Vanquish Worldwide, LLC v. United States

In the United States Court of Federal Claims

No. 22-887C

(Filed Under Seal: November 10, 2022)

(Reissued for Publication: November 21, 2022)

)

VANQUISH WORLDWIDE, LLC, )

)

Plaintiff,

)

v. )

)

THE UNITED STATES, )

)

Defendant, )

)

and )

)

AMENTUM SERVICES, INC.,

)

Defendant- )

Intervenor. )

)

Michael D. Maloney, Williams Mullen, Tysons, VA, for Plaintiff. Of counsel was Todd W.

Miller, Miller & Miller, Golden, CO.

Andrew Hunter, Commercial Litigation Branch, Civil Division, United States Department

of Justice, Washington, D.C., for Defendant. With him on the briefs were Brian M.

Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director,

and Franklin E. White, Jr., Assistant Director. Of counsel was Captain Natalie W.

McKiernan, Contract Litigation & Intellectual Property Division, United States Army

Legal Services Agency, Fort Belvoir, VA.

Kevin P. Connelly, Vedder Price P.C., Washington, D.C., for Defendant-Intervenor. Of

counsel were Kelly E. Buroker, Tamara Droubi, and Jeffrey M. Lowry.

OPINION AND ORDER *

SOLOMSON, Judge.

This is a story not of a party sleeping on its rights but relinquishing them and then

seeking a mulligan.

In a previous action before this Court, Defendant-Intervenor, Amentum Services,

Inc. (“Amentum”), challenged the award of a contract by Defendant, the United States —

acting by and through the U.S. Department of the Army (the “Army”) — to Plaintiff,

Vanquish Worldwide, LLC (“Vanquish”). In response to Amentum’s complaint, the

government proposed corrective action to moot the dispute. All the parties — and this

Court — agreed to the government’s approach, including the dismissal for mootness.

Vanquish has since found the Army’s corrective action wanting and thus asks this Court

to order the Army to stop or modify its ongoing corrective action process.

As explained below, the fatal sand trap for Vanquish here is that it agreed to the

Army’s selected course of action and cannot now restart at the first hole.

I. FACTUAL BACKGROUND 1

A. The Procurement

1. The Solicitation

This case concerns the Enhanced Army Global Logistics Enterprise (“EAGLE”)

program. AR 1. The objective of the EAGLE program “is to provide global logistics

services, primarily [m]aterial [m]aintenance [s]ervices, [r]etail/[w]holesale [s]upply

[s]ervices, and [t]ransportation [s]upport [s]ervices, that meet the Army’s logistics

mission needs in the most efficient and cost-effective manner.” AR 4.

*Pursuant to the protective order in this case, the Court initially filed this opinion under seal on

November 10, 2022, and directed the parties to propose redactions of confidential or proprietary

information by November 17, 2022. The parties have jointly submitted proposed redactions to

the Court. ECF No. 37. The Court adopts those redactions, as reflected in this public version of

the opinion. Words or phrases that are redacted have been replaced with [ * * * ].

1 This background section constitutes the Court’s findings of fact drawn from the administrative

record. Rule 52.1 of the Rules of the United States Court of Federal Claims, covering judgment

on the administrative record, “is properly understood as intending to provide for an expedited

trial on the record” and requires the Court “to make factual findings from the record evidence as

if it were conducting a trial on the record.” Bannum, Inc. v. United States, 404 F.3d 1346, 1354, 1356

(Fed. Cir. 2005). Citations to the administrative record, see ECF Nos. 21, 24, are denoted as “AR”

followed by the page number. Additional findings of fact are made throughout Section V.

2

EAGLE is implemented through “a multi-step acquisition process,” via which the

Army periodically awards basic ordering agreements (“BOAs”). AR 4. 2 The Army then

issues competitive task order “requests for specific requirements that will result in one

requirements task order per [Army] installation.” AR 4. The initial estimated value for

the EAGLE program was $23.8 billion. AR 25; AR 30. 3 On September 1, 2016, the Army

approved an “extension to the EAGLE acquisition strategy for a period of ten (10) years

beyond the . . . expiration date of 27 September 2017.” AR 65.

On October 28, 2019, the Army finalized a Source Selection Plan (“SSP”) for “a

requirement for contract services to support logistics support services at Fort Polk, LA

covering a five year period from [an] anticipated start date of May 2020 through May

2025.” AR 81. The anticipated contract (the “Task Order”) would cover “activities [that]

directly and indirectly support training of forces, preparing forces for deployment,

sustainment, redeployment in support of current conflicts, reset forces, and to rebuild

readiness for future deployments and contingencies to meet the demands of a persistent

conflict in the 21st Century.” AR 83. The Army estimated the total value of the

procurement at approximately [ * * * ]. AR 83. The SSP indicated that the Task Order

“will be solicitated on a competitive basis through a full and open competition to all

[EAGLE BOA] holders utilizing a competitive best value source selection process,” in

accordance with FAR 15.101-1. AR 83.

On April 6, 2020, see AR 11150, the Army issued the request for proposals for the

Task Order, Solicitation No. W52P1J-19-R-0081 (the “Solicitation” or “RFP”). AR 95–345. 4

The Solicitation informed potential offerors that the Army intends to award a cost-plus-

fixed fee task order with a performance period of a one-year base period (including a

sixty-day transition-in period), four one-year option periods, and one six-month option

period in accordance with Federal Acquisition Regulation (“FAR”) 52.217-8. AR 96 (RFP

§ A.3). Amentum’s predecessor is the incumbent contractor for the services sought in the

RFP. AR 96 (RFP § A.7); AR 1949 (Amentum Proposal). Proposals were due June 25,

2020. AR 1245 (RFP Amendment 0006).

2See AR 31 (explaining that, “[p]ursuant to Federal Acquisition Regulation 16.702(a)(2) BOAs are

not contracts,” and “therefore, the contractual obligation occurs at task order execution”); AR 70

(Pre-Solicitation Notice) (delineating “the annual synopsis for requirements falling under the

scope of the [EAGLE] program” for which additional BOAs would be awarded).

3As of May 9, 2016, only approximately $1.7 billion of the projected $23.8 billion had been

awarded. AR 66.

4 The Army issued seven (7) amendments to the RFP between May 1, 2020, and June 23, 2020. See

AR 346–597 (RFP Amendment 0001) (issued May 1, 2020); AR 597–645 (RFP Amendment 0002)

(issued May 20, 2020); AR 646–47 (RFP Amendment 0003) (issued May 27, 2020); AR 648–1241

(RFP Amendment 0004) (issued June 4, 2020); AR 1242–43 (RFP Amendment 0005) (issued June

10, 2020); AR 1244–45 (RFP Amendment 0006) (issued June 22, 2020); AR 1246–1248 (RFP

Amendment 0007) (issued June 23, 2020).

3

Section L of the RFP, as always, provided instructions for proposal preparation,

with several instructions designated as “COMPLIANCE REQUIREMENT[S].” See, e.g.,

AR 154 (RFP § L.4.1.2(b)) (“COMPLIANCE REQUIREMENT: Failure to provide the most

current versions of the RFP Attachments 0002, 0003, or 0005 shall render the Offeror[’]s

proposal non-compliant and [it] will not be further considered for award.” (emphasis

omitted)); AR 155 (RFP § L.5.1.1(d)) (“COMPLIANCE REQUIREMENT: Failure to

provide the signed SF 33 will render the Offeror’s proposal non-compliant. The proposal

will not be evaluated and will not be further considered for award.” (emphasis omitted)). 5

The RFP further warned offerors:

Failure to provide proposals in compliance with the instructions

specified as COMPLIANCE REQUIREMENTS in Section L of this

RFP and in compliance with ALL instructions in Section M.3 of

this RFP shall render the Offeror’s proposal non-compliant. The

proposal will not be evaluated and will not be further considered for

award.

AR 153 (RFP § L.2.1). 6

With regard to the possibility of discussions, 7 Section L cautioned offerors as

follows:

[T]he Government intends to award a task order without

discussions. Offerors are cautioned to examine this RFP in its

entirety and to ensure that proposals contain all necessary

information, provide all required documentation, and are

complete in all respects. The Government is not obligated to

make another request for the required information nor does

5 The Court counts at least fifteen (15) additional proposal instructions in Section L similarly

designated as a “COMPLIANCE REQUIREMENT.” AR 154, 156–57, 159–61, 164–70; see also

AR 173 (RFP § M.3.2.1) (“The Government will compare the Offeror’s proposal to Section L in

order to perform a compliance review. Any Offeror’s proposal determined non-compliant per

the terms noted in Section L or determined non-compliant per paragraphs M.3.2.1.1 through

M.3.2.1.2(c) below[] will not be evaluated and will not be further considered for award.”).

6 The substance of this warning was repeated in Section L.4.1.2. AR 154 (RFP § L.4.1.2) (“To be

considered for this requirement, the Offeror must submit a complete response to this RFP using

the instructions provided in Section L. COMPLIANCE REQUIREMENT: If the Offeror’s proposal

fails to meet the terms and conditions of the RFP or takes exception to any of the terms and conditions of

the RFP, will render the Offeror’s proposal unacceptable and will not be further considered for award.”).

7 See FAR 15.306 (“Exchanges with offerors after receipt of proposals”); FAR 15.307 (“Proposal

revisions”).

4

the Government assume the duty to search for data to cure

problems it finds in proposals. The Government reserves the

right to conduct discussions in the evaluation process and to permit

Offerors to revise proposals, if deemed necessary.

AR 152 (RFP § L.1.2) (emphasis added). The RFP further provided that “the Contracting

Officer may limit the number of proposals in the competitive range,” and that “[a]ny

Offeror eliminated from further consideration will be notified in writing.” AR 153 (RFP

§ L.1.2).

The RFP in Section L did not expressly explain whether the government’s

reservation of rights to conduct discussions “to cure problems it finds in proposals” and

“to permit Offerors to revise proposals, if deemed necessary,” AR 152 (RFP § L.1.2), might

apply to an initial proposal that failed a compliance requirement. On the other hand,

despite the warnings cautioning offerors that a proposal that fails a specifically-

designated compliance requirement “will not be evaluated” or be “further considered for

award,” AR 153 (RFP § L.2.1), the RFP “reserve[d] the [Army’s] right to . . . waive the

strict compliance review” and to “conduct discussions,” AR 172 (RFP § M.2); see also AR

172 (RFP § M.3) (“The Government reserves the right to waive the Strict Compliance

Review if it is in the Government[’]s best interest.”).

Section M of the RFP provided that the Army’s evaluation would proceed in

stages, in accordance with the Army’s strict compliance review, “starting with the lowest

total proposed priced offer” and progressing “to the highest total proposed priced offer,

until at least five (5) or 20% of the proposals (whichever is greater) are determined to be

compliant.” AR 172 (RFP § M.3.2). The RFP advised offerors “that initially only the pool

of five (5) or 20% (whichever is greater) of the proposals found to be compliant will move”

on in the process for further evaluation. AR 172; see also AR 173 (RFP § M.3.2.2) (“Only

Offerors whose proposals are determined to be compliant will move to Step 1 of the

evaluation process.”).

Section M.4 of the RFP delineated the Army’s evaluation methodology. AR 173.

It provided for “a competitive best value source selection in which competing Offerors

will be evaluated against four evaluation factors: Technical, Past Performance, Cost/

Price, and Small Business Participation.” AR 173 (RFP § M.4.1). The Army had to

“evaluate the Technical Factor on an Acceptable/Unacceptable basis.” AR 173. The RFP

further required the Army to perform a “qualitative assessment” of past performance “by

assigning confidence ratings.” AR 173. Although “Cost/Price will be an evaluated

factor[,] . . . it will not be rated.” AR 173. Finally, the RFP provided that “[t]he

Government will evaluate the Small Business Participation Factor on an Acceptable/

Unacceptable basis.” AR 173. In terms of relative weights and the ultimate best value

decision, “[t]he Past Performance Factor is significantly more important than the

Cost/Price Factor and Small Business Participation Factor” and “[a]ll non-cost factors,

5

when combined, are significantly more important than the Cost/Price Factor.” AR 173.

Contradicting general best value trade-off principles, however, the RFP provided that

“[a]ward will be made to the responsible Offeror with the lowest evaluated (fair and

reasonable) priced proposal that is determined Technically Acceptable with Substantial

Confidence in Past Performance and an Acceptable rating in Small Business

Participation.” AR 173.

For the proposals that made it past the strict compliance review, if performed, the

RFP provided for a three-step evaluation process. In “Step 1,” the Army would evaluate

offerors’ technical proposals “on an Acceptable/Unacceptable basis” in accordance with

the evaluation criteria set forth in Section M.5. AR 173 (RFP § M.4.1). As part of Step 1,

“the Government reserve[d] the right to conduct discussions [in accordance with Section]

M.4.4 . . . if the Contracting Officer determines that discussions would be advantageous

[to] the Government.” AR 173. Following the technical evaluation, “only the three (3)

lowest proposed priced compliant offerors determined technically acceptable will move

to Step 2.” AR 173.

With respect to “Step 2,” the RFP provided that the Army would conduct

evaluations of the past performance, cost/price, and small business participation factors.

AR 173 (RFP § M.4.1). As noted above, only the three “compliant proposals” with the

total lowest price “that are determined Technically Acceptable at Step 1 will be

evaluated” in Step 2 per “the [evaluation] criteria detailed in Section M.5.” AR 173. At

the end of Step 2, “[a]ll proposals which are determined to have Substantial Confidence

in Past Performance, an Acceptable rating in Small Business Participation, with a realistic

cost, will move to Step 3.” AR 174 (RFP § M.4.1.d).

“Step 3” involved the Army’s making a task order to the “responsible” offeror

whose proposal: (1) “complies with the RFP requirements” and is technically acceptable;

(2) offers a “fair and reasonable” price and “is determined to be the lowest total evaluated

priced proposal”; (3) receives a “Substantial Confidence” rating for the past performance

factor; and (4) is assigned an “Acceptable” rating for the small business participation

factor. AR 174 (RFP § M.4.1).

Nothing in Sections M.5 or M.4.4 clearly precluded discussions for offerors found

to be technically unacceptable following the evaluation of initial proposals. Indeed, the

RFP appears to contemplate the possibility of discussions within both Step 1 and Step 2:

M.4.4-Discussions

M.4.4.1-The Government intends to award without

discussions with respective Offerors. IF AND ONLY IF

discussions are conducted, upon completion of the Technical

Factor evaluations, the Government will make a subsequent

competitive range determination, [in accordance with] FAR

6

15.306, based on the final ratings of each [t]echnical proposal

against the Technical Factor evaluation criteria. Only

Offerors determined Technically Acceptable will remain in

this subsequent competitive range and proceed to the Past

Performance, Cost/Price, and Small Business Participation

evaluations identified in STEP 2 above.

M.4.4.2-IF AND ONLY IF discussions are conducted in Step 2,

upon completion of the Past Performance Factor and

Cost/Price Factor evaluations, the Government will make a

competitive range determination, [in accordance with] FAR

15.306. The Past Performance Factor will be evaluated using

a qualitative assessment by assigning confidence ratings. The

Cost/Price Factor will be evaluated for price reasonableness

and cost realism, but it will not be assigned an adjectival

rating. Only highly rated proposals or proposals not

requiring a major rewrite will remain in the competitive

range. Discussions will be held with all Offerors remaining

in the competitive range.

AR 174 (emphasis added).

Notably, the RFP expressly reserved the Army’s right not to follow the three-step

process at all: “The Government reserves the right to simultaneously evaluate Technical,

Past Performance (if applicable), Small Business Participation (if applicable), and

Cost/Price proposals.” AR 174 (RFP § M.4.1.f).

2. Proposals, Evaluations, and Contract Award

The Army received nine proposals. AR 11050. Following the resolution of two

pre-award bid protests, 8 the Army assessed the proposals and found them all “compliant

with the instructions provided in Sections L and M of the RFP” such that they “move[d]

to Step 1 of the evaluation process.” AR 10629 (Proposal Compliance Standings

Memorandum). The compliant proposals included Vanquish Worldwide, LLC, as well

as Amentum Services, Inc., and Vectrus Mission Solutions Corp. (“Vectrus”). AR 10629.

On December 9, 2020, the Army requested that all offerors “extend and validate proposals

through March 25, 2021.” AR 11060 (Source Selection Evaluation Board Report). Vectrus,

however, failed to do so and thus “was removed from the competitive range voluntarily

for not responding by the due date.” AR 11060. The Army, however, “decided to add

8Two GAO pre-award protests were filed prior to the final due date. See AR 11060 (Source

Selection Evaluation Board Report). In response to the first protest, the Army took corrective

action by amending the RFP. AR 11060. The GAO denied the other protest. See AR 11060.

7

Vectrus back into the competitive range as it was not expecting to be voluntarily

removed” and for other reasons. AR 11060. 9

Following Step 1, Amentum received an overall technical evaluation factor rating

of “Unacceptable” based on Amentum’s proposed “Staffing/Labor Mix.” AR 10630

(Amentum Technical Consensus Worksheets); AR 10840 (Amentum Technical

Evaluation – Final Report); AR 11063 (Source Selection Evaluation Board Report). That

overall technical rating was the result of an unacceptable rating for Amentum’s

“Staffing/Labor Mix.” See AR 10840, 10845–49. In contrast, Vanquish received an overall

technical factor rating of “Acceptable.” AR 10890 (Vanquish Technical Evaluation – Final

Report); AR 11063. Amentum, however, was the lowest total proposed priced offeror at

$253,830,413, while Vanquish was the second lowest at $258,798,380. AR 11051; AR

11061–62.

On June 2, 2021, the Source Selection Authority issued her Source Selection

Decision Document (“SSDD”), 10 AR 11049–55, selecting Vanquish as the “best overall

value in accordance with the [RFP’s] criteria . . . to satisfy the U.S. Government’s

requirement for Logistics Support Services at Fort Polk, LA,” AR 11055. Despite the

Source Selection Evaluation Board’s reference to a competitive range which variously

included or excluded Vectrus, see AR 11060, the SSDD makes no mention of any decision

to form a competitive range or whether the Army even considered conducting

discussions. The Army notified Vanquish of its award of the Task Order on June 8, 2021.

AR 11080 (Notice of Contract Award). On that same date, the Army notified Amentum

that it was unsuccessful and provided a written debriefing. AR 11148–50 (Unsuccessful

Offeror Notice /Debriefing – Amentum).

B. Amentum’s Bid Protest

Three disappointed offerors, including Amentum, filed post-award GAO protests,

all of which were denied or dismissed by September 30, 2021. See AR 20489–501 (GAO

Protest Decision – Amentum & VS2, LLC); AR 20506–08 (GAO Protest Decision – Data

Solutions & Technology, Inc.); see also Amentum Servs., Inc., B-418742.3, 2021 CPD ¶ 334,

2021 WL 4819074 (Comp. Gen. Sept. 30, 2021).

On October 15, 2021, Amentum filed a complaint in this Court against the United

States, pursuant to 28 U.S.C. § 1491(b)(1), challenging the Army’s contract award to

9 The Court could not locate documentary evidence of this competitive range determination in

the administrative record.

10The SSDD has two different dates on it — June 2, 2022, appears to be the correct one. AR 11055.

In addition, the Index to the Administrative Record, ECF No. 21-1, incorrectly lists the SSDD as

contained at Tab 39, AR 11060. That citation, however, is to the first page of the Source Selection

Evaluation Board Report (and not the SSDD).

8

Vanquish. Complaint, Amentum Servs., Inc. v. United States, 2021 WL 5871734 (Fed. Cl.

2021) (No. 21-2029C), ECF No. 1. On October 18, 2021, Vanquish intervened in the case.

Motion to Intervene, Amentum Servs., Inc., 2021 WL 5871734 (No. 21-2029C), ECF No. 16.

On November 4, 2021, Amentum filed an amended complaint, asserting, inter alia, that:

(1) the “Army unreasonably deviated from the stated proposal instructions and

evaluation criteria set forth in the [S]olicitation by rejecting Amentum’s proposal as

technically unacceptable”; and (2) the Army should have conducted discussions,

pursuant to DFARS 215.306(c)(1), but failed to do so. Amended Complaint ¶¶ 131, 142,

Amentum Servs., Inc., 2021 WL 5871734 (No. 21-2029C), ECF No. 21. Amentum sought a

declaration “that the Army violated the requirements of DFARS 215.306(c)(1) by failing

to conduct discussions” and a “permanent injunction, requiring the Army to cancel its

improper award to Vanquish.” Id. at 32.

In response to Amentum’s amended complaint, the government, on December 3,

2021, filed an unopposed motion to stay the proceedings in that case and for a voluntary

remand to the Army, pursuant to Rule 52.2 of the Rules of the United States Court of

Federal Claims (“RCFC”). Motion to Remand, Amentum Servs., Inc., 2021 WL 5871734

(No. 21-2029C), ECF No. 26. In that motion, the government represented that the Army

“wishes to reconsider its award decision in light of the issues raised by Amentum’s

complaint.” Id. at 3. The government therefore requested, inter alia, that the Court

“remand this matter to [the Army] for reconsideration of the challenged decision and any

further administrative actions consistent with that reconsideration.” Id. Additionally,

the government asked the Court to “authorize . . . [the Army] to consider any further

information that the agency may gather during the remand in accordance with any

procedures that the agency may establish for that purpose.” Id. The government argued

that “[a] remand is in the interest of justice because it will provide the agency with an

opportunity to reconsider the award decision at issue in light of Amentum’s allegations

and any new information gathered during the proposed remand.” Id. at 2. Moreover, the

government asserted that “[d]uring the proposed remand, the agency potentially could

make a decision that could moot this action, in whole or in part, and may obviate the

need for further litigation in this Court.” Id. Finally, the government maintained that its

request was made “in good faith” and that “[w]hen, as in this case, ‘the agency’s concern

is substantial and legitimate, a remand is usually appropriate.’” Id. (quoting SKF

USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001)). The government’s motion

admitted no error and “[did] not commit to any particular course of corrective action.”

Amentum Servs., Inc., 2021 WL 5871734, at *1.

During a subsequent December 7, 2021, status conference to discuss the

government’s motion, “the government disclosed the existence of an internal

memorandum that addresses whether the agency planned to conduct discussions in the

procurement at issue.” Amentum Servs., Inc., 2021 WL 5871734, at *1. Based on that

memorandum, the government was “disinclined to defend the agency’s decision not to

conduct discussions.” Id. But, “[b]ecause the remedy for a violation of DFARS 215.306,

9

in any event, would likely [have been] an injunction requiring the agency to consider in

the first instance, under the proper standard, whether discussions should be conducted,”

the government urged this Court to “permit a remand . . . for that very purpose.” Id. The

government proposed that, on remand, “the agency will decide either (a) to conduct

discussions (and accept final proposal revisions), thus rendering the . . . dispute moot, or

(b) discussions are not warranted, but will memorialize its new decision for possible

judicial review, should Amentum seek to amend its complaint further to challenge such

a newly rendered decision.” Id.

Applying Keltner v. United States, 148 Fed. Cl. 552 (2020), and SKF USA Inc. v.

United States, 254 F.3d 1022 (Fed. Cir. 2001), this Court denied, in part, the government’s

motion for a voluntary remand. Amentum Servs., Inc., 2021 WL 5871734, at *2–3. In

particular, this Court explained:

[S]uch a remand — at least as proposed — would likely

“delay this case . . . and serve to only potentially improve the

government’s litigation posture.” The government’s mere

assertion that the agency desires another opportunity to

review its decision is insufficient to justify granting the broad

discretion the government seeks via its voluntary remand

motion. In that regard, while the need for finality at this

juncture perhaps is not overwhelming, the Court sees no

reason to order a remand and have this case remain on the

Court’s docket [pursuant to RCFC 52.2] while the agency

broadly reassesses its position, all while having an

unrestricted opportunity to effectively supplement the

administrative record — something the government could

not so easily accomplish during the litigation of this case.

Id. at *2 (second alteration in original) (quoting Keltner, 148 Fed. Cl. at 565).

The Court further found “that the scope of the government’s remand request [was]

inappropriate” in light of the government’s having “propose[d] broad discretion in its

remand request, including the right to take ‘any further administrative actions’ . . . and

the right to ‘consider any further information that the agency may gather during the remand

in accordance with any procedures that the agency may establish for that purpose.’” Amentum

Servs., Inc., 2021 WL 5871734, at *2 (quoting Motion to Remand at 3, Amentum Servs., Inc.,

2021 WL 5871734 (No. 21-2029C), ECF No. 26). The Court concluded that “[s]uch latitude

is neither appropriate nor just given the narrow issue the agency putatively seeks to

address — whether the agency should have conducted discussions in the first instance.”

Id.

10

In sum, this Court concluded that “the agency either stands by its award decision

or it does not, and the procurement decision at issue is either ripe for review or it is not”

but there was “no reason in this case [for the Court] to superintend a remand process by

adopting the government’s proposed voluntary remand order.” Amentum Servs., Inc.,

2021 WL 5871734, at *3. While the Court denied, in part, the government’s motion, and

“decline[d] to exercise its discretion to order a remand,” the Court imposed a “brief stay

of th[e] case for the government to reconsider its contract award decision — i.e., to

determine whether discussions [were] warranted . . . (pursuant to DFARS 215.306).” Id.

This Court noted that such an order represented “a fitting compromise, one to which no

party raised a substantial objection during the December 7, 2021, status conference,

when the Court proposed it.” Id. (emphasis added). The Court further ordered the

parties to file a joint status report (“JSR”), on or before the conclusion of the stay,

indicating whether:

1. The government has decided to rescind the disputed

contract award for the purpose of engaging in discussions

(and accepting final proposal revisions), thereby rendering

th[e] case moot;

2. The government has decided not to rescind the . . . contract

award, in which case the parties shall propose a schedule

for further proceedings; or

3. The government proposes to rescind the disputed award

decision for yet other reasons, in which case the parties shall

provide their respective positions as to how the case should

proceed, if at all.

Amentum Servs., Inc., 2021 WL 5871734, at *3 (first emphasis added) (footnotes omitted).

On January 24, 2022, the parties filed a JSR, selecting the Court’s first option. Joint

Status Report, Amentum Servs., Inc., 2021 WL 5871734 (No. 21-2029C), ECF No. 30. The

parties, including Vanquish, jointly represented as follows:

The [Army] has decided to rescind the disputed contract

award to Vanquish, establish a competitive range, engage in

discussions, and accept proposal revisions. The agency’s

decision renders Amentum’s protest moot. The parties intend

to file a joint stipulation of dismissal without prejudice with

each party to bear its own costs and fees.

Id. at 1. On January 28, 2022, the parties filed a joint stipulation of dismissal without

prejudice, Joint Stipulation of Dismissal, Amentum Servs., Inc., 2021 WL 5871734 (No. 21-

2029C), ECF No. 31, and the Court, accordingly, dismissed the case that same day.

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C. The Army’s Post-Remand Discussions Process

Following the dismissal of Amentum’s protest, the government implemented the

corrective action by establishing a competitive range. AR 20530 (Competitive Range

Determination – Final). The Army decided, “[a]fter evaluating the original compliance

review performed on each proposal,” that seven (7) offerors “will be within the

competitive range during discussions.” AR 20532–33 (noting that “[t]he Strict

Compliance memorandum for the record, dated 10 August 2020, provides details of the

original compliance review”). The Army included both Amentum and Vanquish in the

competitive range. AR 20533.

On April 27, 2022, the Army transmitted letters to offerors regarding discussions.

AR 20667–78. The letter to Vanquish, for example, advised that “[t]he Government

evaluated your proposal dated 22 June 2020 and you are hereby afforded the opportunity

to update your proposal.” AR 20675. Because Vanquish “was previously determined to

be Technically Acceptable,” Vanquish did not receive any evaluation notices (“ENs”)

critiquing its proposal for weaknesses or deficiencies. AR 20675. Amentum, however,

was instructed to review and address ENs — to “correct deficiencies” — in a revised

proposal. AR 20667; see also AR 20679–81 (Amentum ENs). Offerors were permitted to

make changes “to the[ir] original Cost/Price Factor” proposal. AR 20676.

On or about June 2, 2022, the Army issued the first-round answers to offeror

questions regarding the discussions process (“Q&As”). AR 20540–628. Question number

four asked: “Will the Government please confirm that in accordance with FAR 15.306

combined with Solicitation Section M.4.4 provisions, only Step-2 technically acceptable

offerors were included in the competitive range and these Discussions?” AR 20616. The

Army responded in the negative: “The Government is evaluating everyone that was

evaluated for technical whether or not it was determined acceptable or unacceptable.”

AR 20616. In that regard, the Q&A document specifically informed offerors that “[i]t’s

possible [that an] offeror did not move on to step 2 or 3 and therefore parts of the proposal

may not have been evaluated.” AR 20616 (Answer to Question No. 19). The Army

contemplated requesting final provision revisions (“FPRs”) prior to the close of

discussions. AR 20616 (Answer to Question No. 11).

While the Q&A document set a deadline of June 8, 2022, for revised proposals, AR

20616 (Answer to Question No. 7), the Army’s transmittal email specified the deadline as

June 17, 2022. See, e.g., AR 20624–25. A second, subsequent Q&A document transmitted

to offerors on or about June 8, 2022, see, e.g., AR 20629, clarified that EN revisions would

be due “COB 24 June 2022” with FPRs “due at a later date not yet identified.” AR 20630

(Q&A Round 2). On June 21, 2022, the Army issued a third Q&A document. AR 20642–

66. The Army maintained the previous deadline for EN revisions and set a deadline for

FPRs, instructing as follows: “EN revisions are due by COB 24 June 2022” and “[f]inal

12

proposal revisions are due by COB 22 July 2022.” AR 20642. The offerors responded to

ENs and submitted revised proposals. AR 20691–24210.

On August 3, 2022, the Army notified offerors “that the Government is closing

discussions and requesting” FPRs. AR 24237 (Amentum Close Discussion Letter); see also

AR 24245 (Vanquish Close Discussion Letter). The Army notified Amentum that it did

not have to submit a revised technical proposal because “[t]he Government considers the

Technical ENs resolved in full.” AR 24237; see also AR 24221 (Amentum EN Responses

Assessment) (“EVALUATOR ASSESSMENT OF OFFEROR RESPONSE: Updates have

been verified and EN response is acceptable.”). The Army set the new date for FPRs as

Monday, August 15, 2022. AR 24237.

On August 12, 2022, however, the Army notified offerors that the Army is “aware

that there are issues remaining that will require clarification” and thus, “[t]he due date

for [FPRs] is being extended and will no longer be due on 15 August 2022,” with a

“revised proposal submission date [to] be provided at a later time.” AR 24878 (Email to

Contractors Regarding Updated FPR Date). On September 1, 2022, the Army received

the offerors’ FPRs. See ECF No. 26 at 6 (“FPRs were not due at the filing of this protest,

but were since received [by the Army] on September 1, 2022.”); ECF No. 34 at 66

(government confirming that FRPs “have been submitted” to the Army).

D. Vanquish’s Agency Protests

During the above-described discussions process, on May 23, 2022 — well in

advance of the due date for EN responses, proposal updates, or FPRs — Vanquish filed

a timely pre-award protest with the Army. AR 24250. Vanquish asserted that “if the

Army has conducted discussions with offerors whose proposals were [originally] not

determined to be technically acceptable, then the Army has violated the terms of the

Solicitation.” AR 24251. Vanquish further argued that “[w]hile the Army has the

discretion to conduct corrective action, it does not have the discretion to deviate from the

terms of the Solicitation.” AR 24251.

On June 10, 2022, Vanquish filed yet another agency-level protest, AR 24384, “[t]he

purpose [of which] is to ensure that the Army’s corrective action is consistent” with the

JSR filed in Amentum’s earlier protest before this Court, AR 24385 (“Recent

communications from the Army demonstrate that it is engaging in corrective action that

is different than the corrective action described in the JSR.”). More specifically, based on

the Army’s June 2, 2022, Q&A document, Vanquish asserted that “[t]he Army’s response

to Question 4 confirms that the Army is engaged in discussions with offerors whose

proposals were determined to be technically unacceptable.” AR 24393. Vanquish

contended that including such offerors in the discussions process “violates Section

M[.]4.4.2 of the Solicitation.” AR 24393.

13

On June 22, 2022, while the first two-agency level protests pending before the

Army, Vanquish filed a third, primarily reiterating variations on the arguments advanced

in its first two agency-level protests. AR 24514; AR 24521 (“[I]n establishing the

competitive range and engaging in discussions with technically unacceptable offerors,

the Army is violating the terms of the Solicitation and the requirements of the FAR.”).

On July 25, 2022, the Army denied all three of Vanquish’s protests. AR 24834–46.11

Undeterred, on July 28, 2022, Vanquish filed a request for reconsideration with the Army,

AR 25062–81, which the Army summarily dismissed on August 25, 2022, AR 25082–83.

II. PROCEDURAL HISTORY

On August 10, 2022, Vanquish filed an action pursuant to 28 U.S.C. § 1491(b)(1),

“challeng[ing] the Army’s implementation of corrective action.” ECF No. 1 (“Compl.”)

¶¶ 1, 7. Vanquish asserts that “[b]ut for the Army’s unlawful and arbitrary and

capricious conduct in the corrective action, Vanquish would be selected for award of the

contract, and is therefore an interested party with standing to bring an action under 28

U.S.C. § 1491(b)(1).” Compl. ¶ 9. Vanquish’s complaint before this Court asserts two

counts with the same central theme: the Army improperly established a competitive

range and conducted “discussions with technically unacceptable offerors,” Compl. ¶ 53,

including Amentum, in violation of both FAR 15.306, Compl. ¶¶ 49–55 (Count I), and the

Solicitation, Compl. ¶¶ 56–63 (Count II). Vanquish’s complaint requested a preliminary

injunction and asserts that Vanquish is entitled to declaratory relief and a “permanent

injunction, requiring the Army to follow the FAR, the DFARS, and all of the terms of its

own Solicitation including the terms relating to the formation of a competitive range and

discussions with offerors.” Compl. at 16 (“Prayer for Relief”).

On August 15, 2022, Amentum filed a motion to intervene, ECF No. 8, which the

Court granted, EFC No. 10. That same day, the Court issued a status report order that

memorialized the government’s voluntary stay of the procurement to avoid the need for

the parties to litigate, and the Court to decide, Vanquish’s request for a preliminary

injunction. ECF No. 11. On August 26, 2022, the government filed the administrative

record, ECF No. 21, which was subsequently amended on September 8, 2022, ECF No. 24.

On September 12, 2022, the parties filed their respective motions for judgment on

the administrative record (“MJAR”). See ECF No. 25 (“Pl. MJAR”); ECF No. 26; ECF No.

27 (“Intv. MJAR”). On September 21, 2022, the parties filed timely response briefs. See

11Separate from Vanquish’s protests, Amentum, on August 11, 2022, filed an agency-level protest

with the Army, challenging an alleged “ambiguity that exists between the [S]olicitation . . . and

conflicting statements from the Army regarding which versions of the relevant Collection

Bargaining Agreements and Wage Determinations offerors should utilize.” AR 24849. There is

no evidence in the record that the Army has decided or otherwise resolved that protest.

14

ECF No. 30; ECF No. 31 (“Pl. Resp.”); ECF No. 32. On September 29, 2022, the Court held

oral argument. ECF No. 34 (“Tr.”).

III. JURISDICTION AND STANDING

The Tucker Act provides that an “interested party” may file an “action” in this

Court “objecting [1] to a solicitation by a Federal agency for bids or proposals for a

proposed contract or [2] to a proposed award or [3] the award of a contract or [4] any

alleged violation of statute or regulation in connection with a procurement or a proposed

procurement.” 28 U.S.C. § 1491(b)(1); see also Aero Spray, Inc. v. United States, 156 Fed. Cl.

548, 559 & n.18 (2021) (“Section 1491(b) actions are typically referred to as ‘bid

protests.’”). 12

“Standing is an integral part of jurisdiction.” Seventh Dimension, LLC v. United

States, 160 Fed. Cl. 1, 14 (2022) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).

“The party invoking federal jurisdiction bears the burden of establishing standing.”

CliniComp Int’l, Inc. v. United States, 904 F.3d 1353, 1358 (Fed. Cir. 2018) (citing Myers

Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002)). “Where

a plaintiff lacks standing, its case must be dismissed pursuant to RCFC 12(b)(1).” Aero

Spray, Inc., 156 Fed. Cl. at 556 (citing Media Techs. Licensing, LLC v. Upper Deck Co., 334

F.3d 1366, 1370 (Fed. Cir. 2003)).

To establish standing in a § 1491(b) action, a plaintiff must demonstrate that it is

an “interested party.” Id. at 559 (“[T]he Tucker Act, as amended by the Administrative

Dispute Resolution Act of 1996, . . . defines not only this Court’s jurisdiction over what

actions may be brought against the government, but also who has standing to pursue

them.”). In a post-award protest action, an “interested party” is “[1] an actual or

prospective bidder or offeror [2] whose direct economic interest would be affected by the

award of the contract or by failure to award the contract.” Am. Fed’n of Gov’t Emps., AFL-

CIO v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001) (quoting 31 U.S.C. § 3551(2)). In

a pre-award protest action — typically involving a challenge to the terms of a solicitation

— a plaintiff must allege facts that “demonstrate[] a ‘non-trivial competitive injury which

can be addressed by judicial relief.’” Weeks Marine, Inc. v. United States, 575 F.3d 1352,

12 Cf. Tolliver Grp., Inc. v. United States, 151 Fed. Cl. 70, 96–97 (2020) (“[A]lthough ‘[the

Administrative Dispute Resolution Act] covers primarily pre- and post-award bid protests,’ the

Federal Circuit in RAMCOR explicitly reversed this Court’s determination ‘that a [plaintiff] could

only invoke § 1491(b)(1) jurisdiction by including in its action an attack on the merits of the

underlying contract award’ or the solicitation.” (third alteration in original) (quoting RAMCOR

Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999))).

15

1362 (Fed. Cir. 2009) (quoting WinStar Commc’ns, Inc. v. United States, 41 Fed. Cl. 748, 763

(1998)). 13

Under either “interested party” test, “the question of prejudice goes directly to the

question of standing,” and thus “the prejudice issue must be reached before addressing

the merits.” Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.

2003); see also Myers, 275 F.3d at 1370 (“[P]rejudice (or injury) is a necessary element of

standing.”). Also, under either test, a plaintiff must allege facts — not mere conclusory

assertions of law — demonstrating prejudice. See Blue Origin Fed’n, LLC v. United States,

157 Fed. Cl. 74, 89 (2021) (“[T]he court must decide whether those alleged facts show the

protestor was prejudiced by the alleged errors.” (citing Statistica, Inc. v. Christopher, 102

F.3d 1577, 1581 (Fed. Cir. 1996))). The Court assumes the facts alleged in a plaintiff’s

complaint are true for the purposes of evaluating standing but not for the purpose of

resolving whether a plaintiff has demonstrated prejudice on the merits. See id. at 89 (“For

the limited purpose of determining whether it has standing, a protestor’s allegations are

assumed to be true.” (citing Am. Relocation Connections, L.L.C. v. United States, 789 F. App’x

221, 226 (Fed. Cir. 2019))); Am. Relocation Connections, 789 F. App’x at 226 (“For standing,

we presume the party bringing a bid protest will succeed on the merits of its claim and

ask whether it has alleged an injury (or prejudice) caused by the procuring agency’s

actions.”); Yang Enterprises, Inc. v. United States, 156 Fed. Cl. 435, 444 (2021) (“The Court

assumes well-pled allegations of error to be true for purposes of the standing inquiry.”).14

Amentum, but not the government, challenges Vanquish’s standing on the

grounds that Vanquish has failed to allege facts demonstrating prejudice. See Intv. MJAR

at 14–16. In any event, the Court has an independent duty to ascertain whether it

possesses jurisdiction to decide Vanquish’s claims and whether it has standing to pursue

them. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (“The federal courts are

under an independent obligation to examine their own jurisdiction, and standing ‘is

perhaps the most important of [the jurisdictional] doctrines.’” (alteration in original)

(quoting Allen v. Wright, 468 U.S. 737, 750 (1984))); see also RCFC 12(h)(3).

13Aero Spray, Inc., 156 Fed. Cl. at 562 (explaining that “[t]he Federal Circuit . . . modified that post-

award standing test for pre-award cases” because “applying the [post-award] ‘substantial chance’

test makes little or even no sense” where “an agency is in the early stages of the procurement

process and potential offerors have not even submitted proposals yet”).

14 To succeed on the merits, a plaintiff must prove its allegations. See L-3 Commc’ns Corp. v. United

States, 99 Fed. Cl. 283, 289 (2011) (“[T]he prejudice determination for purposes of standing

assumes all non-frivolous allegations to be true, whereas the post-merits prejudice determination

is based only on those allegations which have been proven true.”).

16

Having considered Amentum’s arguments and Vanquish’s complaint, the Court

concludes that Vanquish, by a hair, has alleged sufficient facts for a narrow ground of

protest. 15

Vanquish’s allegations of prejudice are limited to a single paragraph in its

complaint under a section entitled “Jurisdiction and Standing”:

[1] The Army previously awarded a contract to Vanquish

under this procurement prior to its current corrective action.

[2] Vanquish should not be forced to compete in a

procurement where an agency’s corrective action is unlawful

and violates the Solicitation. [3] But for the Army’s unlawful

and arbitrary and capricious conduct in the corrective action,

Vanquish would be selected for award of the contract, and is

therefore an interested party with standing to bring an action

under 28 U.S.C. § 1491(b)(1)[.]

Compl. ¶ 9. The first sentence in that paragraph is true and undisputed. The Court reads

the second sentence very generously as asserting a harm from having to compete for a

contract twice in violation of the Solicitation. Cf. Seventh Dimension, LLC, 160 Fed. Cl. at

35 (“[P]laintiff should not be made, quite unfairly, to compete twice for a procurement it

has all but won already . . . .”). As to that assertion, the Court agrees that Vanquish

adequately alleges prejudice pursuant to the pre-award “interested party” test, which the

Court assumes, but does not definitively determine, applies here. 16

As to the third sentence of that above-quoted paragraph, however, Vanquish

alleges zero facts demonstrating that “[b]ut for the Army’s unlawful . . . conduct[,] . . .

Vanquish would be selected for award of the contract.” Compl. ¶ 9. Conclusory

assertions of prejudice are not entitled to any weight, even at this stage. See Perry v. United

States, 149 Fed. Cl. 1, 33 (2020) (“[T]he complete lack of any factual allegations contained

in [the] Complaint to support an illegal exaction claim precludes this Court from

15The fact that a plaintiff may “successfully allege[] an injury (or prejudice) for standing

purposes” — because if the plaintiff “succeeded on the merits . . . it would have a ‘greater than

an insubstantial chance of securing the contract’” — does not excuse a plaintiff from proving

prejudice on the merits based on the administrative record. Am. Relocation Connections, 789 F.

App’x at 227 (quoting Info. Tech., 316 F.3d at 1319).

16 Vanquish, in its MJAR, argues that “the Army is forcing Vanquish to recompete for a contract

on an unlevel playing field, where the ground rules have been changed.” Pl. MJAR at 23.

Vanquish, however, does not allege or prove facts demonstrating either (1) an unlevel playing

field, or (2) that the ground rules have been changed. Nor does Vanquish establish how any such

changes impact Vanquish negatively or unfairly.

17

exercising subject-matter jurisdiction.”), aff’d, 2021 WL 2935075 (Fed. Cir. July 13, 2021).17

Moreover, that allegation of prejudice cannot possibly be ripe because (1) FPRs already

have been submitted, and (2) Vanquish may still win the contract award as a result of the

ongoing procurement process. See Coal. for Common Sense in Gov’t Procurement v. Sec’y of

Veterans Affs., 464 F.3d 1306, 1315–16 (Fed. Cir. 2006) (“It is appropriate for us to consider

ripeness even though it is not raised by the parties because ripeness is a jurisdictional

consideration that the court may address sua sponte.”). Accordingly, the Court grants,

in part, Amentum’s motion to dismiss pursuant RCFC 12(b)(1), with regard to the second

category of prejudice Vanquish asserts.

In any event, the Court rejects Vanquish’s entire protest as meritless.

IV. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 1491(b)(4), this Court applies the standard of review

contained in the Administrative Procedure Act (APA) § 10(e), 5 U.S.C. § 706. Nat’l Gov’t

Servs., Inc. v. United States, 923 F.3d 977, 981 (Fed. Cir. 2019). In particular, in accordance

with the APA, this Court reviews an agency’s procurement decisions to determine

whether they are “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A).

“In applying the APA standard of review, this Court affords considerable

deference to an agency’s procurement decisions.” IAP Worldwide Servs., Inc. v. United

States, 159 Fed. Cl. 265, 286 (2022) (citing Advanced Data Concepts, Inc. v. United States, 216

F.3d 1054, 1058 (Fed. Cir. 2000)). In reviewing an agency’s procurement decision, the

Court “determine[s] whether ‘the contracting agency provided a coherent and reasonable

explanation of its exercise of discretion.’” Impresa Construzioni Geom. Domenico Garufi v.

United States, 238 F.3d 1324, 1332–33 (Fed. Cir. 2001) (quoting Latecoere Int’l, Inc. v. U.S.

Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)). A plaintiff succeeds on the merits where

it demonstrates, based on a trial on the administrative record, 18 that either: “(1) the

[agency]’s decision lacked a rational basis; or (2) the procurement procedure involved a

violation of regulation or procedure.” Id. at 1332.

17The “[d]etermination of jurisdiction starts with the complaint, which must be well-pleaded in

that it must state the necessary elements of the plaintiff’s claim.” Holley v. United States, 124 F.3d

1462, 1465 (Fed. Cir. 1997). “Conclusory allegations of law and unwarranted inferences of fact do

not suffice to support a claim.” Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998). Of

course, “mere legal conclusions employing the right words to create a putative jurisdictional hook

are pretextual and cannot create jurisdiction where none exists.” Wickramaratna v. United States,

2022 WL 1124872, at *5 (Fed. Cl. Apr. 15, 2022).

18 See Bannum, 404 F.3d at 1354–56.

18

V. DISCUSSION

A. Vanquish Is Bound by Its Prior Agreement with the Parties During

Amentum’s Bid Protest Action

Vanquish’s challenge to the Army’s conduct here boils down to the assertion that

Vanquish “should not be forced to compete with Amentum and other offerors whose

proposals are technically unacceptable and . . . could not properly be placed in to [sic] the

competitive range under the Solicitation as published to all offerors more than two years

ago.” Pl. MJAR at 24. But Vanquish should have thought about all of this before it signed-

on to the JSR ultimately resulting in the dismissal of Amentum’s protest. Here is the

bottom line up front: the government is doing exactly what the parties agreed to;

Vanquish cannot now ask this Court to tell the government to reverse course.

As noted above, the parties, in response to Amentum’s earlier protest, jointly

represented to the Court as follows:

The [Army] has decided to rescind the disputed contract

award to Vanquish, establish a competitive range, engage in

discussions, and accept proposal revisions. The agency’s

decision renders Amentum’s protest moot. The parties intend to

file a joint stipulation of dismissal without prejudice with

each party to bear its own costs and fees.

Joint Status Report at 1, Amentum Servs., Inc., 2021 WL 5871734 (No. 21-2029C), ECF No.

30 (emphasis added).

Given that the parties agreed that Army’s corrective action would “render[]

Amentum’s protest moot,” id., and that Amentum’s complaint challenged not only the

Army’s general failure to conduct discussions but also the Army’s technical evaluation

of Amentum’s proposal, Amended Complaint ¶¶ 121–132, Amentum Servs., Inc., 2021 WL

5871734 (No. 21-2029C), ECF No. 21, the Court’s ineluctable conclusion is that the parties

must have agreed that Amentum would be included in the resulting discussions.

An easy counterfactual demonstrates the Court’s reasoning is correct. Imagine if

the Army’s corrective action did not include permitting Amentum to revise its proposal

in a FPR via discussions. According to Vanquish, Amentum agreed to a process that

cured nothing but rather left Amentum ineligible for award. 19 The absurdity of

19See Tr. 5:13–22 (Vanquish counsel agreeing that this Court should “read the joint status report”

as requiring the government to “establish a competitive range that excludes Amentum”); Tr. 9:14–

18 (“THE COURT: Wait. You want me to read [the JSR as] Amentum[’s] agreeing to a joint status

report that said the Government is going to go back [to conduct discussions] but exclude

19

Vanquish’s position is striking: Amentum gained literally nothing by agreeing to

corrective action in the JSR and the subsequent joint stipulation of dismissal. More

significantly still, such an interpretation would mean that the corrective action did not

moot Amentum’s protest — as it sought to challenge its technical rating even in the

absence of discussions. But we know that all the parties, and this Court, previously agreed

that the agreed-upon corrective action did render Amentum’s complaint moot.20 Another

way to think about the absurdity is this: were Amentum excluded from the competitive

range (and hence discussions) during corrective action, we would be right back where

we started — having to resolve Amentum’s complaint. Vanquish may now regret having

agreed to the rescission of its award and to the reopening of the competition, but that is

all water under the bridge.

In the absence of a time machine, Vanquish is out of luck; Vanquish is bound by

its agreement with the government and Amentum. “[W]here a party assumes a certain

position in a legal proceeding, and succeeds in maintaining that position, he may not

thereafter, simply because his interests have changed, assume a contrary position,

especially if it be to the prejudice of the party who has acquiesced in the position formerly

taken by him.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (alteration in original)

(quoting Davis v. Wakelee, 156 U.S. 680, 689 (1895)); see also Data Gen. Corp. v. Johnson, 78

F.3d 1556, 1565 (Fed. Cir. 1996) (“The doctrine of judicial estoppel is that where a party

successfully urges a particular position in a legal proceeding, it is estopped from taking

a contrary position in a subsequent proceeding where its interests have changed.”); City

of Cleveland v. Ameriquest Mort. Sec., Inc., 615 F.3d 496, 501 (6th Cir. 2010) (finding that the

plaintiff-appellant “waived its right to pursue [an] issue on appeal” where a joint motion

contained language that was “a clear and unequivocal waiver of [the plaintiff-appellant]’s

right to further pursue its motion to remand on appeal, and [the plaintiff-appellant]

neither contest[ed] the validity of the [j]oint [m]otion nor suggest[ed] an alternative

reading of th[e] clause”); Damato v. Sullivan, 945 F.2d 982, 987 n.3 (7th Cir. 1991) (“[S]ince

the [Defendant] acquiesced in the magistrate’s recommendation for remand, the issue of

whether it was within the district court’s authority to remand the case is not before us.”);

Out of Line Sports, Inc. v. Rollerblade, Inc., 213 F.3d 500, 502–03 (10th Cir. 2000) (joint motion

to release funds to satisfy judgment moots appeal of that judgment); Reeves v. Nicholson,

21 Vet. App. 66 (2006) (“[T]he appellant’s opening brief fails to acknowledge the prior

joint motion for remand, much less make an argument that there is a reason that it should

not be considered binding as to the facts agreed upon by the parties.”); Massicci v. Peake,

Amentum? [VANQUISH COUNSEL]: Well, they did agree to that . . . .”); Tr. 12:18–21 (Vanquish

counsel arguing that the JSR should be read as “establish[ing] a competitive range that follows

the solicitation, and the effect of that is to exclude Amentum”).

20Indeed, Vanquish agreed with the Court during oral argument that, under Vanquish’s strained

interpretation of the corrective action described in the JSR, only the discussions issue involving

DFARS 215.306 would have been solved “but not the other count” regarding Amentum’s

technical acceptability. Tr. 20:13–25.

20

2008 WL 4963401, at *3 (Vet. App. Mar. 17, 2008) (noting that “the parties’ joint motion

for a remand . . . represent[s] an agreement by the parties” such that the appellant, “who

was represented by counsel in crafting the agreement, cannot now disavow the

agreement for which he bargained”).

Vanquish, to support its strained interpretation of the parties’ agreement (as

reflected in the January 24, 2022, JSR at issue), points to email communications among

the parties that predate the filing of that JSR. AR 24926–69. In particular, Vanquish relies

upon draft JSR language that Amentum proposed that would have expressly committed

the government to including Amentum in the competitive range for discussions. Pl.

MJAR at 8 (citing AR 24933–37); Pl. Resp. at 11 (citing AR 24935). Counsel of record for

the government ultimately rejected Amentum’s proposed language; the Court knows this

because the next draft lacks Amentum’s language. AR 24938–46. That said, the

government responded to Amentum’s proposed language only in a private email to

Amentum’s counsel, and thus Vanquish could not have relied upon it (even assuming

there was some clear inference that could be drawn from that email). See AR 24938.

Thereafter, Amentum suggested yet further revisions, AR 24941–46, which the

government accepted, AR 24947, and Vanquish approved as well, AR 24956 (“This

revised version is agreeable to the intervenor.”). This Court, however, cannot, by

negative implication, infer from the government’s rejection of Amentum’s proposed

language that somehow the parties all understood and agreed that Amentum would not

be included in the competitive range. Such a speculative conclusion is not justified. For

all the Court knows, the government simply preferred brevity in the JSR — a worthy goal

the undersigned admittedly often fails to meet.

More significantly, the administrative record all but demonstrates that Vanquish’s

position is nothing more than a creative post hoc interpretation crafted by counsel in the

heat of litigation and never reflected Vanquish’s actual, contemporaneous view of the

corrective action when the parties first discussed it. In that regard, Vanquish reviewed

the government’s initial draft JSR, which contained a description of the putative

corrective action that was even more terse that what the parties ultimately adopted. AR

24927–31. Vanquish responded to the government’s proposed JSR in an email that

conclusively shows that Vanquish understood that the Army intended to do precisely

what Vanquish now challenges:

We assume the agency’s corrective action will extend to

Vanquish and will allow for Vanquish to submit a revised

proposal. Please confirm that. We also assume the agency’s

discussion will include Amentum and that Amentum also will be

permitted to submit a revised proposal. Will any other offerors be

included in the agency’s proposed corrective action? If so,

21

will that be limited only to those that were in the competitive

range? Please let us know.

AR 24931 (emphasis added). Indeed, the only real question Vanquish had was whether

“any other offerors [would] be included in the agency’s proposed corrective action.” AR

24931. Accordingly, Vanquish understood quite well that Amentum’s prior protest could

only be rendered moot by including Amentum in the corrective action. Vanquish could

have made its position clear (or opposed the corrective action) but failed to do so.21

Permitting Vanquish to unravel its previous agreement with the parties (which

resolved Amentum’s protest) would be remarkably prejudicial to both the government

and Amentum for obvious reasons. Not the least of these reasons are (1) the passage of

time and the government’s need to complete this procurement, (2) the government’s and

the other offerors’ investments in the discussions process and the creation and

submission of their respective FPRs, and (3) the fact that accepting Vanquish’s position

here would mean all the parties are back to square one regarding Amentum’s protest

action that the parties previously resolved (with the Court’s approval).

B. The Government Did Not Violate FAR 15.306 or the Terms of the Solicitation

In addition, the Court holds the government’s implementation of corrective action

is consistent with the FAR and the Solicitation. FAR 15.306(c) governs the formation of

the competitive range prior to conducting discussions and does not prohibit the

government from engaging in discussions with technically unacceptable offerors, as this

Court previously has explained:

[T]he entire point of discussions is to permit offerors “[a]t a

minimum” to address “deficiencies” and “significant

weaknesses” (amongst other information not relevant here).

FAR 15.306(d)(3); see also Aviation Ground Equip. Corp.,

B-417711.2, 2021 CPD ¶ 183, 2021 WL 2109102, at *8 (Comp.

Gen. May 3, 2021) (“The FAR makes clear one of the purposes

of discussions is to address deficiencies and significant

weaknesses in proposals.” (citing FAR 15.306(d)(3))). The

FAR further “encourage[s]” the contracting officer “to discuss

other aspects of the offeror’s proposal that could, in the

opinion of the contracting officer, be altered or explained to

enhance materially the proposal’s potential for award.” FAR

21During oral argument, the Court pointed out that, according to Vanquish’s argument here,

Vanquish in its contemporaneous correspondence with the government should have said “by the

way, Amentum should not be included.” Tr. 31:2–3. Counsel for Vanquish weakly responded

only that “I wish we had.” Tr. 31:4.

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15.306(d)(3). Thus, the FAR expressly distinguishes between,

on the one hand, “deficiencies” and “significant weaknesses”

— both of which “the contracting officer must . . . discuss”

with offerors — and, on the other hand, “other aspects” of a

proposal that may potentially impact the chance for award. Id.

(emphasis added).

IAP Worldwide Servs., Inc., 159 Fed. Cl. at 311 (second and third alterations in original).

Accordingly, “the government has the discretion to include even technically

unacceptable proposals in the competitive range.” Id. at 318 (citing Aviation Ground

Equip., 2021 WL 2109102, at *8 (“[T]he determination whether a proposal should be

included [in the competitive range] is principally a matter within the sound judgment of

the procuring agency. While exclusion of technically unacceptable proposals is

permissible, it is not required.” (citations omitted)); see also Dell Fed. Sys., L.P. v. United

States, 906 F.3d 982, 996 (Fed. Cir. 2018) (explaining that offerors “deemed unacceptable”

may improve their competitive position via discussions); Info. Tech., 316 F.3d at 1319

(holding that, to establish prejudice, a plaintiff must only demonstrate that its “chance of

securing the award must not have been insubstantial,” and that a plaintiff demonstrates

prejudice where the agency “improperly failed to conduct ‘discussions’ . . . [and] if it had,

[the plaintiff] would have been able to cure deficiencies in its bid”).

Moreover, even putting aside the parties’ agreement resolving Amentum’s

protest, the Solicitation does not preclude the government’s including Amentum in the

competitive range. To the contrary, the Solicitation contemplated discussions as part of

Step 1 of the evaluation process. See AR 173 (RFP § M.4.1). Indeed, as part of Step 1, the

Solicitation provides that “the Government reserves the right to conduct discussions [in

accordance with] [§] M.4.4 . . . if the Contracting Officer determines that discussions

would be advantageous to the Government.” AR 173 (describing “STEP 1: Technical

Factor Evaluations”). In turn, nothing in Section M.4.4 requires the government to

eliminate Amentum from the competitive range or requires the government to limit the

competitive range only to technically acceptable proposals. In that regard, Section

M.4.4.1 provides that “[o]nly Offerors determined Technically Acceptable will remain in

[a] subsequent competitive range and proceed to [Step 2].” AR 173 (emphasis added).

That provision necessarily implies that there is an earlier competitive range

determination for the purposes of discussions within Step 1.

Vanquish has an entirely different reading of the Solicitation. According to

Vanquish, Section M.4.4.1’s references to “discussions” and a “subsequent competitive

range determination” are not being used as those terms of art are defined in the FAR but

rather simply refer to the agency’s down-select process from Step 1 to Step 2. Pl. MJAR

at 15–16; Tr. 36:17–22. Thus, Vanquish contends that discussions may only take place as

part of Step 2. Pl. MJAR at 2, 5, 16. But the Court cannot ignore the plain meaning of

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those terms of art, particularly given the RFP’s reference to discussions in Step 1 (RFP

§ M.4.1), and to FAR 15.306 in Section M.4.4.1. See AR 173. Also, if the Solicitation really

contemplated discussions only as part of Step 2, as Vanquish contends, then Section

M.4.4.1 would be rendered superfluous because Section M.4.4.2 itself addresses Step 2

discussions. This Court should ordinarily read solicitations as a whole to avoid rendering

some provisions meaningless. See Banknote Corp. of Am. v. United States, 365 F.3d 1345,

1353 (Fed. Cir. 2004) (“[W]e must consider the solicitation as a whole, interpreting it in a

manner that harmonizes and gives reasonable meaning to all of its provisions.”). In any

event, the Solicitation expressly provided the government with the flexibility to dispense

entirely with the two-step down-select process. See AR 174 (RFP § M.4.1.f) (“The

Government reserves the right to simultaneously evaluate Technical, Past Performance

(if applicable), Small Business Participation (if applicable), and Cost/Price proposals.”).22

Because the government could disregard the multi-step evaluation process, there is no

necessary distinction between Step 1 and Step 2, and the government was free to form a

competitive range and conduct discussions at any point during the evaluation process.

VI. CONCLUSION

For the above reasons, the Court DENIES Plaintiff’s motion for judgment on the

administrative record and GRANTS Defendant’s and Defendant-Intervenor’s respective

motions for judgment on the administrative record. Accordingly, the Clerk of the Court

is directed to enter JUDGMENT for Defendant and Defendant-Intervenor, terminating

this case.

IT IS SO ORDERED.

s/Matthew H. Solomson

Matthew H. Solomson

Judge

22 Vanquish conceded this point during oral argument. See Tr. 10:22–24 (“[T]here’s a reserved

right in the RFP that the Government can review all of the evaluation factors at the same time.”).

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