# One Largo Metro, Llc v. United States

> United States Court of Federal Claims · February 21, 2013 · 109 Fed. Cl. 39

URL: https://www.frixlaw.com/law-library/cases/821055

## Case

- **Full name:** ONE LARGO METRO, LLC, Plaintiff, v. UNITED STATES, Defendant
- **Court:** United States Court of Federal Claims
- **Decided:** February 21, 2013
- **Citations:** 109 Fed. Cl. 39; 2013 WL 638886
- **Precedential status:** Published
- **Opinion:** Opinion by Horn
- **Judges:** Horn
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/821055

## How later opinions describe it (automated extraction)

- stating that because a best value determination “involves layers of decision-making and judgment calls regarding which proposals offer the overall highest technical merit, and what technical advantages are worth a higher price[,] [t]he court is reluctant to second guess” this …
- observing that “the 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”

## Opinion text

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 a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/821055. Public record. Not legal advice.