

not following the Source Selection Evaluation Board’s recommendation.

9

On October 10, 2008, the initial Source Selection Plan was revised to conform with the

various amendments which had been made to the Solicitation. The revised Source

Selection Plan was approved by the Source Selection Authority on October 30, 2008.

All references in this opinion are to the revised Source Selection Plan.

6

The Source Selection Plan elaborated on the trade-off analysis, which the

Defendant could employ in selecting an offer. The Source Selection Plan repeated the

language of the Solicitation, stating that price was of less importance than the technical

factors, and continued:

Ultimately, if the highest technical offer is not the lowest priced offer, the

SSEB [Source Selection Evaluation Board] will assess and/or quantify the

value of the technical factors of an offer to reconcile the price and

technical factors. The perceived benefits of the higher priced offer, if any,

must merit the additional cost and the rationale must be fully documented

in the file. The SSEB [Source Selection Evaluation Board] and SSA have

a degree of discretion in weighing the significance of the relationship

between technical evaluation and cost differentials. Nonetheless, the

SSEB and SSA may select an offeror that has a significantly higher price if

the technical benefits of the offer are identified and support the conclusion

that the technically superior offer is worth the significantly higher cost.

The Source Selection Plan also set forth the following adjectival ratings to be

assigned to each technical factor and sub-factor:

 Superior: Many significant strengths; no significant weaknesses; some

minor weaknesses.

 Highly Successful: Many significant strengths; few significant

weaknesses; some minor weaknesses.

 Successful: Some significant and minor strengths and weaknesses,

but meets the minimum requirements defined in the SFO [Solicitation].

 Marginal: Some strengths; many weaknesses. A marginally acceptable

offer.

 Poor: Some or no strengths; many significant weaknesses. An offer

that fails to meet the minimum requirements defined in the SFO and is

unacceptable. Offerors receiving a “Poor” rating will be given the

opportunity to meet the minimum requirements.

The Source Selection Plan also assigned a percentage value10 to each technical

factor and sub-factor for the purposes of evaluating offers:

10

The Source Selection Plan also included a sample Consensus Scoring Sheet to be

used by the Technical Evaluation Teams. The Consensus Scoring Sheet noted,

regarding the percentage assignments for each sub-factor, “[t]he weights shown for

each factor are included only to indicate the approximate relative value of each factor

and will not be converted to an exact numerical value. The superiority of each factor,

and of the offer as a whole, will be determined by a careful and complete evaluation of

the strengths and weaknesses of that factor or offer and not by a strictly mathematical

summation of grades.”

7

Location – 45%

1. Access to Metrorail – 35%

2. Access to Amenities – 10%

Building Characteristics – 45 %

1. Number of Buildings – 20%

2. Planning Efficiency and Flexibility – 15%

3. Quality of Building Architecture, Building Systems, and

Construction – 10%

Past Performance and Key Personnel – 10%

1. Past Performance – 5%

2. Key Personnel – 5%

Additionally, the Source Selection Plan set forth a formula to evaluate the Access to

Metrorail sub-factor11 with the following criteria:

11

The Solicitation provided that, for the purposes of the Access to Metrorail sub-factor,

“[d]istances will be measured from the main entrance of the building to the nearest

entrance of the transit facility. . . .” The Source Selection Plan, however, stated that

distances should be measured “from the main entrance of the furthest building of the

offered facility to the turnstile of the nearest Metro entrance.” In the first round of

protests before the United States Government Accountability Office (GAO) in this case,

the GAO rejected a challenge to Fishers Lane’s “Highly Successful” rating on the

Access to Metrorail factor, noting that, while there were inconsistencies in how distance

from Metrorail was measured, Defendant’s calculations were explained in the record

and the protestors failed to show that Defendant’s calculations were unreasonable.

Whether the distance from Metrorail was measured from the main entrance of the

building “to the nearest entrance of the Metrorail station,” or “to the turnstile of the

nearest Metro entrance,” would not affect the outcome of this case, as neither One

Largo’s “Superior” rating, nor Fishers Lane’s “Highly Successful” rating on the Access to

Metrorail sub-factor would change under either method of measurement. Moreover,

Plaintiff has not raised this inconsistency in its Complaint, briefs, or at oral argument.

8

Rating Distance to Metro

Superior Within 1,500 wlf, as measured in walkable linear feet (wlf)

from the main entrance of the furthest building of the offered

facility to the turnstile of the nearest Metro entrance

Highly More than 1,500 wlf but up to 2,500 wlf, as measured in

Successful walkable linear feet from the main entrance of the furthest

building of the offered facility to the turnstile of the nearest

Metro entrance

Successful More than 2,500 wlf but less than one mile, as measured by

the driving distance of existing roads from the main entrance

of the furthest building of the offered facility to the turnstile of

the nearest Metro entrance

Marginal More than one mile but less than two miles, as measured by

the driving distance of existing roads from the main entrance

of the furthest building of the offered facility to the turnstile of

the nearest Metro entrance

Poor More than two miles but less than three miles, as measured

by the driving distance of existing roads from the main

entrance of the furthest building of the offered facility to the

turnstile of the nearest Metro entrance

Similarly, the Source Selection Plan included the following chart for evaluating

the Access to Amenities sub-factor:

9

Rating Distance from Amenities

Amenities

Superior Within 1,500 wlf At least 9 amenities

from the following

categories:

restaurants, fast food

establishments, day

care centers, fitness

facility, dry cleaners,

bank/ATM, postal

facility, convenience

shops, cards/gift

shops, hair salons,

automotive service

stations, and drug

stores

Highly Successful Within 2,500 wlf At least 8 from the

above amenity

categories, to

include restaurants

and fast food

establishments

Successful Within 2,500 wlf At least 5 from the

above amenity

categories

Marginal Within 2,500 wlf At least 3 items from

the above amenity

categories

Poor More than 2,500 wlf At least 3 from the

but within one mile above amenity

categories

10

With regard to the Planning Efficiency and Flexibility sub-factor, the Source

Selection Plan stated:

The Government prefers a building that contains the following features:

 floor plate sizes,

 Efficient floor plate approximately 36,000 USF [useable square

feet]

 Rectangular in shape

 common area factors,

 Useable to gross 75%

 column spacing,

 Even, regular column spacing no less than 25’

 Optimum 30’ X 45’

 core configuration and placement

 Interior, rectangular core containing standard building support

elements, i.e., egress stairs, electrical and telephone closets, toilet

rooms, janitor closet

 45’ from core to window wall.

 Z-type corridor at core

 window mullion spacing

 5’ on center and each mullion wide enough to receive a 4” gypsum

board partition.

 and other relevant indicia of planning efficiency and flexibility.

 Column grid, window grid and ceiling grid all modular and related

to one another on a 5’ module.

 100 PSI live load throughout

 Mix of ambient and direct lighting

 Consistent 9’ ceiling height; 10’ for training and conference rooms.

 Flexible infrastructure.

 Generally, a rectangular floor plan.

As to the Number of Buildings sub-factor, the Source Selection Plan indicated that

adjectival ratings would be based on the number of buildings, with “Superior” ratings

given to offers that proposed one building.12

Regarding the Quality of Building Architecture, Building Systems, and

Construction sub-factor, the Source Selection Plan included a long list of building

features that would be assessed. The Source Selection Plan stated, “[b]uildings whose

construction and architectural finishes meet or exceed industry standards for new, first-

class construction in prime commercial office districts will be rated more highly.”

12

All five offerors proposed a single building, thus, as indicated below, all offers

received a “Superior” rating on the Number of Buildings sub-factor.

11

Finally, the Source Selection Plan detailed how the Past Performance and Key

Personnel sub-factors would be evaluated. For the Past Performance sub-factor, the

Source Selection Plan indicated that the government would review three references and

three case studies for each offeror, to “evaluate the offeror’s Past Performance –

including development, design, construction and property management – on projects of

similar size, scope and complexity.” Regarding the Key Personnel sub-factor, the

Source Selection Plan stated that “[t]he Government will evaluate the offeror’s entire

design, construction, and management team” for their qualifications and relevant

experience.

The Source Selection Plan stated that, after the Technical Evaluation Teams

completed their technical evaluations of all offers, the Source Selection Evaluation

Board was to compare each proposal’s final technical evaluation with its price. If the

offer with the highest technical evaluation also had the lowest price, that offer was to be

recommended to the Source Selection Authority for contract award. If not, however, the

Source Selection Evaluation Board was responsible for deciding “whether the higher

price proposed by the best technical proposal is justified by the differential in price and

the technical merit as compared to the second ranked technical offer” by conducting a

trade-off analysis. The Source Selection Plan emphasized that the Source Selection

Evaluation Board had “a degree of discretion” in conducting the trade-off analysis, and

that “[t]he degree of difference in technical merit in terms of evaluation ratings or scores

need not be proportional to the difference in price for a technically superior offer to be

selected,” but that the Agency must demonstrate “with reasonable certainty that the

added value of the proposal is worth the higher price.” Once the Source Selection

Evaluation Board made a decision, the Source Selection Authority, “in consultation with”

the Contracting Officer, was required to “validate or question the recommendation of the

successful offer,” using independent judgment, and if appropriate, select another offer.

The Source Selection Plan stated that “[e]ach of these actions must be accompanied by

a written narrative justification explaining why the selected offer represents the best

value to the Government, or, if applicable, why the SSEB’s recommendation is not

approved.”

Initially, Defendant received five offers in response to the Solicitation, from King

Farm Associates, LLC (King Farm), Metroview Development Holdings, LLC

(Metroview),13 One Largo, University Town Center (University),14 and Fishers Lane. On

February 26, 2010, after funding issues delayed the procurement, a revised Solicitation

was issued, and the same five offerors responded in November 2010. Each of those

five offers was evaluated by the Technical Evaluation Teams and the Source Selection

Evaluation Board. After several rounds of discussions, revised proposals were

13

Metroview is referred to interchangeably throughout the Administrative Record as

Metroview and New Carrollton. This opinion refers to the offeror as Metroview, unless

directly quoting from the Administrative Record.

14

University is referred to interchangeably throughout the Administrative Record as

University, University Town Center, and UTC. This opinion refers to the offeror as

University, unless directly quoting from the Administrative Record.

12

submitted. Ultimately, Defendant requested, and received, final proposals from all five

offerors.

As instructed in the Solicitation, the Contracting Officer performed a present

value calculation and determined the net present value (NPV) per usable square foot for

each of the five offers:

Price Rank Offeror NPV Difference from

lowest NPV

1 King Farm $23.82 n/a

2 Fishers Lane $24.74 $0.92

3 One Largo $27.83 $4.01

4 University $27.89 $4.07

5 Metroview $27.95 $4.13

The Technical Evaluation Teams reviewed the five offerors’ final proposals and

submitted their reports to the Source Selection Evaluation Board in December 2010.

The Source Selection Evaluation Board then conducted its own review and issued its

report on January 12, 2011. In conducting its evaluations, the Source Selection

Evaluation Board stated that it was “guided by the SSP [Source Selection Plan] and

SFO [Solicitation], the evaluation factors, the specific weights assigned to them, [and]

the TET’s findings and recommendations regarding the ratings and merits of the offer,”

as well as the Source Selection Evaluation Board’s “own independent evaluation of the

offers on a factor by factor basis.” Before receiving any pricing information on the

proposals, the Source Selection Evaluation Board assigned the following adjectival

ratings on each technical sub-factor for each offeror:

13

Location (45%) Building Characteristics (45%) Past Performance/Key Overall

Personnel (10%)

Access to Access to Number Planning Quality of Past Key

Metrorail Amenities of Efficiency Architecture, Performance Personnel

(35%) (10%) Buildings (15%) Building (5%) (5%)

(20%) Systems, &

Construction

(10%)

King Marginal Highly Superior Superior Superior Superior Superior Highly

Farm Successful Successful

New Superior Marginal Superior Superior Superior Neutral Superior Superior

Carrollton

One Superior Successful Superior Superior Superior Neutral Superior Superior

Largo

Parklawn Highly Superior Superior Highly Superior Superior Superior Superior

Successful Successful

UTC Highly Superior Superior Superior Highly Superior Highly Superior

Successful Successful Successful

The Source Selection Evaluation Board’s technical sub-factor ratings largely matched

those assigned to each offeror by the Technical Evaluation Teams, with several

exceptions: 1) the Building Characteristics Technical Evaluation Team assigned

University’s offer a “Superior” rating for the Quality of Building Architecture, Building

Systems, and Construction sub-factor, while the Source Selection Evaluation Board

assigned a “Highly Successful” rating; 2) the Past Performance and Key Personnel

Technical Evaluation Team assigned King Farm a “Highly Successful” rating for the

Past Performance sub-factor, whereas the Source Selection Evaluation Board assigned

a “Superior” rating; and 3) the Past Performance and Key Personnel Technical

Evaluation Team assigned University a “Superior” rating on the Key Personnel sub-

factor, while the Source Selection Evaluation Board assigned a “Highly Successful”

rating. There were also some discrepancies between the numbers of significant and

minor strengths and weaknesses assigned to various offerors on various sub-factors by

the Technical Evaluation Teams and the Source Selection Evaluation Board,

respectively.

Turning to the specific evaluations of the Source Selection Evaluation Board,

regarding the Access to Metrorail sub-factor, the Source Selection Evaluation Board

stated that the government calculated the distance from the main entrance of One

Largo’s building to the turnstiles of the nearest Metrorail entrance to be 525 walkable

linear feet, and the distance from One Largo’s building to the entrance of the nearest

Metrorail to be less than 525 walkable linear feet. Therefore, Plaintiff was given a

“Superior” rating on this sub-factor. For Fishers Lane, the distance from the proposed

main entrance of the building to the entrance of the nearest Metrorail was calculated at

2,407 walkable linear feet, under the 2,500 walkable linear feet indicated as significant

14

in the Solicitation. Based on that measurement, Fishers Lane was rated “Highly

Successful.”

Under the Access to Amenities sub-factor, One Largo was assigned a

“Successful” rating, as the Source Selection Evaluation Board found that six amenity

categories were located within 2,500 walkable linear feet of the proposed building site.

Fishers Lane received a “Superior” rating based on the presence of nine amenity

categories within 1,500 walkable linear feet of the proposed building site.

With respect to the Planning Efficiency and Flexibility sub-factor, the Source

Selection Evaluation Board indicated:

For those Offers included in the competitive range, the final evaluation will

also consider the test fits prepared by the Offeror’s architect for a typical

floor as certified by the Offeror. The Government prefers solutions that

offer integrated performance effectiveness with more efficiency and more

flexibility for layout with flexibility for future reconfiguration. The

Government also prefers to minimize the travel distance between

employees within facility(ies). The Government will also coordinate the

percentage of usable office space that can be located within 45’ of a

windowed perimeter. Ratings will be based on strengths and weaknesses

of offer.

The Source Selection Evaluation Board rated One Largo as “Superior” for the

Planning Efficiency and Flexibility sub-factor, and found that it had four significant

strengths, six minor strengths, no significant weaknesses, and four minor weaknesses.

The Source Selection Evaluation Board indicated that One Largo’s significant strengths

were:

 87% Common Area Factor exceeds the Source Selection Plan

preference of 75%, resulting in a more efficient floor plate.

 5’ on center mullion spacing meets Source Selection Plan

preference increasing daylight penetration and improving office

views.

 65,440 SF floor plate greatly exceeds the Source Selection Plan

preference of 36,000 SF, limiting the amount of employee

dispersion and increasing overall efficiency.

 In accordance with the SSEB rating table, a 1.117 Rentable to

Usable Square Foot Ratio (“r/u”) translates to a more efficient floor

plate.

15

The Source Selection Evaluation Board indicated that One Largo’s minor strengths

were:

 Z-type corridor meets the Source Selection Plan preference.

 8’ 6” typical ceiling height exceeds the Solicitation standard,

promoting a greater sense of openness.

 Interior core meets the Source Selection Plan preference, which

translates to a more efficient floor plate.

 Column free areas increase ease of space planning.

 80 pounds per square foot live load exceeds the Solicitation

standard and allows for greater storage and workstation flexibility.

 The majority of the space consists of 30’ x 45’ column spacing

which meets the Source Selection Plan’s “optimum” spacing

preference.

The Source Selection Evaluation Board noted that there were no significant

weaknesses and identified the minor weaknesses in One Largo’s proposal as:

 non-uniform column spacing, which negatively affects space planning

and decreases the Government’s flexibility in arranging systems

furniture;

 non-rectangular floor plate, which does not meet the Source Selection

Plan preference and decreases the overall efficiency as well as

efficiency of space planning;

 non-rectangular core does not meet Source Selection Plan preference;

and

 the distance from the core to the window wall exceeds the 45’ Source

Selection Plan preference in certain areas.

In its “Consensus Grade,” the Source Selection Evaluation Board stated:

The SSEB was split 4-1, however the majority concluded that the Offeror

[One Largo] made significant design modifications that directly addressed

technical deficiencies including column spacing, which was eliminated as

a significant weakness, and a decrease in the R/U ratio which resulted in

an improved rating. The SSEB members concurred that the offered site

met and in many cases exceeded the SSP [Source Selection Plan]

preference, and as a result assigned a SUPERIOR rating based on the

abundance of significant strengths, and the elimination of their one (1)

significant weakness. The dissenting opinion was that the final grade be

Highly Successful due to the numerous minor weaknesses. However, per

the SSP, agreement was reached because there was no significant

difference in the evaluator’s grades by more than a single adjective.

(emphasis in original).

16

Fishers Lane was rated as “Highly Successful” on the Planning Efficiency and

Flexibility sub-factor, and the Source Selection Evaluation Board found that its proposal

had five significant strengths, three minor strengths, one significant weakness, and four

minor weaknesses. The Source Selection Evaluation Board indicated that the significant

strengths in Fishers Lane’s proposal were:

 54,970 SF floor plate exceeds the Source Selection Plan

preference of 36,000 SF, limiting the amount of employee

dispersion and increasing overall efficiency

 88% Common Area Factor exceeds the Source Selection Plan

preference of 75%, resulting in a more efficient floor plate.

 5’ on center mullion spacing meets Source Selection Plan

preference, increasing daylight penetration and improving office

views.

 The interior core is less than 45’ from the window wall, significantly

increasing the natural light penetration within the building.

 100 pounds per square foot live load meets the Source Selection

Plan preference and exceeds the Solicitation standard, which

allows for greater storage and workstation flexibility

The Source Selection Evaluation Board indicated that the minor strengths in Fishers

Lane’s proposal were:

 8’ 2” – 8’ 10’ typical ceiling height exceeds the Solicitation standard,

promoting a greater sense of openness.

 In accordance with the SSEB rating table, a 1.13 Rentable to

Usable Square Foot Ratio (“r/u”) translates to a more efficient floor

plate.

 Interior core meets Source Selection Plan preference, which

translates to a more efficient floor plate.

The Source Selection Evaluation Board noted that the significant weakness in Fishers

Lane’s proposal was that the “20’ X 24’ and 19’ X 20’ column spacing is less than the

SSP [Source Selection Plan] preference of 25', which negatively affects space

planning,” and identified the minor weaknesses in Fishers Lane’s proposal as:

 non-rectangular floor plate does not meet the Source Selection Plan

preference and decreases the overall efficiency as well as efficiency of

space planning;

 non-uniform column spacing, which negatively affects space planning

and decreases the Government’s flexibility in arranging systems

furniture;

 non-rectangular core does not meet Source Selection Plan preference;

and

 U-shape corridor increases the travel time between offices, and

negatively affects the overall efficiency of the building.

17

In its “Consensus Grade” the Source Selection Evaluation Board stated: “[t]he SSEB

members concurred that while the offered site [Fishers Lane] meets many of the SSP

preferences, the offer had at least one (1) significant weakness, which did not change

as a result of the Offeror’s December 17, 2010 Final Proposal Revision, and as a result

assigned a HIGHLY SUCCESSFUL rating.” (emphasis in original).

As to the Past Performance sub-factor, the Source Selection Evaluation Board

assigned One Largo a “Neutral” rating, stating: “The Offeror did not provide any

evidence of any relevant past performance, including past projects or references”

because it was not available, “and will therefore be rated neutral.” Fishers Lane,

however, received a “Superior” rating on the Past Performance sub-factor based on

three significant strengths and no minor strengths, significant weaknesses, or minor

weaknesses. One Largo and Fishers Lane received identical ratings on the remaining

technical sub-factors, earning “Superior” ratings on the Number of Buildings, the Quality

of Building Architecture, Building Systems, and Construction, and the Key Personnel

sub-factors.

The Source Selection Evaluation Board assigned “Superior” overall technical

ratings to each of the offerors, except King Farm, which was rated “Highly Successful”

overall. The Source Selection Evaluation Board then provided an explanation of each

offeror’s overall technical rating, based on the weighted factors assigned in the Source

Selection Plan described above. The weighted factors meant that an offeror could

receive a high percentage of one rating even if only receiving that rating on a low

number of the sub-factors.

Adding up the percent values assigned to each technical sub-factor in the Source

Selection Plan, the Source Selection Evaluation Board calculated that King Farm

received a “Superior” rating on fifty-five percent of technical sub-factors, a “Marginal”

rating on thirty-five percent, and a “Highly Successful” rating on ten percent. The

Source Selection Evaluation Board stated: “While the Offeror received Superior ratings

in five (5) subfactors, the SSEB [Source Selection Evaluation Board] decided that a

marginal rating in the most heavily weighted subfactor (Access to Metrorail), lowers the

overall rating to Highly Successful.”

Metroview received a “Superior” rating on eighty percent of technical sub-factors,

a “Marginal” rating on ten percent, a “Highly Successful” rating on five percent, and a

“Neutral” rating on five percent. The Source Selection Evaluation Board found, “[t]his

Offeror received Superior in four (4) categories including three (3) of the most heavily

weighted categories. The Marginal rating received for Access to Amenities was only

10% of the overall rating and therefore does not justify lowering the rating to Highly

Successful.”

One Largo received “Superior” ratings on eighty-five percent of technical sub-

factors, a “Successful” rating on ten percent, and a “Neutral” rating on five percent. In

assigning One Largo an overall “Superior” rating, the Source Selection Evaluation

18

Board reasoned: “Five (5) of the subfactors are rated as Superior, including three (3) of

the most heavily weighed subfactors.”

Fishers Lane received a “Superior” rating for fifty percent of technical sub-factors,

and a “Highly Successful” rating for the other fifty percent. The Source Selection

Evaluation Board assigned Fishers Lane an overall “Superior” rating because “[t]he

Offeror received five (5) out of seven (7) Superior subcategory ratings, while the other

two (2) subcategories were rated as Highly Successful.”

University received “Superior” ratings on fifty percent of technical sub-factors,

and “Highly Successful” ratings on the other fifty percent. In justifying its overall

“Superior” rating for University, the Source Selection Evaluation Board noted that “[t]he

Offeror received ratings of Superior in four (4) out of the seven (7) subfactors. The

remaining three (3) categories were rated as Highly Successful.”

After evaluating the technical factors, the Source Selection Evaluation Board

conducted a trade-off analysis, comparing price to the technical benefits of each offer,

because the most highly rated technical proposal was not submitted by the lowest

priced offeror, King Farm. The Source Selection Evaluation Board stated that, of the

four offers that received an overall “Superior” rating, Fishers Lane had the lowest price.

The next lowest priced “Superior” offer was One Largo, which proposed a price that was

twelve percent higher than the Fishers Lane’s proposal, and University and Metroview’s

proposals were priced higher than One Largo’s proposal. Therefore, the January 12,

2011 Source Selection Evaluation Board Report concluded that One Largo, University,

and Metroview were priced significantly higher than the lowest priced “Superior” offer

from Fishers Lane, and, therefore, “should be eliminated in a trade off discussion.” The

Source Selection Evaluation Board then noted that King Farm put forth the lowest

priced offer overall. Because the lowest priced offer was not the highest technically

rated offer, the Source Selection Evaluation Board determined that a trade-off analysis

was required with respect to King Farm and Fishers Lane.

The Source Selection Evaluation Board then conducted a comparison of King

Farm and Fishers Lane on each technical factor and sub-factor, and concluded that the

two offers “approached technical equality,” thus price became more important in the

analysis. The Source Selection Evaluation Board determined that, over the life of the

lease, the Fishers Lane proposal would cost $39,000,000.00 more than King Farm’s

proposal. Although there initially was disagreement among Board members,15 the

15

The Source Selection Evaluation Board’s January 12, 2011 Report indicated that the

Source Selection Evaluation Board was initially divided on whether King Farm or

Fishers Lane represented the best value to the government. The majority of Board

members supported King Farm, finding that its distance from Metrorail was mitigated by

its provision of shuttle service, and that Fishers Lane’s weaknesses on the Planning

Efficiency and Flexibility sub-factor did not warrant Fishers Lane’s higher price,

compared to King Farm. The members who supported Fishers Lane argued that

Fishers Lane’s advantage over King Farm on the Access to Metrorail sub-factor, as well

as its overall higher technical rating, warranted its higher price, given that price was of

19

Source Selection Evaluation Board eventually decided, unanimously, that “the

perceived benefits of Parklawn’s [Fishers Lane’s] offer and the value of Parklawn’s

technical factors that lead to its Superior rating were not significantly higher than those

of King Farm and did not merit the additional cost of the net present value differential

between its offer and that of King Farm.” Based on this trade-off analysis, the Source

Selection Evaluation Board stated that the King Farm offer provided the best overall

value to the government and recommended that the Source Selection Authority select

King Farm.

After the Source Selection Evaluation Board made its recommendation to the

Source Selection Authority, Ms. Monica Sias,16 expressed concerns regarding the

Source Selection Evaluation Board’s technical evaluation system and its award

recommendation.17 The Source Selection Authority, therefore, invoked her authority to

order the re-evaluation of offers, asking the Source Selection Evaluation Board to take a

second look at all of its technical ratings, as well as its trade-off analysis. On February

3, 2011, the Source Selection Evaluation Board adopted an Addendum to the Source

Selection Evaluation Board’s January 12, 2011 Report. The Source Selection

Evaluation Board adopted only one change to its evaluation of technical sub-factors,

regarding its analysis of parking18 under the Quality of Building Architecture, Building

Systems, and Construction sub-factor. This had no effect on any offerors’ adjectival

ratings on that sub-factor. The Source Selection Evaluation Board, however, also

determined that, in assigning overall technical ratings to each offeror, the Source

significantly less importance than technical merit for this Solicitation. After further

discussion, the Source Selection Evaluation Board unanimously decided that King Farm

represented the best value to the government.

16

As indicated below, Ms. Sias was not the final decision maker in this case, as Cathy

Kronopolous, GSA’s Regional Commissioner for the Public Buildings Service (PBS),

National Capital Region, exercised her authority as the Head of Contracting Authority

for PBS’s National Capital Region to make the ultimate source selection determination.

17

The Source Selection Evaluation Board’s February 3, 2011 Addendum described the

Source Selection Authority’s concerns with the Source Selection Evaluation Board’s

January 12, 2011 Report, stating that Ms. Sias was uncomfortable with the fact that the

Source Selection Evaluation Board recommended the only offer that was rated “Highly

Successful,” while all of the others were rated overall “Superior,” because the

Solicitation stated that price was significantly less important than technical ratings for

the trade-off analysis.

18

Parking was evaluated in the Source Selection Evaluation Board’s January 12, 2011

Report, however, in the February 3, 2011 Addendum, the Source Selection Evaluation

Board determined that King Farm merited an additional minor strength under the Quality

of Building Architecture, Building Systems, and Construction sub-factor because of its

“abundance of on-site parking (2,850 spaces).” The Source Selection Evaluation Board

did not assign any further strengths or weakness to any other offeror related to parking.

20

Selection Evaluation Board had failed to account for the fact that, in accordance with the

Solicitation, the Location factor and Building Characteristics factor were supposed to be

equally weighted. The Source Selection Evaluation Board, therefore, decided that it

“needed to evaluate each offer at the factor level in order to establish the overall rating,”

rather than at just the sub-factor level, as it had done in its January 12, 2011 Report. In

addition, the Source Selection Evaluation Board reassessed its basis for assigning

overall technical ratings, concluding that “in order for an offer to receive an overall

technical rating of Superior, there must be no perceived Significant Weakness in any

Factor,” and even “any Significant Weaknesses in a sub-factor rating could have a

downward influence on an overall rating.” The Source Selection Evaluation Board

assigned each offer a technical rating for each factor, as well as a new overall technical

evaluation rating, although it left all of the sub-factor ratings unchanged from its January

12, 2011 Report. The Source Selection Evaluation Board’s February 3, 2011

Addendum included a new chart reflecting this information, as follows:19

Location Building Past Final Overall

Overall Characteristics Performance/Key Rating

(45%) Overall (45%) Personnel

Overall (10%)

King Farm Successful Superior Superior Highly

Successful

New Highly Superior Highly Highly

Carrollton Successful Successful Successful

(5%)20

One Largo Highly Superior Superior (5%) Highly

Metro Successful Successful

Parklawn Highly Highly Superior Highly

Successful Successful Successful

University Highly Highly Highly Highly

Town Center Successful Successful Successful Successful

The Source Selection Evaluation Board concluded in its February 3, 2011

Addendum that all five offers were technically equivalent, each deserving an overall

rating of “Highly Successful.” The Source Selection Evaluation Board included in the

February 3, 2011 Addendum an explanation of each offeror’s overall technical rating.

The Source Selection Evaluation Board found that each of the offers had many

strengths, but that each had at least one significant weakness on at least one sub-

19

The chart included in the February 3, 2011 Addendum also included the technical

ratings for each sub-factor. The sub-factor ratings did not change from the Source

Selection Evaluation Board’s original January 12, 2011 Report.

20

The percentages for Metroview and One Largo were included in the chart with a

footnote indicating that the “[o]ffers received a NEUTRAL rating for Past Performance

subfactor, which was not considered.” (emphasis in original)

21

factor, warranting a “Highly Successful” rating overall, rather than “Superior.” Because

the Source Selection Evaluation Board determined “the technical differences among the

offers was negligible,” the Source Selection Evaluation Board unanimously decided that

the offers were technically equivalent, thereby, making price an important factor.

Because King Farm was the lowest priced offer and had earned the same overall

technical rating as the other four offers, the Source Selection Evaluation Board

“determined that a cost/technical trade off discussion was unnecessary.” The Source

Selection Evaluation Board acknowledged that King Farm’s offer had received only a

“Successful” rating on the most important sub-factor, Access to Metrorail, but decided

that this was King Farm’s only significant weakness, and that each other offer also had

at least one significant weakness. Thus, “[a]ny perceived benefits” of another offer

“would not justify the price differential between that offer and that of King Farm.” The

Source Selection Evaluation Board, therefore, found for a second time, in its February

3, 2011 Addendum, that King Farm represented the best overall value to the

government and recommended that Ms. Sias, as the Source Selection Authority, select

King Farm as the winning offeror.

After receiving the recommendation of the Source Selection Evaluation Board,

Ms. Sias issued a selection decision on February 16, 2011. She stated that the Source

Selection Evaluation Board’s findings regarding the technical strengths and weaknesses

of each offer were consistent with the Solicitation’s criteria. She also indicated that she

agreed with the Source Selection Evaluation Board’s technical ratings at the sub-factor

level, as well as its recommendation to award the contract to King Farm. Ms. Sias,

however, disagreed with the Source Selection Evaluation Board’s sub-factor level

ratings and overall technical ratings, and based her selection decision on a different

analysis than that of the Source Selection Evaluation Board. Ms. Sias indicated that

she did not find all five offers “to be equal in terms of their technical merit,” although she

found them “to be technically very close.” Instead she found that One Largo and

University deserved overall ratings of “Superior,” while the other three offerors deserved

overall ratings of “Highly Successful.”

Regarding One Largo, Ms. Sias disagreed that its “Successful” rating on the

Access to Amenities sub-factor should lower its overall rating for the Location factor,

given that One Largo was rated “Superior” on the Access to Metrorail sub-factor, and

“Access to Metrorail was supposed to be given considerably more weight than the

Amenities subfactor” when assessing the Location factor as a whole. Ms. Sias

concluded that One Largo deserved a “Superior” rating on the Location factor and,

because it also had received “Superior” ratings on the Building Characteristics factor

and Past Performance and Key Personnel factor, it should be given an overall rating of

“Superior.” With respect to University, Ms. Sias found that one significant weakness on

the least heavily weighted sub-factor, Quality of Building Architecture, Building Systems,

and Construction, was not enough to lower University’s rating for the Building

Characteristics factor, and that it had only a minor weakness relating to the Key

Personnel sub-factor for the Past Performance and Key Personnel factor. Therefore,

she raised University’s rating on both the Building Characteristics factor and the Past

Performance and Key Personnel factor to “Superior,” and found that University should

22

earn an overall “Superior” rating. Ms. Sias agreed with the analysis contained in the

Source Selection Evaluation Board’s February 3, 2011 Addendum regarding each of the

other three offers.

Although Ms. Sias changed One Largo’s and University’s overall ratings, she

agreed with the Source Selection Evaluation Board’s recommendation that King Farm

represented the best value to the government. This was based on her conclusion that

the “additional technical merit achieved by the One Largo Metro and the UTC

[University] offers d[id] not warrant the additional cost of those offers.” Ms. Sias

indicated that all five offers were “technically very close,” therefore she conducted a

trade-off analysis and compared the two “Superior” offers, One Largo and University,

against the lowest priced “Highly Successful” offer, King Farm. One Largo’s offer was

priced 16.8% higher than King Farm’s offer, Ms. Sias noted, making it $90,404,890.00

more expensive over the life of the lease. She determined that the “only measurable

technical differences” between One Largo’s and King Farm’s offers were in the Location

factor, under which King Farm was rated more highly on the Access to Amenities sub-

factor, while One Largo was rated more highly on the Access to Metrorail sub-factor.

Ms. Sias reasoned:

The issue then is whether or not the added technical benefit of being

closer to a Metrorail station, although with fewer amenities, is worth paying

an additional 16.8%, a significant cost increase that amounts to more than

$90 million over the life of the lease. I find that it is not.

Ms. Sias’ analysis with respect to University was similar to the One Largo

analysis. She noted that University’s offer was priced even higher than One Largo’s

offer, and that the differences between University’s offer and King Farm’s offer on the

Access to Metrorail and Access to Amenities sub-factors were even smaller than the

difference between King Farm and One Largo. Ms. Sias stated: “I do not find that the

technical difference in the Location factor, with a Highly Successful overall to UTC

[University] and Successful overall to King Farm merits the additional cost of

$91,690,896.” Thus, even though One Largo and University were rated more highly

overall, Ms. Sias concluded that those two offers did not “have sufficient additional

technical merit to warrant paying the additional costs,” and that King Farm represented

the best overall value to the government.

Pursuant to the Solicitation, the Source Selection Authority was assigned the

responsibility to make the source selection decision in this case. In this case, however,

Cathy Kronopolous, GSA’s Regional Commissioner for the PBS, National Capital

Region, exercised her responsibility as the Head of Contracting Authority for the Region

and made the ultimate source selection determination. According to Ms. Kronopolous,

she exercised her authority because the procurement at issue was the largest lease

acquisition being undertaken by GSA at the time and had attracted a great deal of

political interest. Ms. Kronopolous issued her first written selection decision on March 8,

2011, after having been briefed on both the Source Selection Evaluation Board’s

recommendation and the Source Selection Authority’s decision, and after reviewing the

23

Solicitation, the Source Selection Plan, the Technical Evaluation Teams’ reports, the

Source Selection Evaluation Board’s Report, Addendum, and Award Recommendation,

as well as Ms. Sias’ review. Ms. Kronopolous disagreed with both the Source Selection

Evaluation Board’s recommendation, and the Source Selection Authority’s award

decision, and decided to relieve the Source Selection Authority of her responsibility for

the procurement.

In her March 8, 2011 decision, Ms. Kronopolous initially noted that the Source

Selection Evaluation Board’s sub-factor ratings did not change from its original January

12, 2011 Report to its February 3, 2011 Addendum, and that the Source Selection

Authority also used the same sub-factor ratings as the Source Selection Evaluation

Board. Ms. Kronopolous stated that she also “relied on the sub-factor ratings and

narrative provided in the SSEB report [Source Selection Evaluation Board’s January 12,

2011 Report].” Ms. Kronopolous determined, however, that the Source Selection Plan

did not require rating each offer at the factor level, as the Source Selection Evaluation

Board had done in its February 3, 2011 Addendum and the Source Selection Authority

had done in her written decision. Therefore, Ms. Kronopolous “did not find it necessary

to arrive at factor level ratings.” Finally, Ms. Kronopolous agreed with the Source

Selection Evaluation Board’s overall technical evaluations in its original January 12,

2011 Report, “Superior” for all offerors, except King Farm, which was rated “Highly

Successful” overall. She concluded, however, that “offerors with the same overall rating

[were] not necessarily technically equal.”

Ms. Kronopolous decided that, despite its higher price compared to King Farm,

Fishers Lane represented the best value to the government. Ms. Kronopolous initially

focused on comparing King Farm and Fishers Lane, the two lowest priced offerors. Ms.

Kronopolous indicated that Fishers Lane’s offer had received a “Superior” rating on fifty

percent of the technical sub-factors, and a “Highly Successful” rating on the other fifty

percent. King Farm’s offer, on the other hand, had received a “Superior” rating for fifty-

five percent of technical sub-factors, a “Highly Successful” rating for ten percent, and a

“Marginal” rating for thirty-five percent. Ms. Kronopolous performed the following

comparison of the Fishers Lane and King Farm proposals:

King Farm and Parklawn [Fishers Lane] received identical ratings for Past

Performance (5%), Key Personnel (5%), Number of Buildings (20%), and

Quality of Building Architecture, Systems, and Construction (10%). King

Farm received a rating of Superior for Planning and Efficiency and

Flexibility (15%) while Parklawn received a rating of Highly Successful for

that sub-factor. However, Parklawn received a rating of Superior for

Access to Amenities (10%) while King Farm received a rating of Highly

Successful for that sub-factor. Significantly, Parklawn received a Highly

Successful rating for Access to Metrorail (35%) while King Farm only

received a Marginal rating.

Although Fishers Lane and King Farm received “the same or similar adjectival scores

on all technical sub-factors other than Access to Metrorail,” Ms. Kronopolous

24

determined that the two proposals did not approach technical equality, as the Source

Selection Evaluation Board and the Source Selection Authority had found. Instead, in

her March 8, 2011 selection decision, Ms. Kronopolous concluded that Fishers Lane’s

offer was rated substantially higher on the most important sub-factor, Access to

Metrorail, making it technically superior to King Farm’s offer, as well as the best overall

value to the government, despite its higher price compared to King Farm’s offer.

Ms. Kronopolous then compared Fishers Lane’s offer with University, One Largo

and Metroview’s offers. With respect to University, Ms. Kronopolous decided that the

two offers were “essentially equal from a technical standpoint,” thus University’s

significantly higher price made Fishers Lane’s offer the better value. Regarding One

Largo, Ms. Kronopolous acknowledged that One Largo had received Superior ratings

for eighty-five percent of technical sub-factors, including the three most important sub-

factors, Access to Metrorail (35%), Number of Buildings (20%), and Planning Efficiency

and Flexibility (15%). Ms. Kronopolous also acknowledged that One Largo had

received the highest percentage of “Superior” ratings of any of the offerors. She stated:

“It is clear this offeror [One Largo] presented an attractive technical proposal. I would

even go so far as to conclude that One Largo Metro was higher technically rated than

Parklawn [Fishers Lane].” She stressed, however, that One Largo’s net present value

was calculated to be $4.01 higher per square foot than the lowest priced offer from King

Farm, and $3.09 higher than the offer from Fishers Lane. This price difference

convinced Ms. Kronopolous that Fishers Lane represented a better overall value to the

government than One Largo. She concluded:

While I am again mindful that price in this procurement was significantly

less important that the combined weight of the technical factors, I am

unable to find that the technical advantage represented by One Largo

Metro [percentage increase over Parklawn] overcomes its cost difference

when compared to Parklawn. I find that the Parklawn proposal represents

a greater overall value to the Government than the One Largo Metro

proposal.

(brackets in original).

Finally, Ms. Kronopolous found that Metroview’s offer was rated “Superior” on

eighty percent of sub-factors, a slightly lower percentage than for One Largo, but that

Metroview’s offer was priced even higher than One Largo’s offer. Having determined

that One Largo’s technical superiority did not warrant the additional cost over Fishers

Lane, Ms. Kronopolous found it “equally clear that Parklawn [Fishers Lane] should

prevail over the New Carrollton [Metroview] proposal that is both lower technically rated

and higher priced than One Largo Metro.” Ms. Kronopolous, therefore, concluded in her

March 8, 2011 selection decision that Fishers Lane represented the best value to the

government, and directed the Contracting Officer to award the lease to Fishers Lane

and notify all of the offerors of the selection decision. The Contracting Officer notified

the offerors on March 10, 2011.

25

One Largo, King Farm, and Metroview each filed protests of Defendant’s award

to Fishers Lane with the GAO. The GAO consolidated the protests and stayed award of

the lease while the protests were pending. Each of the three protestors raised

numerous issues. King Farm challenged Defendant’s evaluation of the Access to

Amenities sub-factor in Ms. Kronopolous’ March 8, 2011 selection decision, arguing that

the Solicitation indicated that offers would be evaluated for the “quantity, variety, and

proximity of amenities offered,” but that Defendant had looked only at the number of

amenity categories covered by each offeror. Plaintiff also maintained that, in her March

8, 2011 selection decision, Ms. Kronopolous merely recited offerors’ ratings and prices,

without weighing the specific strengths and weaknesses of each proposal, as required

by the Solicitation. In particular, Plaintiff argued that Ms. Kronopolous did not

sufficiently credit One Largo for its technical superiority in the Access to Metrorail sub-

factor, as compared to Fishers Lane’s proposal, which offered a building nearly five

times as far from the nearest Metrorail station than One Largo’s proposal.

On June 20, 2011, the GAO issued its decision. The GAO sustained the protests

on two grounds: 1) Defendant’s evaluation of the Access to Amenities sub-factor was

inconsistent with the terms of the Solicitation’s provision requiring that offers be

evaluated for both quantity and variety of the amenities offered, and 2) Defendant’s

source selection decision dated March 8, 2011 was based upon a “mechanical

comparison” of the offers’ technical evaluations, and included “no evidence of any

meaningful consideration by the HCA [Ms. Kronopolous] of the evaluated differences in

the firms’ offers.”

With regard to the Access to Amenities sub-factor, the GAO found that the plain

language of the Solicitation required Defendant “to evaluate both the overall number of

amenities offered as well as the number of amenity categories,” and, in particular, to

evaluate the availability of eating facilities. Instead, Defendant had only counted

amenity categories, which had the effect of “ignor[ing] the type of amenity being

offered.” Therefore, the GAO found that Defendant’s “assignment of adjectival ratings

based only upon how many amenity categories were offered was not reasonable,” and

that Defendant’s error prejudiced the protestors.

Regarding Ms. Kronopolous’ March 8, 2011 selection decision, the GAO stressed

that source selection decisions “cannot be based on a mechanical comparison of the

offerors’ technical scores or ratings per se, but must rest upon a qualitative assessment

of the underlying technical differences among competing offers.” (citing The MIL Corp.,

B-294836, Dec. 30, 2004, 2005 CPD ¶ 29 at 8; Opti-Lite Optical, B-281693, Mar. 22,

1999, 99-1 CPD ¶ 61, at 5) (emphasis in original). The GAO found that Ms.

Kronopolous had deviated from the Source Selection Evaluation Board’s and Source

Selection Authority’s analyses and recommendations without explaining her rationale.

“[W]ithout explaining the basis for her disagreement with the conclusions of lower-level

evaluators,” the GAO stated, Ms. Kronopolous “proceeded to make conclusory

pronouncements concerning which proposal offered the best value to the government.”

The GAO found “no evidence of any meaningful consideration by the HCA of the

evaluated differences in the firms’ offers. Rather, the HCA’s tradeoff assessment was

26

based upon a mechanical comparison of the percentage of superior and highly

successful ratings assigned to each offer.”

The GAO emphasized that the Source Selection Evaluation Board’s January 12,

2011 Report included discussion of a number of differences between the various

proposals on each technical sub-factor, which Ms. Kronopolous could have used to

support her analysis and justify her decision to deviate from the Source Selection

Evaluation Board’s and Source Selection Authority’s recommendations. “In the

absence of a documented, meaningful consideration of the technical differences

between the offerors’ proposals, the HCA could not perform a reasonable tradeoff

analysis.” Therefore, the GAO concluded that Ms. Kronopolous “had no basis to

determine that” Fishers Lane’s proposal was more advantageous to the government

than any of the other offerors’ proposals.

The GAO recommended that Defendant: 1) re-evaluate the offers under the

Access to Amenities sub-factor in accordance with the terms of the Solicitation, and 2)

perform and document a new selection decision consistent with the GAO’s decision.

After the GAO issued its decision, Ms. Kronopolous followed the GAO’s advice and re-

evaluated the offers and, on August 24, 2011, issued a second written selection

decision. In her August 24, 2011 selection decision, Ms. Kronopolous again adopted

the findings of the Source Selection Evaluation Board’s January 12, 2011 Report

regarding all technical sub-factors, except Access to Amenities, which she reconsidered

based on the GAO’s findings. With respect to the Access to Amenities sub-factor, Ms.

Kronopolous noted that the Source Selection Evaluation Board’s evaluation was based

upon the chart laid out in the Source Selection Plan, included above. Ms. Kronopolous

explained that, using the Source Selection Plan’s chart, the Source Selection Evaluation

Board “counted the number of amenity categories located within 1,500 wlf and within

2,500 wlf, and assigned the adjectival rating that accorded with the SSP table.” Ms.

Kronopolous indicated that she began her analysis with the Source Selection Evaluation

Board’s findings, but that she also requested Defendant’s “broker”21 to “again research

and document the existence, distance, and hours of operation for all amenities for each

Offeror.” Based on the “GSA broker’s” research, she adjusted the Source Selection

Evaluation Board’s ratings to the extent she felt an adjustment was warranted. In

addition, Ms. Kronopolous explained that, to take into account the number and variety of

amenities offered by each offeror, she “considered not just the total number of amenities

offered, but also the distribution of the quantity among the various amenity categories”

mentioned in the Source Selection Plan. Finally, because the Solicitation emphasized

eating facilities, Ms. Kronopolous paid “special attention to the number of eating

establishments offered.”

21

“Broker” is the term used by Ms. Kronopolous in her August 24, 2011 selection

decision.

27

Therefore, Ms. Kronopolous created a new chart to assess each offer’s Access

to Amenities proposal. She incorporated the following chart regarding One Largo into

her August 24, 2011 selection decision:

Category Within 1,500 WLF Within 2,500 WLF

Restaurants

Fast Food 3 3

Day Care

Fitness Facility

Dry Cleaners

Bank/ATM 1

Postal Facility

Convenience Shop 1 1

Cards/Gift Shop 3

Hair Salons 1

Automotive Service

Stations

Drug Stores

Total Amenities 4 9

Total Categories 2 5

Based on this new chart, Ms. Kronopolous found that, according to the Source Selection

Plan, One Largo should receive only a “Successful” rating because it had at least five

amenities from the listed categories within 2,500 walkable linear feet. Ms. Kronopolous

added to her analysis, as follows:

While there are a good number of amenities and a few food options within

close proximity of the site, the site lacks a variety of additional amenities.

This lack of variety limits the errands and personal tasks that employees

can accomplish before and after work or during their lunch break.

Compounding this is the fact that 3 of the total amenities are card/gift

shops. Because of the lack of variety of amenities, taking the variety,

quantity, hours and proximity of amenities into consideration, I find that

One Largo Metro merits a rating of Successful for this subfactor.

28

Ms. Kronopolous included the following chart of Fishers Lane’s offered amenities:

Category Within 1,500 WLF Within 2,500 WLF

Restaurants

Fast Food 4 5

Day Care

Fitness Facility

Dry Cleaners 1 2

Bank/ATM 2 2

Postal Facility 1 1

Convenience Shop 1 1

Cards/Gift Shop 1 1

Hair Salons 1 2

Automotive Service 7 9

Stations

Drug Stores

Total Amenities 18 23

Total Categories 8 8

Ms. Kronopolous stated that Fishers Lane should receive a “Highly Successful” rating

on the Access to Amenities sub-factor, according to the Source Selection Plan, because

it had at least eight amenities within 2,500 walkable linear feet. She added: “In fact,

these same amenity categories are found within 1,500 wlf, offering even better access

for employees.” Ms. Kronopolous highlighted the number of eating establishments

within 2,500 walkable linear feet of Fishers Lane’s building, while indicating that she

only gave credit for a few of the nine automotive service stations offered, because

additional stations added only quantity, not quality. She concluded: “Because of the

variety, quantity, hours and proximity of amenities, I find that Parklawn [Fishers Lane]

merits a rating of Highly Successful approaching Superior for this subfactor.”

Ms. Kronopolous rated King Farm “Highly Successful approaching Superior” on

the Access to Amenities sub-factor, based on her finding that it offered twelve total

amenities in eight amenity categories within 1,500 walkable linear feet, and sixteen total

amenities in ten amenity categories within 1,500 walkable linear feet. Metroview

received a “Marginal” rating, as Ms. Kronopolous found it offered only four total

amenities in three amenity categories within 1,500 walkable linear feet, and no

additional amenities within 2,500 walkable linear feet. Finally, Ms. Kronopolous rated

University as “Superior” on this sub-factor, finding that University offered thirteen total

amenities in eight amenity categories within 1,500 walkable linear feet, and twenty-nine

total amenities in eleven amenity categories within 2,500 walkable linear feet. Although

this put University in the “Highly Successful” category according to the Source Selection

Plan, Ms. Kronopolous raised the rating to “Superior” based on the “significant variety”

of amenities offered, and the large number of eating facilities within close proximity of

the building.

29

After reassessing each offer under the Access to Amenities sub-factor, Ms.

Kronopolous turned to performing a new best value analysis and making a new

selection decision. The final sub-factor ratings she considered for each offeror were as

follows:

Location Building Characteristics Past Performance/Key

Personnel

Access to Access to Number of Planning Quality of Past Key

Metrorail Amenities Buildings Efficiency Building Performance Personnel

(35%) (10%) (20%) and Architecture, (5%) (5%)

Flexibility Systems,

(15%) Construction

(10%)

King Farm Marginal Highly Superior Superior Superior Superior Superior

Successful

approaching

Superior

New Superior Marginal Superior Superior Superior Neutral Highly

Carrollton Successful

One Largo Superior Successful Superior Superior Superior Neutral Superior

Metro

Parklawn Highly Highly Superior Highly Superior Superior Superior

Successful Successful Successful

approaching

Superior

University Highly Superior Superior Superior Highly Superior Highly

Town Successful Successful Successful

Center

Ms. Kronopolous, once again, adopted the specific strengths and weaknesses of each

offer contained in the Source Selection Evaluation Board’s January 12, 2011 Report,

noting that these remained the same in the Source Selection Evaluation Board’s

February 3, 2011 Addendum. Factoring in her assessment of the Access to Amenities

sub-factor, Ms. Kronopolous concluded that “the overall technical merits and ratings of

the offers” had not changed from her first decision. Ms. Kronopolous did not include

factor-level technical ratings. She again adopted the overall technical ratings contained

in the Source Selection Evaluation Board’s January 12, 2011 Report, which rated all of

the offerors as “Superior” overall, except King Farm, which was rated “Highly

Successful.” Ms. Kronopolous stated that, heeding the advice of the GAO, her new

trade-off analysis “look[ed] beyond the SSEB’s adjectival ratings to identify, review and

examine the strengths and weaknesses of each technical offer, and given those

strengths and weaknesses, to determine the relative technical merits of the offers.”

Ms. Kronopolous’ August 24, 2011 selection decision discussed each technical

sub-factor and compared all five offerors’ technical ratings on each sub-factor. Starting

with Access to Metrorail, Ms. Kronopolous stated that “One Largo is the strongest offer

in this important sub-factor, [sic] I also find that New Carrollton [Metroview] (1,280 wlf),

Parklawn [Fishers Lane] (2,407 wlf) and UTC [University] (2,350 wlf) are all within what

GSA considers to be reasonable walkable distance to Metro.” Ms. Kronopolous found

that King Farm, on the other hand, was a “substantially greater distance” from the

30

Metro, a weakness which was not overcome by its provision of shuttle bus service.

Regarding Access to Amenities, Ms. Kronopolous stated that, although University stood

out in terms of quantity, the offers of University, Fishers Lane, and King Farm “are the

strongest while One Largo Metro and New Carrollton [Metroview] are weaker due to the

fewer amenity categories offered.”

Ms. Kronopolous considered the three sub-factors under the Building

Characteristics factor together, stating: “The SSEB rated all offerors Superior in all three

categories, with the exception of Highly Successful ratings of Parklawn [Fishers Lane]

for Planning Efficiency and Flexibility, and of UTC [University] for Quality of Building

Architecture, Systems and Construction.” Ms. Kronopolous found that “the lower rating

of Parklawn for Planning Efficiency and Flexibility is justified by the building’s tight

column spacing that will affect future space planning and flexibility.” Ms. Kronopolous

noted, however, that “notwithstanding its adjectival rating, the layout of One Largo’s

building has non-uniform column spacing and a non-rectangular floor plate” and King

Farm also had non-uniform column spacing. She determined that “these weaknesses

are not of such severity as to detract from the overall quality of the offers, which were all

technically very strong in the Building Characteristics category.”

Finally, Ms. Kronopolous reiterated that the Source Selection Evaluation Board

had rated all offerors as either “Superior” (King Farm, Fishers Lane, and University) or

“Neutral” (Metroview and One Largo) on the Past Performance sub-factor, and as either

“Superior” (One Largo, Fishers Lane, and King Farm) or “Highly Successful” (Metroview

and University) on the Key Personnel sub-factor. Ms. Kronopolous found that, “[t]he

high ratings for this category reflect the strength of the proposed development teams of

all of the offerors, and the relatively minor differences which separate one offer from

another.”

Based on all of the technical sub-factors, Ms. Kronopolous found in her August

24, 2011 selection decision that the offers of Metroview, Fishers Lane, One Largo, and

University were “all of very high quality, and as a whole approach technical equality.”

Ms. Kronopolous determined, however, that King Farm deserved a lower overall

technical rating because of its significant weakness on the most important sub-factor,

Access to Metrorail.

Ms. Kronopolous then explained in more detail why she concluded that King

Farm did not approach technical equality with the other four offers. In particular, she

noted that “GSA considers 2,500 wlf to be a reasonable walking distance from a Metro

station to a federally occupied office building. If a location is further than this, it merits a

lower technical rating.” Ms. Kronopolous further explained the benefit of being within a

reasonable walking distance of 2,500 walkable linear feet, stating:

I find that being within reasonable walking distance to the Metro provides

a measurable benefit to the Government. It will allow for easier, more

convenient access for commuting, will allow HHS to reduce its carbon

footprint, and will allow HHS employees quick and efficient access to the

31

Metrorail for business purposes, an important consideration for tenant

agency.

Because King Farm was located farther than 2,500 walkable linear feet from a Metrorail

station, outside of a reasonable walking distance, Ms. Kronopolous determined that it

warranted only a “Marginal” rating on the Access to Metrorail sub-factor. Because King

Farm was the only offer to receive such a low rating on the most important sub-factor,

Ms. Kronopolous concluded that it was of a lower technical quality than the other four

offers.

Turning to the four offerors with an overall “Superior” rating, Ms. Kronopolous

concluded that “the significantly lower price of the Parklawn [Fishers Lane] offer makes

it the most advantageous to the Government on a Best Value basis.” She conducted a

comparison of Fishers Lane’s offer with each of the other offers, beginning with One

Largo. The section of her August 24, 2011 selection decision labeled “Parklawn v. One

Largo Metro” stated, in its entirety:

The areas of technical difference between Parklawn [Fishers Lane] and

One Largo Metro are in the following sub-factors: Access to Metro, Access

to Amenities, and Planning Efficiency and Flexibility.

One Largo Metro is less than 525 walkable linear feet to the Largo Town

Center Metro Station while Parklawn is 2,407 wlf from the Twinbrook

Metro Station. One Largo Metro therefore provides very easy access to

Metro, while Parklawn is further away, but within the standard walkable

distance to public transportation as established in other GSA

procurements. Therefore, I find that at either One Largo or Parklawn,

employees will be able to conveniently get to the Metro both for

commuting from/to home, and to go to meetings at other HHS locations

throughout the day providing a cost savings to the Government because

providing other means of transportation to the Metro and other HHS

locations will not be necessary.

Parklawn offers a greater variety and quantity of amenities with better

hours and closer proximity than One Largo. Looking at the total number of

amenities and the number of amenity categories within 2,500 walkable

linear feet, it is evident that Parklawn provides ample access to various

eating establishments and better access to a variety of other employee

service amenities. This will allow employees multiple food choices and

the ability to conduct errands, as necessary, before and after work and

during their lunch breaks. While One Largo Metro has a large total

number of amenities, there is a lack of variety of other employee service

amenities and a duplication of amenities within amenity categories.

With respect to the building’s planning efficiency and flexibility, Parklawn

has a significant weakness with respect to its tight column spacing. This

32

will negatively affect space planning and flexibility in future lease years.

One Largo Metro has larger column spacing; however, there are other

aspects of the space planning at One Largo Metro that will have a

negative effect on space planning and flexibility such as the non-uniform

column spacing and the non-rectangular floor plate.

One Largo Metro is $3.09 per square foot more than Parklawn, and

$51,156,702 more over the life of the lease.22 The technical merit

achieved by the proposal for One Largo Metro with respect to Access to

Metro and Planning Efficiency and Flexibility is not worth the additional

cost over Parklawn because: while One Largo Metro is closer to the

Metro, the distance of Parklawn to the Metro is considered by GSA to be

within easy walking distance; One Largo Metro also has Planning

Efficiency and Flexibility limitations such that the difference between the

two offers in this sub-factor is slight. Plus, Parklawn’s rating on the

Access to Amenities sub-factor exceeds that of One Largo Metro. The

much greater expense of One Largo Metro for an offer that may have a

small technical advantage over Parklawn does not represent the best

value to the Government.

In a footnote in her August 24, 2011 selection decision, Ms. Kronopolous

elaborated on what she considered a “reasonable walkable distance” and why she felt

the difference between Fishers Lane and One Largo was not that great on the Access

to Metrorail sub-factor:

In assessing the real world impact of this discrepancy in distance, I came

to understand, from various internet websites, that the walking speed of

the average adult is between 3 and 3.5 miles per hour. Using the lower

number, it would take about 9.45 to 9.5 minutes to walk 2,500 walkable

linear feet. Therefore, most employees will be able to walk the distance

from Metro to the Parklawn [Fishers Lane] Building in less than 10

minutes. In my judgment a 10 minute walk will not be a major barrier

preventing employees from commuting by Metro.

22

Defendant’s counsel stated at oral argument that the total cost of the lease would be

$431,715,162.00 for Fishers Lane’s proposal, while the total cost of the lease in One

Largo’s proposal would have been $482,871,864.00. Defendant arrived at those

numbers by multiplying the total annual rent per square foot, by the total rentable

square footage for each offer, dividing by twelve to get the rent per month, and then

factoring in the months of free rent offered by each offeror, as well as commission

credits. Those numbers do not appear in Ms. Kronopolous’ decision or in the

Administrative Record before the court.

33

After performing a similar comparison of Fishers Lane’s proposal with the

remaining offers, University, Metroview, and King Farm, Ms. Kronopolous again

concluded in her August 24, 2011 selection decision that Fishers Lane represented the

best overall value to the government. She emphasized that she was selecting the

lowest priced offer among the four offerors that had received overall “Superior” ratings.

Ms. Kronopolous specifically noted that the “cost difference ($51,156,702 over the life of

the lease) between Parklawn [Fishers Lane] and One Largo Metro is too great a delta to

overcome the minor benefits of closer access to the Metro, especially given that

Parklawn does provide convenient walkable distance to a Metro.” Ms. Kronopolous,

once again, instructed the Contracting Officer to award the lease to Fishers Lane. On

August 24, 2011, the lease was awarded to Fishers Lane and all other offerors were

notified accordingly.

One Largo, King Farm, and Metroview again protested the award at the GAO.

The GAO again consolidated the protests. The parties raised numerous challenges to

Defendant’s decision to award the contract to Fishers Lane. Specifically, Plaintiff raised

the following issues: 1) Defendant failed to credit One Largo with its advantage in

Access to Metrorail, 2) Defendant discredited One Largo’s superiority in Planning

Efficiency and Flexibility, 3) Defendant conducted its trade-off analysis in a manner

inconsistent with the Solicitation, and 4) Defendant did not base the award on the

Source Selection Official’s independent judgment.

Responding to these protests, Ms. Kronopolous submitted a declaration to the

GAO on October 6, 2011. In it, she explained the reasons for her decision to again

award the lease to Fishers Lane. She stated: “I determined that the technical offers of

New Carrollton [Metroview], Parklawn [Fishers Lane], UTC [University] and One Largo

were all of very high quality, and as a whole, approach equality. Therefore, price

became a more important factor.” Responding directly to One Largo’s argument that

her trade-off analysis was wrong because she weighed price too heavily, Ms.

Kronopolous stated:

As made clear in my August 24 decision, and consistent with the SFO

[Solicitation] and SSP, the degree of importance of price as a factor

increases as technical offers approach equality. Since my evaluation

determined that the OLM [One Largo Metro] and Parklawn [Fisher Lane]

offers approached technical equality, the importance of price in the trade-

off analysis properly and rationally became more important. To put it

another way, I did not find that the cost difference could be justified, where

the perceived difference in the value of the offers to the Government was

not commensurate.

The GAO held two days of hearings in conjunction with this protest on November

1 and November 2, 2011, during which Ms. Kronopolous gave extensive testimony.

When asked by Plaintiff’s counsel at the GAO hearing about her statement in her

August 24, 2011 selection decision that 2,500 feet is considered a reasonable walking

distance, Ms. Kronopolous testified:

34

Q: And what is beyond your footnote 6 that supports the notion that

GSA considers 2500 feet to be a reasonable walking distance?

A: In other solicitations, we use the same standard. So it is something

that we have used consistently to be beyond that you need a shuttle, so

it’s walkable.

Q: If I understand you right, you say in other solicitations, GSA uses

the same standard. Is the same standard that anything within 2500 feet is

a reasonable walking distance?

A: That’s the implicit, yes. And that’s how I’m interpreting it, yes.

Q: You say “implicit.” In those other solicitations, does it expressly say

that within 2500 feet is a reasonable walking distance?

A: It doesn’t use those words. I don’t know if it uses those words,

frankly.

Ms. Kronopolous was later asked about the 2,500 feet standard by counsel for

Metroview. She responded:

Q: Can you cite to any particular internal GSA policy or regulation such

as the GSAR [General Services Administration Acquisition Regulations] or

the GSAM [General Services Administration Acquisition Manual] that

might have that measurement or standard in it that we could refer to?

A: I don’t know if it exists there. I do know that it’s -- I don’t know if I

would call it a policy, but it’s definitely practice. So if -- and I’m sure -- so

it’s a practice in the solicitations themselves. I’m not aware of a document

where it’s captured.

Q: So you’re not aware of any particular written practice; am I correct?

A: I’m not aware, yes.

In addition, Ms. Kronopolous was asked by Defendant’s counsel to explain her

evaluation of Plaintiff’s and Fishers Lane’s offers on the Planning Efficiency and

Flexibility sub-factor. She stated that, in conducting her trade-off analysis, she went

beyond the adjectival ratings to look at the real differences between the two offers.

Q: And when you did that process, was there any findings or

conclusions you reached that affected how you did the trade-off analysis

or affected your evaluation?

35

A: To some extent, yes, because looking at the -- the technical

components of planning and efficiency and flexibility, there’s, like, five.

Core factor, building floor plate, building column spacing, which is what

the deficiency was for Fishers Lane. So what I looked at was the

assessment in the SSEB. I looked at the technical evaluation write-up as

well, and they did make a little distinction among themselves. But overall,

what I found was I agreed that there was a deficiency, there was a

significant weakness for Fishers Lane in the column spacing. So that was

a fact, and it was valid, and it warranted the adjectival rating of highly

successful. That said, when I looked at the factors, all the factors for

planning and evaluation, it wasn’t a go/no-go for column spacing. There

were other factors under consideration. And so four of them they met,

plus there were additional considerations under an “other” category of

which they had some strengths as well. So I looked at the significant

strengths, minor strengths, the significant weaknesses, the minor

weaknesses. And on the whole, I found that the differential from the

adjectival rating did not necessarily help understand -- help present the

true distinction. And I thought that the true distinction was not as

significant. Given that this was, you know, like the third rated overall kind

of importance for planning and the efficiency and flexibility and that they

were able to achieve a great deal of those.

Q: Was it your conclusion that there was no distinction?

A: No, I think there’s a distinction, yeah. Clearly, there’s a distinction.

There was no significant weakness in One Largo, so that’s -- absolutely. I

was just looking at, okay, looking beyond that, go deeper, what are the

benefits, what are the technical advantages, what are the technical

disadvantages of each offeror, and there was -- it was not as great of a

distinction as the adjectival ratings implied.

Asked specifically about the two minor weaknesses that she had cited as “limitations” of

One Largo’s offer, but which she had failed to mention were shared by Fishers Lane’s

proposal, Ms. Kronopolous testified:

Q: And can you explain the logic of where both had the same two

weaknesses, why that would make the difference between -- the rationale

for why that would make the difference between superior and highly

successful only slight?

A: Sure. I actually didn’t approach it that way. I didn’t look at it that

way. So what I looked at was there were some minor weaknesses in One

Largo’s as well, and those were two examples. So it was not to say that it

negates every -- it kind of counterweights and gives more advantage to

Fishers Lane. So my slight advantage was much more about, even

though I just acknowledged that there were some minor weaknesses

36

there, it was much more about the factor, if you look at the SFO

[Solicitation] and all the criteria that you look at in the planning and

efficiency and flexibility subfactor, that -- its -- the column spacing is still

just one of a number of criteria that they were looking for, that we were

looking for.

On December 5, 2011, the GAO denied the consolidated offerors’ protests

because the GAO found that Ms. Kronopolous’ decision was not unreasonable. In

terms of the Access to Metrorail sub-factor, the GAO emphasized that agency ratings

“are merely guides for intelligent decisionmaking.” The GAO found that Ms.

Kronopolous had “looked beyond the adjectival ratings to determine the practical

aspects of the distances from a Metrorail station.” The GAO concluded, “[t]he HCA was

not unreasonable in concluding, consistent with the SFO [Solicitation], that any distance

shorter than 2,500 wlf was a reasonable walking distance.” The GAO relied on the

Solicitation’s distinction between offers that were within 2,500 walkable linear feet and

those that were farther away, which required that shuttle service be provided for any

building beyond 2,500 walkable linear feet. The GAO reasoned that this distinction in

the Solicitation “indicated that the SFO contemplated that distances shorter than 2,500

were reasonable walking distances.” In addition, the GAO found that Ms. Kronopolous

had recognized One Largo’s superiority over Fishers Lane with respect to this sub-

factor, and that she had concluded that One Largo’s technical superiority “did not merit

the additional cost to the government.” In sum, the GAO concluded, “[a]lthough the

protestors’ disagree with the HCA’s decision in this regard, this disagreement does not

show that her judgment was unreasonable.”

The GAO also rejected Plaintiff’s argument that Ms. Kronopolous had minimized

One Largo’s superiority in Planning Efficiency and Flexibility relative to Fishers Lane’s

offer. Specifically, One Largo and Metroview both argued that Ms. Kronopolous was

unreasonable in finding that the significant weakness in Fishers Lane’s proposal, tight

column spacing, was nearly matched by the minor weaknesses in One Largo’s and

Metroview’s proposals, non-rectangular floor plans and non-uniform column spacing,

because Fishers Lane’s proposal also was found by the Source Selection Evaluation

Board to have those exact same minor weaknesses. The GAO found that Ms.

Kronopolous made no mention in her August 24, 2011 selection decision of the fact that

Fishers Lane’s proposal was found to have the same minor weaknesses as One

Largo’s and Metroview’s proposals. Moreover, the GAO acknowledged that Ms.

Kronopolous was not able to articulate an explanation for this omission in her testimony

at the GAO hearing. The GAO, however, concluded that:

[T]he record does not demonstrate that the protestors were competitively

prejudiced by the HCA’s actions. The SSEB report assessed significant

and minor strengths and weaknesses to each proposal, which the HCA

reviewed and adopted in making her tradeoff and selection decision. . . .

The weaknesses in dispute were only two among many criteria the SSEB

considered under this subfactor, which itself was only weighted 15

percent.

37

Finally, the GAO addressed the protestors’ arguments that Ms. Kronopolous had

improperly considered price in her trade-off analysis. One Largo and Metroview had

argued that Ms. Kronopolous gave undue weight to the lower price of Fishers Lane’s

proposal, while failing to give necessary weight to One Largo’s and Metroview’s

technical superiority in the most important sub-factor, Access to Metrorail. The GAO

found that Ms. Kronopolous had concluded in her August 24, 2011 selection decision

that the proposals of One Largo, Metroview, and Fishers Lane were “not equal, but

approaching technical equality,” and thus price should be a greater factor in comparing

those proposals. The GAO found Ms. Kronopolous’ “consideration of the firms’

respective proposed prices to be consistent with the SFO [Solicitation].” The GAO,

therefore, determined that the protestors had failed to demonstrate that Defendant’s

decision was unreasonable and denied the protests. King Farm requested

reconsideration of GAO’s decision, but reconsideration was denied.

Thereafter, One Largo filed the present post-award bid protest in the United

States Court of Federal Claims, claiming that Defendant’s evaluation of the Access to

Metrorail and Planning Efficiency and Flexibility sub-factors was arbitrary, capricious,

and contrary to law. Specifically, Plaintiff alleges that Ms. Kronopolous’ imposition of a

2,500 walkable linear feet standard as the basis for evaluating the Access to Metrorail

sub-factor was inconsistent with the Solicitation’s requirement that “buildings closer to

an existing Metrorail station [be] evaluated more highly.” (brackets in original). In

addition, Plaintiff contends that Ms. Kronopolous’ alleged discounting of Plaintiff’s

advantage over Fishers Lane in the Planning Efficiency and Flexibility sub-factor as

“slight” on the basis of two minor weaknesses, which Fishers Lane’s proposal also had

been assigned, was arbitrary and capricious. Plaintiff acknowledges that Ms.

Kronopolous was permitted to disagree with the Source Selection Evaluation Board’s

evaluation of offerors’ technical ratings, but insists that she was required to set forth a

rational basis for doing so at the time of her decision, and that any post hoc rationale is

insufficient to support her decision. Plaintiff also alleges that its proposal was rated

superior to Fishers Lane’s proposal in the two most heavily weighted sub-factors,

Access to Metrorail, worth thirty-five percent of the total, and Planning Efficiency and

Flexibility, worth fifteen percent of the total, while Fishers Lane’s proposal was rated

more highly than Plaintiff’s proposal on just the Access to Amenities sub-factor, which

was only worth ten percent of the total. Given Plaintiff’s superiority on the Access to

Metrorail and Planning Efficiency and Flexibility sub-factors, One Largo argues,

Defendant could not, consistent with the Solicitation’s requirement that price be given

“significantly less importance than the combined weight of the technical factors,”

conclude that Fishers Lane’s proposal was more advantageous than Plaintiff’s proposal.

Plaintiff alleges, therefore, that Defendant’s August 24, 2011 selection decision was

arbitrary and capricious, and but for Defendant’s error, Plaintiff should have been

awarded the contract. Plaintiff has moved for judgment on the Administrative Record,

and seeks reimbursement of bid and proposal costs in the amount of $4,038,739.00.23

23

Plaintiff’s Complaint references other forms of declaratory and monetary relief, but, at

oral argument, Plaintiff’s counsel stated that Plaintiff only is seeking bid preparation

costs and not any other form of relief.

38

Defendant filed a cross-motion for judgment on the Administrative Record, and

argues that Ms. Kronopolous’ decisions with regard to the Access to Metrorail and

Planning Efficiency and Flexibility sub-factors were reasonable. According to Defendant,

Ms. Kronopolous’ determination that Fishers Lane’s proposal approached equality with

Plaintiff’s proposal, as well as her trade-off analysis, were consistent with the

Solicitation. According to Defendant, the portion of the Solicitation requiring that

proposals closer to Metrorail be rated more highly only dictated how the Agency was to

evaluate the Access to Metrorail sub-factor, not how Defendant should conduct its

trade-off analysis. Regarding the Planning Efficiency and Flexibility sub-factor,

Defendant argues that Ms. Kronopolous’ analysis was reasonable because she

acknowledged Plaintiff’s superiority on the technical sub-factor, but decided it was not

sufficient to warrant the significant price difference between the two proposals.

Moreover, Defendant argues that, even if Ms. Kronopolous’ review of One Largo’s

technical merit on the Planning Efficiency and Flexibility sub-factor was flawed, Plaintiff

was not prejudiced by Defendant’s actions and, thus, is not entitled to any relief in this

court. Finally, Defendant maintains that Ms. Kronopolous’ trade-off analysis was

reasonable. Citing Windall v. B3H Corp., F.3d 1577, 1580 (Fed. Cir. 1996), Defendant

states that even if an “alternative evaluation scheme” would yield a different result, that

does not make the approach used by Ms. Kronopolous arbitrary, capricious, or contrary

to law.

DISCUSSION

Standard of Review

Pursuant to Rule 52.1(c) of the Rules of the United States Court of Federal

Claims (RCFC) (2012), which governs motions for judgment on the Administrative

Record, the court’s inquiry is “whether, given all the disputed and undisputed facts, a

party has met its burden of proof based on the evidence in the record.” DMS All-Star

Joint Venture v. United States, 90 Fed. Cl. 653, 661 (2010) (citing Bannum, Inc. v.

United States, 404 F.3d 1346, 1356-57 (Fed. Cir. 2005)).

The Administrative Dispute Resolution Act of 1996 (ADRA), Pub. L. No. 104-320,

§§ 12(a), 12(b), 110 Stat. 3870, 3874 (1996) (codified at 28 U.S.C. § 1491(b)(1)-(4)

(2006)), amended the Tucker Act to establish a statutory basis for bid protests in the

United States Court of Federal Claims. See Impresa Construzioni Geom. Domenico

Garufi v. United States, 238 F.3d 1324, 1330-32 (Fed. Cir. 2001). The statute provides

that protests of agency procurement decisions are to be reviewed under Administrative

Procedure Act (APA) standards, making applicable the standards outlined in Scanwell

Laboratories, Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), and the line of cases

following that decision. See, e.g., Galen Med. Assocs., Inc. v. United States, 369 F.3d

1324, 1329 (Fed. Cir.) (citing to Scanwell Laboratories, Inc. v. Shaffer for its reasoning

that “suits challenging the award process are in the public interest and disappointed

bidders are the parties with an incentive to enforce the law”), reh’g denied (Fed. Cir.

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

39

2004) (“Under the APA standard as applied in the Scanwell line of cases, and now in

ADRA cases, ‘a bid award may be set aside if either (1) the procurement official's

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

regulation or procedure.’” (quoting Impresa Construzioni Geom. Domenico Garufi v.

United States, 238 F.3d at 1332)); Info. Tech. & Applications Corp. v. United States, 316

F.3d 1312, 1319 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2003); Am. Fed’n

of Gov’t Emps. v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001) (“Congress

intended to extend the jurisdiction of the Court of Federal Claims to include post-award

bid protest cases brought under the APA by disappointed bidders, such as the plaintiff

in Scanwell.”), cert. denied, 534 U.S. 1113 (2002). The United States Court of Appeals

for the Federal Circuit has stated that the Court of Federal Claims’ jurisdiction over “any

alleged violation of statute or regulation in connection with a procurement or a proposed

procurement,” 28 U.S.C. § 1491(b)(1), “provides a broad grant of jurisdiction because

‘[p]rocurement includes all stages of the process of acquiring property or services,

beginning with the process for determining a need for property or services and ending

with contract completion and closeout.’” Sys. Application & Techs., Inc. v. United

States, 691 F.3d 1374, 1381 (Fed. Cir. 2012) (emphasis in original) (quoting Res.

Conservation Grp., LLC v. United States, 597 F.3d 1238, 1244 (Fed. Cir. 2010) (quoting

41 U.S.C. § 403(2))); see also Distrib. Solutions, Inc. v. United States, 539 F.3d 1340,

1345 (Fed. Cir.) (“[T]he phrase, ‘in connection with a procurement or proposed

procurement,’ by definition involves a connection with any stage of the federal

contracting acquisition process, including ‘the process for determining a need for

property or services.’”), reh’g denied (Fed. Cir. 2008); RAMCOR Servs. Grp., Inc. v.

United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999) (“The operative phrase ‘in

connection with’ is very sweeping in scope.”).

Agency procurement actions should be set aside when they are “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law,” or “without

observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (2)(D) (2006);24 see

24

The language of 5 U.S.C. § 706 provides:

To the extent necessary to decision and when presented, the reviewing

court shall decide all relevant questions of law, interpret constitutional and

statutory provisions, and determine the meaning or applicability of the

terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed;

and

(2) hold unlawful and set aside agency action, findings, and

conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

40

also Orion Tech., Inc. v. United States, No. 2012-5062, 2013 WL 141740, at *3 (Fed.

Cir. Jan. 14, 2013); COMINT Sys. Corp. v. United States, 700 F.3d 1377, 1381 (Fed.

Cir. 2012); Savantage Fin. Servs. Inc., v. United States, 595 F.3d 1282, 1285-86 (Fed.

Cir. 2010); Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009);

Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (noting

arbitrary and capricious standard set forth in 5 U.S.C. § 706(2)(A), and reaffirming the

analysis of Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at

1332); Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1312 (Fed. Cir. 2007)

(“[T]he inquiry is whether the [government’s] procurement decision was ‘arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.’” (quoting 5

U.S.C. § 706(2)(A) (2000))); Bannum, Inc. v. United States, 404 F.3d at 1351;

Contracting, Consulting, Eng’g LLC v. United States, 104 Fed. Cl. 334, 340 (2012). “In

a bid protest case, the agency's award must be upheld unless it is ‘arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law.’” Turner Constr. Co. v.

United States, 645 F.3d 1377, 1383 (Fed. Cir.) (quoting PAI Corp. v. United States, 614

F.3d 1347, 1351 (Fed. Cir. 2010)), reh’g and reh’g en banc denied (Fed. Cir. 2011); see

also PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 531–32 (2010) (“Stated

another way, a plaintiff must show that the agency’s decision either lacked a rational

basis or was contrary to law.” (citing Weeks Marine, Inc. v. United States, 575 F.3d at

1358)).

In discussing the appropriate standard of review for bid protest cases, the United

States Court of Appeals for the Federal Circuit specifically has addressed subsections

(2)(A) and (2)(D) of 5 U.S.C. § 706, see Impresa Construzioni Geom. Domenico Garufi

v. United States, 238 F.3d at 1332 n.5, but the Federal Circuit has focused its attention

primarily on subsection (2)(A). See NVT Techs., Inc. v. United States, 370 F.3d 1153,

1159 (Fed. Cir. 2004) (“Bid protest actions are subject to the standard of review

established under section 706 of Title 5 of the Administrative Procedure Act (‘APA’), 28

(C) in excess of statutory jurisdiction, authority, or limitations, or

short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to

sections 556 and 557 of this title or otherwise reviewed on the

record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject

to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole

record or those parts of it cited by a party, and due account shall be taken

of the rule of prejudicial error.

5 U.S.C. § 706.

41

U.S.C. § 1491(b)(4) (2000), by which an agency's decision is to be set aside only if it is

‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ 5

U.S.C. § 706(2)(A) (2000).”) (citations omitted); Banknote Corp. of Am., Inc. v. United

States, 365 F.3d at 1350 (“Among the various APA standards of review in section 706,

the proper standard to be applied in bid protest cases is provided by 5 U.S.C.

§ 706(2)(A): a reviewing court shall set aside the agency action if it is ‘arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.’” (citing

Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057-58 (Fed. Cir.),

reh’g denied (Fed. Cir. 2000))); Info. Tech. & Applications Corp. v. United States, 316

F.3d at 1319 (“Consequently, our inquiry is whether the Air Force's procurement

decision was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.’ 5 U.S.C. § 706(2)(A) (2000).”).

The United States Supreme Court has identified sample grounds which can

constitute arbitrary or capricious agency action:

[W]e will not vacate an agency’s decision unless it “has relied on factors

which Congress has not intended it to consider, entirely failed to consider

an important aspect of the problem, offered an explanation for its decision

that runs counter to the evidence before the agency, or is so implausible

that it could not be ascribed to a difference in view or the product of

agency expertise.”

Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (quoting

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983));

see also Alabama Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372,

1375 (Fed. Cir. 2009), reh’g and reh’g en banc denied (Fed. Cir. 2010); In re Sang Su

Lee, 277 F.3d 1338, 1342 (Fed. Cir. 2002) (“The agency must present a full and

reasoned explanation of its decision . . . . The reviewing court is thus enabled to

perform a meaningful review . . . .”), aff’d on subsequent appeal, 262 F. App’x 275 (Fed.

Cir. 2008); Textron, Inc. v. United States, 74 Fed. Cl. 277, 285-86 (2006), appeal

dismissed sub nom. Textron, Inc. v. Ocean Technical Servs., Inc., 222 F. App’x 996

(Fed. Cir. 2007), and dismissed per stipulation sub nom. Textron, Inc. v. Ocean

Technical Servs., Inc., 223 F. App’x 974 (Fed. Cir. 2007). The United States Supreme

Court has also cautioned, however, that “courts are not free to impose upon agencies

specific procedural requirements that have no basis in the APA.” Pension Benefit Guar.

Corp. v. LTV Corp., 496 U.S. 633, 654 (1990).

A disappointed bidder has the burden of demonstrating the arbitrary and

capricious nature of the agency decision by a preponderance of the evidence. See

Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 995-96 (Fed. Cir. 1996); Contracting,

Consulting, Eng’g LLC v. United States, 104 Fed. Cl. at 340; Textron, Inc. v. United

States, 74 Fed. Cl. at 285; Labat-Anderson Inc. v. United States, 50 Fed. Cl. 99, 106

(2001); Emery Worldwide Airlines, Inc. v. United States, 49 Fed. Cl. 211, 222, aff’d, 264

F.3d 1071 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2001); Dynacs Eng’g

Co. v. United States, 48 Fed. Cl. 614, 619 (2001); Ellsworth Assocs., Inc. v. United

42

States, 45 Fed. Cl. 388, 392 (1999), dismissed, 6 F. App’x 867 (Fed. Cir. 2001). The

Federal Circuit has made clear that “[t]his court will not overturn a contracting officer's

determination unless it is arbitrary, capricious, or otherwise contrary to law. To

demonstrate that such a determination is arbitrary or capricious, a protester must

identify ‘hard facts;’ a mere inference or suspicion . . . is not enough.” PAI Corp. v.

United States, 614 F.3d at 1352 (citing John C. Grimberg Co. v. United States, 185 F.3d

1297, 1300 (Fed. Cir. 1999); C.A.C.I., Inc.-Fed. v. United States, 719 F.2d 1567, 1581

(Fed. Cir. 1983); and Filtration Dev. Co., LLC v. United States, 60 Fed. Cl. 371, 380

(2004)).

Furthermore, to prevail in a bid protest case, the protestor not only must show

that the government’s actions were arbitrary, capricious, or otherwise not in accordance

with the law, but the protestor also must show that it was prejudiced by the

government’s actions. See 5 U.S.C. § 706 (“[D]ue account shall be taken of the rule of

prejudicial error.”). Recognizing the two-step analysis of bid protest cases, the Federal

Circuit has stated that:

A bid protest proceeds in two steps. First . . . the trial court determines

whether the government acted without rational basis or contrary to law

when evaluating the bids and awarding the contract. Second . . . if the

trial court finds that the government's conduct fails the APA review under 5

U.S.C. § 706(2)(A), then it proceeds to determine, as a factual matter, if

the bid protester was prejudiced by that conduct.

Bannum, Inc. v. United States, 404 F.3d at 1351. In describing the prejudice

requirement, the Federal Circuit also has held that:

To prevail in a bid protest, a protester must show a significant, prejudicial

error in the procurement process. See Statistica, Inc. v. Christopher, 102

F.3d 1577, 1581 (Fed. Cir. 1996); Data Gen. Corp. v. Johnson, 78 F.3d

1556, 1562 (Fed. Cir. 1996). “To establish prejudice, a protester is not

required to show that but for the alleged error, the protester would have

been awarded the contract.” Data General, 78 F.3d at 1562 (citation

omitted). Rather, the protester must show “that there was a substantial

chance it would have received the contract award but for that error.”

Statistica, 102 F.3d at 1582; see CACI, Inc.-Fed. v. United States, 719

F.2d 1567, 1574-75 (Fed. Cir. 1983) (to establish competitive prejudice,

protester must demonstrate that but for the alleged error, “‘there was a

substantial chance that [it] would receive an award--that it was within the

zone of active consideration.’”) (citation omitted).

Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir.), reh’g

denied (Fed. Cir. 1999) (citation omitted in original); see also Allied Tech. Grp., Inc. v.

United States, 649 F.3d 1320, 1326 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2011);

Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1331; Info. Tech. & Applications

Corp. v. United States, 316 F.3d at 1319; Myers Investigative & Sec. Servs., Inc. v.

43

United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002); Impresa Construzioni Geom.

Domenico Garufi v. United States, 238 F.3d at 1332-33; OMV Med., Inc. v. United

States, 219 F.3d 1337, 1342 (Fed. Cir. 2000); Advanced Data Concepts, Inc. v. United

States, 216 F.3d at 1057; Stratos Mobile Networks USA, LLC v. United States, 213 F.3d

1375, 1380 (Fed. Cir. 2000).

In Data General Corp. v. Johnson, the United States Court of Appeals for the

Federal Circuit wrote:

We think that the appropriate standard is that, to establish prejudice, a

protester must show that, had it not been for the alleged error in the

procurement process, there was a reasonable likelihood that the protester

would have been awarded the contract . . . . The standard reflects a

reasonable balance between the importance of (1) averting unwarranted

interruptions of and interferences with the procurement process and (2)

ensuring that protesters who have been adversely affected by allegedly

significant error in the procurement process have a forum available to vent

their grievances. This is a refinement and clarification of the “substantial

chance” language of CACI, Inc.-Fed. [v. United States], 719 F.2d at 1574.

Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir.), reh’g denied, en banc

suggestion declined (Fed. Cir. 1996); see also Bannum, Inc. v. United States, 404 F.3d

at 1353, 1358 (“The trial court was required to determine whether these errors in the

procurement process significantly prejudiced Bannum . . . . To establish ‘significant

prejudice’ Bannum must show that there was a ‘substantial chance’ it would have

received the contract award but for the [government’s] errors” in the bid process.

(quoting Info. Tech. & Applications Corp. v. United States, 316 F.3d at 1319; Alfa Laval

Separation, Inc. v. United States, 175 F.3d at 1367; Statistica, Inc. v. Christopher, 102

F.3d 1577, 1581 (Fed. Cir. 1996); and Data Gen. Corp. v. Johnson, 78 F.3d at 1562));

see also Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1331 (“To establish

prejudice, the claimant must show that there was a ‘substantial chance it would have

received the contract award but for that error.’” (quoting Statistica, Inc. v. Christopher,

102 F.3d at 1582)); Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d at

1370 (using the “substantial chance” standard); OMV Med., Inc. v. United States, 219

F.3d at 1342 (invoking a “reasonable likelihood” of being awarded the contract test);

Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1057 (using a “reasonable

likelihood” rule); Stratos Mobile Networks USA, LLC v. United States, 213 F.3d at 1380

(using a “substantial chance” test); Info. Scis. Corp. v. United States, 73 Fed. Cl. 70, 96

(2006) (using a “substantial chance” test), recons. in part, 75 Fed. Cl. 406, 412 (2007)

(using a “substantial chance” test); Park Tower Mgmt., Ltd. v. United States, 67 Fed. Cl.

548, 559 (2005) (using a “substantial chance” test). But see Weeks Marine, Inc. v.

United States, 575 F.3d at 1362 (holding that a pre-award bid protest claimant must

show “‘a non-trivial competitive injury which can be redressed by judicial relief . . . .’”).

44

Under an arbitrary or capricious standard, the reviewing court should not

substitute its judgment for that of the agency, but should review the basis for the agency

decision to determine if it was legally permissible, reasonable, and supported by the

facts. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43

(“The scope of review under the arbitrary and capricious standard is narrow and a court

is not to substitute its judgment for that of the agency.”); see also R & W Flammann

GmbH v. United States, 339 F.3d 1320, 1322 (Fed. Cir. 2003) (citing Ray v. Lehman, 55

F.3d 606, 608 (Fed. Cir.), cert. denied, 516 U.S. 916 (1995)). “If the court finds a

reasonable basis for the agency’s action, the court should stay its hand even though it

might, as an original proposition, have reached a different conclusion as to the proper

administration and application of the procurement regulations.” Honeywell, Inc. v.

United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co. v.

Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971)); see also HP Enter. Servs., LLC v.

United States, 104 Fed. Cl. 230, 238 (2012); Vanguard Recovery Assistance v. United

States, 101 Fed. Cl. 765, 780 (2011); Seaborn Health Care, Inc. v. United States, 55

Fed. Cl. 520, 523 (2003) (quoting Honeywell, Inc. v. United States, 870 F.2d at 648

(quoting M. Steinthal & Co. v. Seamans, 455 F.2d at 1301)).

As stated by the United States Supreme Court:

Section 706(2)(A) requires a finding that the actual choice made was not

“arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” To make this finding the court must consider

whether the decision was based on a consideration of the relevant factors

and whether there has been a clear error of judgment. Although this

inquiry into the facts 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 (1971), abrogated on

other grounds by Califano v. Sanders, 430 U.S. 99 (1977); see also U.S. Postal Serv. v.

Gregory, 534 U.S. 1, 6-7 (2001); Bowman Transp., Inc. v. Arkansas-Best Freight Sys.,

Inc., 419 U.S. 281, 285 (1974), reh’g denied, 420 U.S. 956 (1975); Co-Steel Raritan,

Inc. v. ITC, 357 F.3d 1294, 1309 (Fed. Cir. 2004) (In discussing the “arbitrary,

capricious, and abuse of discretion otherwise not in accordance with the law” standard,

the Federal Circuit stated that “the ultimate standard of review is a narrow one. The

court is not empowered to substitute its judgment for that of the agency.”); In re Sang

Su Lee, 277 F.3d at 1342; Advanced Data Concepts, Inc. v. United States, 216 F.3d at

1058 (“The arbitrary and capricious standard applicable here is highly deferential. This

standard requires a reviewing court to sustain an agency action evincing rational

reasoning and consideration of relevant factors.” (citing Bowman Transp., Inc. v.

Arkansas-Best Freight Sys., Inc., 419 U.S. at 285)); Lockheed Missiles & Space Co. v.

Bentsen, 4 F.3d 955, 959 (Fed. Cir. 1993); Gulf Grp. Inc. v. United States, 61 Fed. Cl.

338, 351 (2004) (“Although this inquiry into the facts 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.”); ManTech Telecomms. & Info. Sys. Corp. v. United

45

States, 49 Fed. Cl. 57, 63 (2001), aff’d, 30 F. App’x 995 (Fed. Cir. 2002); Ellsworth

Assocs., Inc. v. United States, 45 Fed. Cl. at 392 (“Courts must give great deference to

agency procurement decisions and will not lightly overturn them.” (citing Fla. Power &

Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985))).

According to the United States Court of Appeals for the Federal Circuit:

Effective contracting demands broad discretion. Burroughs Corp. v.

United States, 617 F.2d 590, 598 (Ct. Cl. 1980); Sperry Flight Sys. Div. v.

United States, 548 F.2d 915, 921, 212 Ct. Cl. 329 (1977); see NKF Eng’g,

Inc. v. United States, 805 F.2d 372, 377 (Fed. Cir. 1986); Tidewater

Management Servs., Inc. v. United States, 573 F.2d 65, 73, 216 Ct. Cl. 69

(1978); RADVA Corp. v. United States, 17 Cl. Ct. 812, 819 (1989), aff’d,

914 F.2d 271 (Fed. Cir. 1990). Accordingly, agencies “are entrusted with

a good deal of discretion in determining which bid is the most

advantageous to the Government.” Tidewater Management Servs., 573

F.2d at 73, 216 Ct. Cl. 69.

Lockheed Missiles & Space Co., Inc. v. Bentsen, 4 F.3d at 958-59; see also Grumman

Data Sys. Corp. v. Dalton, 88 F.3d at 995; Grumman Data Sys. Corp. v. Widnall, 15

F.3d 1044, 1046 (Fed. Cir. 1994); Cybertech Grp., Inc. v. United States, 48 Fed. Cl.

638, 646 (2001) (“The court recognizes that the agency possesses wide discretion in

the application of procurement regulations.”); Lockheed Missiles & Space Co. v. United

States, 4 F.3d at 958; JWK Int’l Corp. v. United States, 49 Fed. Cl. 371, 388 (2001),

aff’d, 279 F.3d 985 (Fed. Cir), reh’g denied (Fed. Cir. 2002).

Similarly, the Federal Circuit further has indicated that:

Contracting officers “are entitled to exercise discretion upon a broad range

of issues confronting them in the procurement process.” Impresa

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,

1332 (Fed. Cir. 2001) (internal quotation marks omitted). Accordingly,

procurement decisions are subject to a “highly deferential rational basis

review.” CHE Consulting, Inc. v. United States, 552 F.3d 1351, 1354 (Fed.

Cir. 2008) (internal quotation marks omitted). Applying this highly

deferential standard, the court must sustain an agency action unless the

action does not “evince[ ] rational reasoning and consideration of relevant

factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054,

1058 (Fed. Cir. 2000) (alterations added).

PAI Corp. v. United States, 614 F.3d at 1351; see also Weeks Marine, Inc. v. United

States, 575 F.3d at 1368-69 (“We have stated that procurement decisions ‘invoke[ ]

“highly deferential” rational basis review.’ Under that standard, we sustain an agency

action ‘evincing rational reasoning and consideration of relevant factors.’” (quoting CHE

Consulting, Inc. v. United States, 552 F.3d at 1354 (quoting Advanced Data Concepts,

Inc. v. United States, 216 F.3d at 1058))).

46

The wide discretion afforded contracting officers extends to a broad range of

procurement functions, including the determination of what constitutes an advantage

over other proposals. See Compubahn, Inc. v. United States, 33 Fed. Cl. 677, 682-83

(1995) ("[T]his court is in no position to challenge the technical merit of any comments

made on the evaluation sheets or decisions made during the several stages of

evaluation.") (footnote omitted)); see also Textron, Inc. v. United States, 74 Fed. Cl. at

286 (in which the court considered technical ranking decisions are “‘minutiae of the

procurement process’” not to be second guessed by a court (quoting E.W. Bliss Co. v.

United States, 77 F.3d 445, 449 (Fed. Cir. 1996))). This is because “[t]he evaluation of

proposals for their technical excellence or quality is a process that often requires the

special expertise of procurement officials, and thus reviewing courts give the greatest

deference possible to these determinations.” Beta Analytics Int’l, Inc. v. United States,

67 Fed. Cl. 384, 395 (2005) (citing E.W. Bliss Co. v. United States, 77 F.3d at 449); see

also Unisys Corp. v. United States, 89 Fed. Cl. 126, 142 (2009) (holding that an

agency’s “exercise of such technical judgment and expertise . . . . is entitled to the

greatest possible deference under E.W. Bliss”); Dismas Charities, Inc. v. United States,

61 Fed. Cl. 191, 203 (2004) (“The decision as to whether an offeror should have scored

a 3, 4, or 5 on any question is properly left to the discretion of the agency.”). The

question is not whether the court would reach the same conclusions as the agency

regarding the comparison of proposals, but, rather, whether the conclusions reached by

the agency lacked a reasonable basis and, therefore, were arbitrary or capricious, in

which case, courts have a role to review and instruct. See, e.g., WorldTravelService v.

United States, 49 Fed. Cl. 431, 441 (2001) (“Therefore, this court’s main task is to

ensure that the [agency] examined the relevant data and articulated a ‘rational

connection between the facts found and the choice made.’” (quoting Motor Vehicle Mfrs.

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

omitted))).

The amount of discretion afforded the contracting officer is greater in some

circumstances as compared to others. For example, in a negotiated procurement,

contracting officers are generally afforded greater decision making discretion, in

comparison to their role in sealed bid procurements. See Galen Med. Assocs., Inc. v.

United States, 369 F.3d at 1330 (“Because the bid protest at issue here involved a

‘negotiated procurement,’ the protestor's burden of proving that the award was arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law is greater

than in other types of bid protests.” (citations omitted)); see also Hayes Int'l Corp. v.

United States, 7 Cl. Ct. 681, 686 (1985) (“It is well-established that contracting officials

are accorded broad discretion in conducting a negotiated procurement....” (citing Sperry

Flight Sys. v. United States, 212 Ct. Cl. 329, 339-40, 548 F.2d 915, 921 (1977))).

The Federal Circuit has explained that procurement officials have an even

greater degree of discretion when it comes to best value determinations, as compared

to negotiated procurements. See, e.g., Galen Med. Assocs., Inc. v. United States, 369

F.3d at 1330 (noting that because “the contract was to be awarded based on ‘best

value,’ the contracting officer had even greater discretion than if the contract were to

have been awarded on the basis of cost alone”); see also Banknote Corp. of Am. Inc. v.

47

United States, 365 F.3d at 1355 (“It is well-established that contracting officers have a

great deal of discretion in making contract award decisions, particularly when, as here,

the contract is to be awarded to the bidder or bidders that will provide the agency with

the best value.” (citing TRW, Inc. v. Unisys Corp., 98 F.3d 1325, 1327-28 (Fed. Cir.

1996))); Am. Tel. and Tel. Co. v. United States, 307 F.3d 1374, 1379 (Fed. Cir. 2002),

reh’g en banc denied (Fed. Cir.), cert. denied, 540 U.S. 937 (2003); E.W. Bliss Co. v.

United States, 77 F.3d at 449 (“Procurement officials have substantial discretion to

determine which proposal represents the best value for the government. See Lockheed

Missiles & Space Co., Inc. v. Bentsen, 4 F.3d 955, 958 (Fed. Cir. 1993); cf. Widnall v.

B3H, 75 F.3d 1577 (Fed. Cir. 1996) (holding that Board of Contract Appeals should

defer to agency’s best value decision as long as it is ‘grounded in reason... even if the

Board itself might have chosen a different bidder’)….”); Lockheed Missiles & Space Co.

v. United States, 4 F.3d at 958; Burney v. United States, No. 12-67C, 2012 WL

1632353, at *6 (Fed. Cl. May 9, 2012) (“We give a high level of deference to an

agency’s evaluation of proposals and best value determinations, recognizing the

agency’s expertise in procurement matters and application of regulations. See CHE

Consulting, Inc. v. United States, 552 F.3d 1351, 1354 (Fed. Cir. 2008) (citing E.W.

Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996)). An agency’s action will

be upheld unless the protestor can show that the agency’s action was without a rational

basis. Impresa Construzioni Gemo. Domenico Garufi v. United States, 238 F.3d 1324,

1333 (Fed. Cir. 2001).”), aff’d, No. 2012-5088, 2012 WL 6118824 (Fed. Cir. Dec. 11,

2012); Akal Sec., Inc. v. United States, 103 Fed. Cl. 310, 329 (2011) (“The United

States Court of Appeals for the Federal Circuit has recognized that ‘[p]rocurement

officials have substantial discretion to determine which proposal represents the best

value for the government.’” (quoting E.W. Bliss Co. v. United States, 77 F.3d at 449));

Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed. Cl. 488, 514 (2009).

When the contracting officer’s discretion grows, so does the burden on the

protestor. As noted recently in D & S Consultants, Inc. v. United States:

The protestor's burden becomes more difficult the greater the degree of

discretion vested in the contracting officer. DynCorp Int'l v. United States,

76 Fed. Cl. 528, 537 (2007). Negotiated procurements afford the

contracting officer a “breadth of discretion;” “best-value” awards afford the

contracting officer additional discretion. Id. Therefore, in a negotiated,

best-value procurement, the “protestor's burden is especially heavy.” Id.

D & S Consultants, Inc. v. United States, 101 Fed. Cl. 23, 33 (2011). D & S Consultants

identifies another circumstance in which the contracting officer is afforded yet greater

discretion. The court in D & S Consultants explained, procurements in which a best

value determination is made afford the contracting officer broader decision making

discretion than a negotiated procurement in which a best value determination is not at

issue. See id.; see also Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1330

(noting that contracting officers have great discretion in negotiated procurements but

even greater discretion in best value determinations than in procurements based on

cost alone); PHT Supply Corp. v. United States, 71 Fed. Cl. 1, 11 (2006) (“It is critical to

48

note that ‘a protestor's burden is particularly great in negotiated procurements because

the contracting officer is entrusted with a relatively high degree of discretion, and

greater still, where, as here, the procurement is a “best-value” procurement.’” (citations

omitted)). “It is well-established that contracting officers have a great deal of discretion

in making contract award decisions, particularly when, as here, the contract is to be

awarded to the bidder or bidders that will provide the agency with the best value.”

Banknote Corp. of Am. Inc. v. United States, 365 F.3d at 1355 (citing TRW, Inc. v.

Unisys Corp., 98 F.3d at 1327-28; E.W. Bliss Co. v. United States, 77 F.3d at 449; and

Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d at 958-59); see also Am. Tel. & Tel.

Co. v. United States, 307 F.3d at 1379; Lockheed Missiles & Space Co. v. United

States, 4 F.3d at 958; Brooks Range Contract Servs., Inc. v. United States, 101 Fed. Cl.

699, 707 (2011) (“[A] plaintiff's burden ‘is elevated where the solicitation contemplates

award on a “best value” basis.’” (citations omitted)); Matt Martin Real Estate Mgmt. LLC

v. United States, 96 Fed. Cl. 106, 113 (2010); Serco v. United States, 81 Fed. Cl. 463,

496 (2008) (“To be sure, as noted at the outset, plaintiffs have a significant burden of

showing error in that regard because a court must accord considerable deference to an

agency's best-value decision in trading off price with other factors.”).

In addition, the court “assume[s] that the government acts in good faith while

contracting.” Galen Med. Assocs., Inc. v. United States, 56 Fed. Cl. 104, 108 (2003),

aff'd, 369 F.3d 1324 (Fed. Cir. 2004). Thus, a protestor must show “‘well-nigh

irrefragable proof’ that the government had an intent to injure it to overcome this

presumption.” Id. (quoting Knotts v. United States, 128 Ct. Cl. 489, 492, 121 F. Supp.

630, 631 (1954)); see also Caldwell & Santmyer, Inc. v. Glickman, 55 F.3d 1578, 1581

(Fed. Cir. 1995) (“We assume the government acts in good faith when contracting.

Torncello [v. United States], 681 F.2d [756,] 770 [(1982)]; Librach v. United States, 147

Ct.Cl. 605, 1959 WL 7633 (1959). A contractor can overcome this presumption only if it

shows through ‘well-nigh irrefragable proof’ that the government had a specific intent to

injure it. Torncello, 681 F.2d at 770.”).

In E.W. Bliss Co. v. United States, the United States Court of Appeals for the

Federal Circuit offered guidance on the applicable standard of review in best value

determinations:

Procurement officials have substantial discretion to determine which

proposal represents the best value for the government. See Lockheed

Missiles & Space Co., Inc. v. Bentsen, 4 F.3d 955, 958 (Fed. Cir. 1993);

cf. Widnall v. B3H, 75 F.3d 1577 (Fed. Cir. 1996) (holding that Board of

Contract Appeals should defer to agency’s best value decision as long as

it is “grounded in reason ... even if the Board itself might have chosen a

different bidder”); In re General Offshore Corp., B-251969.5, B-251969.6,

94-1 Comptroller Gen.’s Procurement Decisions (Federal Publications

Inc.) ¶ 248, at 3 (Apr. 8, 1994) (“In a negotiated procurement, any

proposal that fails to conform to material terms and conditions of the

solicitation should be considered unacceptable and may not form the

basis for an award. Where an evaluation is challenged, we will examine

49

the agency’s evaluation to ensure that it was reasonable and consistent

with the evaluation criteria and applicable statutes and regulations, since

the relative merit of competing proposals is primarily a matter of

administrative discretion.”) (citations omitted).

* * *

Bliss’ [other challenges to the procurement] deal with the minutiae of the

procurement process in such matters as technical ratings ... which involve

discretionary determinations of procurement officials that a court will not

second guess. See Lockheed Missiles & Space Co., 4 F.3d at 958;

Grumman Data Systems Corp. v. Widnall, 15 F.3d 1044, 1048 (Fed. Cir.

1994) (“[S]mall errors made by the procuring agency are not sufficient

grounds for rejecting an entire procurement.”)….

E.W. Bliss Co. v. United States, 77 F.3d at 449; see also Vanguard Recovery

Assistance v. United States, 101 Fed. Cl. at 780; Galen Med. Assocs., Inc. v. United

States, 74 Fed. Cl. 377, 383-84 (2006); JWK Int’l Corp. v. United States, 49 Fed. Cl.

371, 388 (2001), aff’d, 279 F.3d 985 (Fed. Cir.), reh’g denied (Fed. Cir. 2002).

The FAR at 48 C.F.R. § 15.101-1 states the following with respect to the best

value process:

(a) A tradeoff process is appropriate when it may be in the best interest of

the Government to consider award to other than the lowest priced offeror

or other than the highest technically rated offeror.

(b) When using a tradeoff process, the following apply:

(1) All evaluation factors and significant subfactors that will affect

contract award and their relative importance shall be clearly stated

in the solicitation; and

(2) The solicitation shall state whether all evaluation factors other

than cost or price, when combined, are significantly more important

than, approximately equal to, or significantly less important than

cost or price.

(c) This process permits tradeoffs among cost or price and non-cost

factors and allows the Government to accept other than the lowest priced

proposal. The perceived benefits of the higher priced proposal shall merit

the additional cost, and the rationale for tradeoffs must be documented in

the file in accordance with 15.406.

48 C.F.R. § 15.101-1 (current through Feb. 7, 2013).

50

Summarizing the challenge a protester faces in contesting a best value

determination, a judge of the Court of the Federal Claims stated:

The plaintiff in a bid protest thus “bears a heavy burden.” Impresa, 238

F.3d at 1333. That burden lies heavier still when the plaintiff challenges a

contract award made subsequent to negotiated procurement, where the

procurement official is entrusted with “especially great discretion,

extending even to his application of procurement regulations.” Am. Tel. &

Tel. Co. v. United States, 307 F.3d 1374, 1379 (Fed. Cir. 2002). Greater

yet is the procurement official's discretion when selecting a contract-

awardee on the basis of a best value determination rather than price

alone. Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330

(Fed. Cir. 2004).

Of course, as courts have repeatedly observed, the greater the

procurement official's vested discretion, the higher the threshold for finding

the official's decision irrational or otherwise unlawful. See, e.g., id.;

Burroughs Corp. v. United States, 617 F.2d 590, 597 (Ct. Cl. 1980);

Cygnus Corp., Inc. v. United States, 72 Fed. Cl. 380, 384–85 (2006) [aff’d,

227 F. App’x 909 (Fed. Cir. 2007)]. An agency's contract award is thus

least vulnerable to challenge when based upon a best value

determination. See Galen Med. Assocs., 369 F.3d at 1330.

PlanetSpace Inc. v. United States, 96 Fed. Cl. 119, 125 (2010).

Generally speaking, the United States Court of Federal Claims “will not disturb an

agency's best value decision merely because a disappointed bidder disagrees with the

agency's analysis.” Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed. Cl.

at 515. But if “ratings that provided the basis for the Agency's tradeoff analysis and best

value award were fundamentally flawed and arbitrary, the best value award itself was

arbitrary and capricious.” BayFirst Solutions, LLC v. United States, 102 Fed. Cl. 677,

695 (2012) (citing Huntsville Times Co. v. United States, 98 Fed. Cl. 100, 119 (2011)).

The FAR also describes the Source Selection Authority’s responsibilities when

performing a best value determination, and the documentation needed to support an

agency’s best value trade-off analysis. The relevant provision provides:

The source selection authority's (SSA) decision shall be based on a

comparative assessment of proposals against all source selection criteria

in the solicitation. While the SSA may use reports and analyses prepared

by others, the source selection decision shall represent the SSA's

independent judgment. The source selection decision shall be

documented, and the documentation shall include the rationale for any

business judgments and tradeoffs made or relied on by the SSA, including

benefits associated with additional costs. Although the rationale for the

51

selection decision must be documented, that documentation need not

quantify the tradeoffs that led to the decision.

48 C.F.R. § 15.308 (current through Feb. 7, 2013).

The Court of Federal Claims has found that “[c]onclusory statements, devoid of

any substantive content, have been held to fall short of” the FAR’s documentation

requirement, “threatening to turn the tradeoff process into an empty exercise.” Serco

Inc. v. United States, 81 Fed. Cl. at 497 (footnote omitted); see also FirstLine Transp.

Sec., Inc. v. United States, 100 Fed. Cl. at 381 (“[W]hen selecting a low-price technically

inferior proposal in a best-value procurement where non-price factors are more

important than price, it is not sufficient for the government to simply state that a

proposal's technical superiority is not worth the payment of a price premium. Instead,

the government must explain specifically why it does not warrant a premium.”

(emphasis in original)). Thus, the FAR requires that the source selection authority

document a rational basis for its best value determination.

The Code of Federal Regulations at 48 C.F.R. § 15.308, however, does not

require the government to “quantify the tradeoffs that led to the decision.” 48 C.F.R.

§15.308. “In performing the tradeoff analysis, the agency need neither assign an exact

dollar value to the worth associated with the technical benefits of a contract nor

otherwise quantify the non-cost factors.” Serco Inc. v. United States, 81 Fed. Cl. at 497

(citing 48 C.F.R. § 15.308).

Plaintiff, One Largo, brings two claims before this court. In Count I, Plaintiff

alleges that Defendant’s evaluation of the Access to Metrorail25 and Planning Efficiency

and Flexibility technical sub-factors was arbitrary, capricious, and contrary to law

because Defendant did not evaluate Plaintiff’s proposal in accordance with the

evaluation criteria set out in the Solicitation. Specifically, Plaintiff objects to Ms.

Kronopolous’, GSA’s Regional Commissioner for the PBS, National Capital Region,

alleged incorporation of a 2,500 feet standard under the Access to Metrorail sub-factor,

and her alleged discounting of Plaintiff’s technical advantages over Fishers Lane’s

25

At oral argument, Plaintiff’s counsel stated that Defendant’s evaluation of the Access

to Metrorail sub-factor is the more significant of the two issues regarding Defendant’s

technical evaluation, because that sub-factor was “the most significant in the source

selection plan, which the source selection official adopted,” as it was rated at thirty-five

percent of the technical factors. Plaintiff’s counsel further indicated:

Counsel: If One Largo Metro’s benefit is more than minor, One Largo

Metro then has close to a two-step advantage in 35 percent of the non-

price factors.

The Court: So, if I disagree on the significance of that, from your

perspective, the house of cards topples?

Counsel: Yes.

52

proposal under the Planning Efficiency and Flexibility sub-factor. In Count II, Plaintiff

alleges that Defendant, reasonably, could not have found that Fishers Lane’s proposal

represented the best overall value to the government because One Largo enjoyed

significant technical advantages over Fishers Lane, and price was of “significantly less

importance than the combined weight of the technical factors.” Thus, according to

Plaintiff, Defendant’s decision that Fishers Lane’s proposal was the most advantageous

proposal to the government was arbitrary and capricious. As described above, One

Largo seeks bid preparation and proposal costs in the amount of $4,038,739.00, to

which, Plaintiff argues, it is entitled because Plaintiff has been directly harmed by

Defendant’s improper actions.

For the purposes of determining whether Defendant’s award decision was

arbitrary and capricious, the court primarily focuses on Ms. Kronopolous’ second

selection decision, issued on August 24, 2011. Because Ms. Kronopolous explicitly

adopted the Source Selection Evaluation Board’s January 12, 2011 Report and

February 3, 2011 Addendum, and also relied on the reports issued by the Technical

Evaluation Teams and Source Selection Authority, those documents, however, as well

as Ms. Kronopolous’ March 8, 2011 selection decision, also are discussed when

relevant to the court’s analysis.

Access to Metrorail

The Solicitation required that all proposals be for facilities within three miles of a

Metrorail station, “as measured from the main entrance of the buil

This text is long and has been trimmed here. Open the source document for the complete record.