# Mil-Mar Century Corp. v. United States

> United States Court of Federal Claims · June 12, 2013 · 111 Fed. Cl. 508

URL: https://www.frixlaw.com/law-library/cases/899857

## Case

- **Full name:** MIL-MAR CENTURY CORP., Plaintiff, v. the UNITED STATES of America, Defendant, and the Entwistle Co., Defendant-Intervenor
- **Court:** United States Court of Federal Claims
- **Decided:** June 12, 2013
- **Citations:** 111 Fed. Cl. 508; 2013 WL 2631733
- **Precedential status:** Published
- **Opinion:** Opinion by Hewitt
- **Judges:** Hewitt
- **Cited by:** 47 later opinions in the Frix Law Library

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## Opinion text

In the United States Court of Federal Claims
No. 13-131 C

(E-Filed Under Seal: May 23, 2013) 1
(E-Filed with Redactions: June 12, 2013)
________________________________________
)
)
MIL-MAR CENTURY CORP., )
)
Plaintiff, )
v. ) Post-Award Bid Protest; Claims
) by Incumbent Contractor of
THE UNITED STATES OF AMERICA, )
Improper Technical Evaluation of
)
Proposals, Unequal Discussions,
Defendant, )
) Improper Price Realism Analysis,
& ) and Flawed Best Value Analysis
)
THE ENTWISTLE CO., )
)
Defendant-Intervenor. )
)
________________________________________ )

Barbara Ann Duncombe, Dayton, OH, for plaintiff. Suzanne Sumner, Tricia C. Bell,
Casie E. Hollis and Joshua D. Prentice, Dayton, OH, of counsel.

Barbara E. Thomas, Trial Attorney, with whom were Stuart F. Delery, Principal Deputy
Assistant Attorney General, Jeanne E. Davidson, Director, and Deborah A. Bynum,
Assistant Director, Commercial Litigation Branch, Civil Division, United States
1
This Opinion was filed under seal on May 23, 2013, Docket Number (Dkt. No.) 44.
The court instructed the parties to file any requests for the redaction of protected material on or
before June 5, 2013. Id. at 1, n.1. In response to the court’s directive of May 23, 2013, plaintiff
timely filed Plaintiff’s Motion to Redact the Court’s Opinion, Dkt. No. 46, and defendant filed
Defendant’s Unopposed Motion for Leave to File Proposed Redactions Out of Time (defendant’s
Motion for Leave), Dkt. No. 47. In an order dated June 6, 2013, the court granted defendant’s
Motion for Leave and ordered defendant to “file a motion to redact protected materials on or
before Monday, June 10, 2013.” Order of June 6, 2013, Dkt. No. 48. In response to the court’s
directive of June 6, 2013, defendant timely filed Defendant’s Motion to Redact Protected
Material Contained in the Court’s Sealed May 23, 2013 Opinion, Dkt. No. 49. The parties’
motions to redact are GRANTED.
Department of Justice, Washington, DC, for defendant. Wade L. Brown, Associate
Command Counsel, and George W. Day, Attorney-Advisor, United states Army
TACOM, of counsel.

Henry E. Steck, Fort Worth, TX, for defendant-intervenor.

OPINION

HEWITT, Chief Judge

This is a post-award bid protest brought by plaintiff Mil-Mar Century Corp. (Mil-
Mar or plaintiff), the incumbent contractor responsible for designing and manufacturing
Load Handling System Compatible Water Tank-Rack Systems (known as Hippos). See
Compl. for Declaratory and Injunctive Relief (Complaint or Compl.), Docket Number
(Dkt. No.) 1, ¶¶ 2, 14-17. Plaintiff protests the award by the Army Contracting
Command-Warren (the Agency) to The Entwistle Company (Entwistle or intervenor) of a
contract valued at $69 million for the production of Hippos. See id. ¶¶ 2, 16. Plaintiff
contends that “[t]he Agency’s actions were irrationally based, arbitrary, capricious, and
contrary to applicable statutes and regulations.” Id. ¶ 4.

Before the court are plaintiff’s Complaint, filed February 20, 2013; Plaintiff’s
Motion and Memorandum in Support of Motion for Judgment upon the Administrative
Record (plaintiff’s Motion or Pl.’s Mot.), Dkt. No. 28, filed March 18, 2013 2; Defendant-
Intervenor’s Response Opposing Plaintiff’s Motion for Judgment on the Administrative
Record and Cross-Motion for Judgment on the Administrative Record with Supporting
Memorandum (intervenor’s Motion or Intervenor’s Mot.), Dkt. No. 29, filed April 1,
2013; Defendant’s Opposition to Plaintiff’s Motion for Judgment upon the
Administrative Record and Cross-Motion for Judgment upon the Administrative Record

2
Plaintiff’s Motion and Memorandum in Support of Motion for Judgment upon the
Administrative Record (plaintiff’s Motion or Pl.’s Mot.), Dkt. No. 28, filed March 18, 2013,
seeks to “incorporate[] . . . by reference” facts and arguments from plaintiff’s Memorandum in
Support of Plaintiff’s Motion for Preliminary Injunction (plaintiff’s Motion for Preliminary
Injunction), Dkt. No. 5. See, e.g., Pl.’s Mot. 2 n.1, 6 n.3, 15 n.7. The court denied plaintiff’s
Motion for Preliminary Injunction in an order dated February 21, 2013. Order of Feb. 21, 2013,
Dkt. No. 16. Rule 5.4(b)(3) of the Rules of the United States Court of Federal Claims (RCFC)
provides, “A party must not incorporate a brief or memorandum by reference; the court will
disregard any such incorporation.” RCFC 5.4(b)(3). The court therefore disregards the attempt
by Mil-Mar Century Corp. (Mil-Mar or plaintiff) to incorporate by reference all or any portion of
plaintiff’s Motion for Preliminary Injunction. Cf. Def.’s Opp’n to Pl.’s Mot. for J. upon the
Admin. R. & Cross-Mot. for J. upon the Admin. R. (defendant’s Motion or Def.’s Mot.), Dkt.
No. 30, at 2 n.1 (objecting “to plaintiff’s attempts to evade the page limitations set forth in the
Court’s rules--and agreed upon during the initial status conference in this litigation--by
‘incorporating’ portions of other filings into its motion for judgment”).
(defendant’s Motion or Def.’s Mot.), Dkt. No. 30, filed April 1, 2013; Plaintiff’s
Response to Defendant’s Motion for Judgment upon the Administrative Record (Pl.’s
Resp.), Dkt. No. 31, filed April 8, 2013; Defendant-Intervenor’s Reply to Plaintiff’s
Response, Dkt. No. 32, filed April 15, 2013; and Defendant’s Reply in Support of Its
Cross-Motion for Judgment upon the Administrative Record (Def.’s Reply), Dkt. No. 34,
filed April 15, 2013.

The United States (the government or defendant) filed the Administrative Record
(AR) on March 4, 2013, see Def.’s Notice of Filing of Admin. R., Dkt. No. 25, and the
court granted Defendant’s Consent Motion for Leave to File Corrected Administrative
Record, Dkt. No. 26, on March 11, 2013, see Order of Mar. 11, 2013, Dkt. No. 27. The
parties completed briefing on April 15, 2013, and the court held oral argument on Friday,
April 19, 2013 at 10:00 a.m. Eastern Daylight Time. 3 See Order of Feb. 21, 2013, Dkt.
No. 14, at 2.

Plaintiff argues that “[t]he Agency improperly and unequally evaluated
[Entwistle’s] technical proposal, conducted unequal discussions, . . . conducted an
improper price realism analysis” and conducted a flawed best value analysis. Compl. ¶ 3.
Defendant counters that, despite plaintiff’s “flurry of arguments to the contrary,” Def.’s
Mot. 17, the Agency “acted reasonably and in accordance with the solicitation at each
stage of its Hippo procurement,” Def.’s Reply 1.

For the reasons stated below, plaintiff’s Motion is DENIED, and the Motions of
defendant and intervenor are GRANTED.

I. Background 4

A. The Solicitation

On March 20, 2012 the Agency issued Solicitation No. W56HZV-11-R-0171 (the
Solicitation or Request for Proposals (RFP)), a 100% small business set aside that sought
proposals for a firm fixed-price, three-year Indefinite Delivery/Indefinite Quantity
contract for the manufacture and supply of Hippos. Compl. ¶ 16, 28. See generally AR
71-281 (RFP). Hippos are framed stainless steel water tanks, see AR 488, 490-91 (Hippo
3
The oral argument held on Friday April 19, 2013 was recorded by the court’s
Electronic Digital Recording (EDR) system. The times noted in citations to the oral argument
refer to the transcript of the EDR record of the oral argument (Tr.).
4
The facts are taken from plaintiff’s Complaint for Declaratory and Injunctive Relief
(Complaint or Compl.), Dkt. No. 1, the corrected Administrative Record, see Dkt. Nos. 25-27,
plaintiff’s Motion and defendant’s Motion. Unless otherwise noted, the facts do not appear to be
in dispute.
Purchase Description) (stating that the water tank was to be made of stainless steel and
describing frame requirements), that are “capable of transporting 2000 gallons of potable
water, and can operate at temperatures of -25 degrees Fahrenheit,” 5 AR 72 (RFP). The
frame of a Hippo water tank is designed to “meet International Organization for
Standardization (ISO) container requirements to allow stacking of tankracks and meet
requirements of worldwide intermodal shipping.” AR 480 (Hippo Purchase Description).
In addition to water tanks and frames, Hippos are equipped with heating devices, hose
reels, water pumps and engines. Id. at 480, 494.

The Solicitation represented the first competitive procurement for Hippos. AR
1767 (Initial Price Evaluation Report (Initial PER)). All previous procurements had been
awarded to plaintiff on a sole-source basis. 6 Compl. ¶ 14. Although the Agency
considered its contracts with Mil-Mar successful, the Agency found “no compelling
reason to believe” that its contracts with Mil-Mar yielded “the optimum in price.” AR
2665 (Acquisition Plan).

The Solicitation provided that the offeror selected for award would be required to
have “six First Article Testing (FAT) units” approved by the Agency before the Agency
ordered production of the remaining units. AR 72 (RFP). Once the Agency approved the
FAT units, the selected offeror would be responsible for producing up to 311, 260 and
274 Hippos in the first, second and third years of production, respectively, id. at 76, at an
estimated maximum production rate of thirty-five Hippos a month, id. at 72. The
selected offeror would also be responsible for developing technical manuals for the
Hippos. Id. at 132.

Offerors were to submit proposals that would include volumes dedicated to the
discussion of three factors: Production Capability, Experience 7 and Price. Id. at 262.

5
Load Handling System Compatible Water Tank-Rack Systems (known as Hippos)
“fullfil[] the [United States] Army requirement for . . . mobile hard-wall water tanker[s] to
transport and distribute water at the brigade level.” AR 2658 (Acquisition Plan).
6
The first non-competitive Hippo contract was awarded to plaintiff on September 21,
2001. AR 1767 (Initial Price Evaluation Report (Initial PER)). Plaintiff produced fifty-four
Hippos under the first contract, which established plaintiff as the original manufacturer of the
Hippo. Id. On August 25, 2006, plaintiff was awarded the second non-competitive Hippo
contract, pursuant to which plaintiff produced approximately 770 Hippos, and, on December 17,
2010, plaintiff was awarded the third non-competitive Hippo contract, pursuant to which plaintiff
produced 469 Hippos. Id.
7
The primary difference between an agency’s evaluation of offerors’ experience versus
offerors’ past performance is that an evaluation of experience “does not consider the quality of
the work performance, whereas” evaluation of past performance does. AR 2189 (Procuring
Contracting Officer Determination to Waive Past Performance as an Evaluation Factor); see also
Section L of the Solicitation provided offerors with instructions regarding the required
content of the proposals, see id., and Section M of the Solicitation provided offerors with
information regarding the Agency’s evaluation of the proposals, see id. at 276. The court
discusses Section L and Section M of the Solicitation in more detail below.

1. Section L of the Solicitation: Instructions, Conditions and Notices to
Offerors

Section L of the Solicitation provided offerors with instructions, conditions and
notices. Id. at 262. Section L.4 of the Solicitation discussed what information offerors
were to include in the volume dedicated to the Production Capability factor. Id. at 263.
Under this factor, offerors were to provide letters of commitment from sub-contractors
and to address the following considerations: manufacturing facilities, production
approach, key tooling and equipment and time-phased critical path schedule. Id. at 263.
Plaintiff does not raise any specific arguments related to the Production Capability factor.
See Tr. 58:3-5 (Barbara E. Thomas (Ms. Thomas)) (“Mil-Mar hasn’t made any
arguments that Entwistle submitted insufficient information about its production
capabilities.”).

Section L.5 of the Solicitation discussed what information offerors were to include
in the volume dedicated to the Experience factor. AR 264 (RFP). Under this factor,
offerors were to identify up to five “relevant [c]ontracts” that had been performed in the
past three years. Id. Section L.5.3 defined relevant contracts as those that “are
comparable in scope to the requirements of this RFP” and further provided that “relevant
Experience with the following scope of work [(SOW)] requirements [would] be assessed
by the Government:” (1) comparable items, or the “[s]upply of sanitary liquid handling
and storage systems of a complexity comparable to the Hippo”; (2) technical manuals, or
the “[s]upply of Technical Manuals of a complexity comparable to the Technical
Manuals required in this RFP”; (3) delivery, or the “[d]elivery of water handling and
storage systems of complexity comparable to the Hippo” at a production rate comparable
to thirty-five Hippos a month; (4) low temperature requirement, or the production of
“sanitary liquid handling and storage systems capable of meeting . . . low-temperature
requirements”; and (5) welding, or the “[w]elding [of] stainless steel in accordance with
American Welding Society [Standard] D18.3/18.3M.” Id. at 265. Section L.5.4 provided
that, for each of the contracts identified, offerors should include, among other
information, copies of the actual SOW provisions of each contract and “[a] discussion of
specific similarities between these contract [SOWs] and the [SOW] herein.” Id. Section
L.5.4 also stated that “[f]ailure to provide the information requested under [Section] L.5.4
. . . so that the Government can verify claimed experience may result in a determination

AR 2281 (Source Selection Authority (SSA) Final Briefing) (stating that “[f]or purposes of this
evaluation, ‘past performance’ will be interpreted to mean ‘experience’ and the evaluation will
not consider the quality of performance on prior offeror efforts”).
that your proposal is unacceptable and the elimination of your proposal from
consideration for award.” Id.

Section L.6 of the Solicitation discussed the information offerors were to include
in the volume dedicated to the Price factor. Id. Under this factor, offerors were to list all
proposed prices in a Microsoft Excel spreadsheet labeled as Attachment 16, including
proposed material costs, subcontractor costs over $5,000 and labor-related costs (broken
down into labor rates and hours). Id. at 265-66; cf. AR 550-54 (Attachment 16 template).
Attachment 16 included a Bill of Material, in which offerors were to identify all items
with an estimated cost of $500 or more; offerors were allowed to aggregate the total
value of items costing less than $500. See AR 266 (RFP); AR 554 (Bill of Material).
Section L.6.6 provided that “the Government reserves the right, as a clarification under
[Federal Acquisition Regulation (FAR)] 15.306(a), to request additional or more detailed
price breakdown data to support its determination of price reasonableness.” AR 266
(RFP).

2. Section M of the Solicitation: Evaluation Factors for Award

Section M of the Solicitation addressed the criteria by which the Source Selection
Evaluation Board (SSEB) would evaluate proposals for award. Id. at 276-77; AR 1857
(Contract Review Board Abstract) (discussing the SSEB’s role in evaluating proposals).
The findings of the SSEB would inform the decision of the Source Selection Authority
(SSA), AR 1857 (Contract Review Board Abstract), “the official designated to direct the
source selection process and select the Offeror for contract award,” AR 277 (RFP); see
AR 2341 (Source Selection Organization Chart) (illustrating the relationship between the
SSA and the SSEB).

The Solicitation provided that the SSA would evaluate proposals “using a trade-
off process to determine which proposal provides the most advantageous and realistic
proposal (i.e. best value) considering the three factors: 1) Production Capability, 2)
Experience, and 3) Price.” AR 276 (RFP). That is, “in selecting the offer which is most
advantageous and represents the best value to the Government,” the SSA would consider
“the relative strengths/weaknesses and risks of each Offeror’s proposal in the non-price
factors as well as the total evaluated price.” Id. The Solicitation provided that the
government would award the contract to the offeror that (1) represented the best value to
the government, (2) submitted a proposal that met “all the material requirements of [the]
solicitation” and (3) met certain responsibility requirements. Id. at 277.

Section M.4 of the Solicitation discussed the relative weight to be given to each
factor: “Production Capability is the most important factor and is slightly more important
than [E]xperience,” with “Experience [being] slightly more important than Price.” Id.
When combined, the non-price factors would be considered more important than price.
Id. at 278. However, the Solicitation provided that--“[n]otwithstanding the relative order
of importance of the evaluation factors as stated”--the Price factor “may be controlling
when . . . [t]he advantages of a higher rated, higher price[d] proposal are not considered
to be worth the price premium.” Id. at 277.

With respect to the volume dedicated to the Production Capability factor, Section
M.5 provided that the government would assess “offerors[’] capacity to provide for
timely delivery of supplies in satisfaction of contract requirements,” id. at 278, and
offerors would be a assigned a rating of outstanding, good, acceptable, marginal or
unacceptable, AR 2412 (Source Selection Plan). With respect to the volume dedicated to
the Experience factor, Section M.6 provided that “the Government [would] assess the risk
that the offeror [would] successfully meet contract requirements based upon prior
experience with the [five SOW] requirements” set forth in Section L.5.3, see AR 278
(RFP), and offerors would be assigned a rating of very relevant, relevant, somewhat
relevant or not relevant, 8 AR 2413 (Source Selection Plan); Compl. ¶ 36. Section M.7
addressed the volume dedicated to the Price factor, in which the government would
“assess the total evaluated price to the Government.” AR 278 (RFP). Section M.7 also
provided that the government would evaluate “the reasonableness of the proposed prices
to accomplish the solicitation requirements,” and that “[t]he Government may reject a
proposal which is not realistic, or not reasonable, as to price.” Id.; cf. id. (stating that
“[r]easonableness exists when an offered price does not exceed what would be incurred
by a prudent person in the conduct of competitive business”); infra Part III.D (discussing
the Agency’s price realism analysis).

Section M of the Solicitation also listed circumstances under which the
government could reject proposals. AR 276 (RFP). The Solicitation provided that the
government “may” reject proposals that “omit[] significant material data and information
required by Section L;” are “unrealistically . . . low in price” and “reflect[] an inherent
lack of technical competence or a failure to comprehend the complexity and risks
required to perform the solicitation requirements;” or “contain[] any unexplained
significant inconsistency between the proposed effort and cost and/or price, which

8
These experience ratings are described by the Source Selection Authority (SSA) as
follows:

[A]n assessment of Very Relevant Experience will be considered to reflect a very
low risk of unsuccessful performance[,] . . . an assessment of Relevant Experience
will be considered to reflect a low risk of unsuccessful performance[,] . . . an
assessment of Somewhat Relevant Experience will be considered to reflect a
moderate risk of unsuccessful performance[,] . . . [and] an assessment of Not
Relevant Experience will be considered to reflect a high risk of unsuccessful
performance.

AR 2281 (SSA Final Briefing); AR 2413 (Source Selection Plan).
implies the offeror . . . has an inherent misunderstanding of the scope of work, or . . . has
an inability to perform the resultant contract.” Id.

The Solicitation further provided that the government intended to award the
contract without conducting discussions. Id. “Where award will be made without
discussions, exchanges with Offerors are limited to clarifications as defined in FAR
15.306(a).” Id. Although “the Government reserve[d] the right to hold discussions, if
necessary,” the Solicitation advised offerors to submit their “best terms with respect to
the price and non-price factors.” Id.

B. Responses to the Solicitation and the SSEB’s Evaluation of Proposals

Seven offerors submitted proposals in response to the Solicitation: [* * *],
Entwistle, [* * *], [* * *], [* * *], Mil-Mar, and [* * *]. AR 1878 (Source Selection
Decision Document (SSDD)). Proposals were received May 21, 2012; however, on June
6, 2012 the Agency issued amendments to the Solicitation, 9 and the seven offerors
submitted modified proposals on June 14, 2012. Id.; AR 1857 (Contract Review Board
Abstract).

The SSEB evaluated the proposals submitted by the seven offerors pursuant to
Section M of the Solicitation. AR 1878 (SSDD); cf. supra Part I.A.2 (discussing Section
M). The SSEB assigned Mil-Mar the highest ratings in both the Production Capability
and Experience factors. AR 1879 (SSDD). However, Entwistle’s total evaluated price of
$69,063,943 was approximately [* * *]% lower than that of Mil-Mar’s ($[* * *]) and
approximately [* * *]% lower than that of the next lowest offeror, [* * *] ($[* * *]). See
id.; see also id. at 1905 (stating that Mil-Mar’s total evaluated price was [* * *]% higher
than Entwistle’s and that the second lowest offeror’s price was [* * *]% higher than
Entwistle’s); AR 1857 (Contract Review Board Abstract) (same). A chart of the ratings
the SSEB assigned each offeror for the Production Capability and Experience factors and
each offeror’s total evaluated price is below:

Offeror Production Capability Experience Total Evaluated Price
[* * *] Good Relevant $[* * *]
Entwistle Good Relevant $69,063,943
[* * *] Good Relevant $[* * *]
[* * *] Acceptable Somewhat Relevant $[* * *]
[* * *] Marginal Not Relevant $[* * *]
Mil-Mar Outstanding Very Relevant $[* * *]

9
The amendments to Solicitation No. W56HZV-11-R-0171 (the Solicitation or Request
for Proposals (RFP)) issued on June 6, 2012 “clarif[ied] certain matters related to projected
delivery requirements.” AR 1878 (Source Selection Decision Document (SSDD)).
[* * *] Marginal Not Relevant $[* * *]

AR 1879 (SSDD).

C. Requests for Clarification

Because Entwistle’s total evaluated price was “substantially less than any other
offeror’s,” the government sought “to clarify” Entwistle’s pricing. Def.’s Mot. 10; see
Pl.’s Mot. 15-16 (stating Entwistle’s “extremely low” price “forced the Agency to
consider the price realism of Entwistle’s proposal to ascertain whether or not it reflected
an understanding of the technical requirements of the Hippo or would expose the
Government to undue risk”). As described above, see supra Part I.A.1, Section L.6.6 of
the Solicitation provided that, pursuant to FAR 15.306(a), the government could “request
additional or more detailed price breakdown data to support its determination of price
reasonableness” as a clarification, AR 266 (RFP).

On July 25, 2012 the government issued to Entwistle four requests for clarification
that, defendant contends, were permissible under FAR 15.306(a) and Section L.6.6 of the
Solicitation. 10 See AR 1772-73 (Initial PER); AR 1844-54 (four requests for
clarification); cf. supra Part I.A.1 (discussing Section L.6.6). The four requests for
clarification are below:

[(1)] Please substantiate your proposed tank and engine price with quotes,
invoices, and item/material specifications.

....

[(2)] Please clarify the cost (material and labor) associated with fabricating
the ISO frame.

....

[(3)] Please address the discrepancies in your direct labor hours as
described below:

- There is a difference in the assembly hours shown in the [P]rice
Volume . . . and the Production [Capability] Volume . . . . Please
clarify which assembly hour reference is correct and provide the
basis for the total hours identified.

10
Plaintiff contends that two of these exchanges constituted discussions. See Compl. ¶¶
14-15; Pl.’s Mot. 18-20. The court addresses this dispute in Part III.C below.
- Total direct hours in the Price Volume . . . do not correspond to the
direct labor cost . . . . Please clarify hours and cost.

....

[(4)] Please clarify how your proposed labor hours are adequate to carry out
the steps necessary for production of the [FAT] items and production
quantities.

AR 1773 (Initial PER).

Entwistle responded to the four requests for clarification two days later, on July
27, 2012. Id. at 1772. In response to the first request for clarification, Entwistle attached
quotations from its proposed subcontractors for the water tank and engine. Id. at 1773;
see id. at 1775 (water tank quotation), 1776 (engine quotation). In response to the second
request for clarification, Entwistle stated: “The estimated material cost for the frame is
$[* * *]. The estimated labor for fabricating the frame is [* * *] hours.” Id. at 1773. In
response to the third request for clarification, Entwistle stated: “The [P]rice Volume . . .
represents the final [direct labor hour] estimate[],” and that “[t]he total direct [labor]
hours in the Price Volume . . . should reflect [* * *] hours”; Entwistle also attached a
corrected Attachment 16 that incorporated the clarification to its total direct hours. See
id. (showing attachment); see id. at 1777 (corrected Attachment 16); AR 1833 (Entwistle
Price Evaluation Report (Entwistle PER)) (addressing Entwistle’s response to the third
request for clarification). In response to the fourth request for clarification, Entwistle
stated: “The production labor hours were estimated for each labor category based on our
understanding of the solicitation requirements. Based on our experience with design
programs, a factor was applied to the production hours to arrive at the first article labor
hours.” AR 1774 (Initial PER).

D. Price Evaluation Reports

After the Agency received Entwistle’s responses to its requests for clarification,
the SSEB prepared the following price evaluation reports: (1) the Initial Price Evaluation
Report, dated July 31, 2012, which was prepared as to all offerors, see AR 1765 (Initial
PER); (2) the Price Evaluation Report, dated August 8, 2012, and the Addendum to the
Price Evaluation Report, dated August 15, 2012, which were specific to Entwistle, see
AR 1782 (Entwistle PER); AR 1832 (Addendum to the Entwistle Price Evaluation Report
(Entwistle PER Addendum)); and (3) the Final Price Evaluation Report, dated August 23,
2012, which was prepared as to all offerors, see AR 1835 (Final Price Evaluation Report
(Final PER)). The court discusses each evaluation report, in turn, below.

1. The Initial Price Evaluation Report
The SSEB prepared the Initial Price Evaluation Report in accordance with Section
M.7.1 of the Solicitation, which required the government to assess “‘the reasonableness
of the proposed prices to accomplish the solicitation requirements.’” AR 1766 (Initial
PER) (quoting Section M.7.1 of the Solicitation); cf. AR 278 (RFP) (stating that
“[r]easonableness exists when an offered price does not exceed what would be incurred
by a prudent person in the conduct of competitive business”). The SSEB concluded that
each offeror’s total proposed price was reasonable based on adequate price competition.
AR 1768-70 (Initial PER); cf. id. at 1767 (defining “adequate price competition” under
FAR 15.403-1(c)(1)).

“For evaluation purposes to test price realism,” the SSEB reviewed “five major
items from each offeror’s Bill of Material [in Attachment 16]”: the frame, water tank,
engine, hose reel and pump. Id. at 1768. The SSEB verified that, with the exception of
Entwistle and [* * *], all of the offerors included the costs of each of these five items in
their Bill of Material. See id. at 1768-70. Although Entwistle failed to include the cost
of the frame in its Bill of Material, the SSEB verified that this was because Entwistle
planned to “build and fabricate the frame” rather than purchase it. 11 See id. at 1768.

Moreover, recognizing that Entwistle’s price was “very low in comparison to the
other offerors as well as in comparison to past history,” the SSEB attempted to verify
certain information in Attachment 16 of Entwistle’s Price Volume. Id. For example, the
SSEB verified Entwistle’s proposed cost of the water tank “via telephone with the tank
vendor.” Id. Notwithstanding the fact that Entwistle’s “total price appear[ed] to be very
low,” the SSEB concluded that it “ha[d] no basis to question the reasonableness of the
total price offered by Entwistle.” Id.

2. The Entwistle Price Evaluation Report and Addendum to the Entwistle
Price Evaluation Report

On August 8, 2012 the SSEB prepared a Price Evaluation Report specific to
Entwistle, in which the SSEB evaluated Entwistle’s proposal “for reasonableness and
realism.” AR 1782-83 (Entwistle PER). On August 15, 2012 the SSEB prepared an
Addendum to the Price Evaluation Report, in which the SSEB “provide[d] additional
evaluation and analysis of Entwistle’s responses to the Government’s requests for
clarification[].” 12 AR 1832 (Entwistle PER Addendum); cf. supra Part I.C (discussing
11
Similarly, [* * *] did not include the cost of either the water tank or the frame in its
Bill of Material because it planned to “build[] and fabricat[e] the tank and frame.” See AR 1769-
70 (Initial PER).
12
As plaintiff correctly points out, see Pl.’s Mot. 17, although the Initial Price
Evaluation Report included the four requests for clarification and responses by The Entwistle
Company (Entwistle), see AR 1772-74 (Initial PER), the Source Selection Evaluation Board
(SSEB) did not document any evaluation or analysis of Entwistle’s responses until it prepared its
the government’s requests for clarification). The SSEB concluded in both reports that the
total evaluated price offered by Entwistle was both reasonable and realistic. See AR
1790 (Entwistle PER); AR 1833 (Entwistle PER Addendum).

The Entwistle Price Evaluation Report included a comparison of the items that
Entwistle listed in its Bill of Material--that is, items with an estimated cost of $500 or
more--with the historical prices of these items and prices culled from market research.
AR 1786 (Entwistle PER). Entwistle’s [* * *] was the water tank, which Entwistle
planned to purchase from its proposed subcontractor, [* * *], at a cost of $[* * *]. Id.
The historical price for the water tank, which was derived from previous procurements
with Mil-Mar, was $[* * *]. See id.; cf. supra note 6 (discussing the sole-source contracts
awarded to Mil-Mar for the production of Hippos). However, because Mil-Mar had
purchased the water tank as a framed unit and because Entwistle planned to purchase the
water tank and manufacture the frame, the SSEB considered impossible “an ‘apples to
apples’ comparison between [the historical price of] the [water] tank/frame and the
[water] tank that Entwistle is offering.” AR 1787 (Entwistle PER); cf. id. at 1785 (stating
that “Entwistle’s total proposed unit price for the HIPPO [* * *] is less than the historical
negotiated price for [Mil-Mar’s] tank/frame”).

Because Entwistle’s water “tank price was so much lower than [the historical
price],” and in an attempt to “mitigate[] some of the risk inherent with using a new
source,” the SSEB sought to verify the price of the water tank that Entwistle proposed to
purchase from [* * *]. Id. at 1786. Although the SSEB did find an [* * *] water tank
truck (priced at $[* * *]) on the price list of the General Services Administration (GSA)
online database system, id.; see also AR 1815-17 (GSA price list guide); AR 1818-31
(GSA price list for [* * *]), it could not find a “stand alone” [* * *] water tank, AR 1786
(Entwistle PER) (internal quotation marks omitted). The SSEB therefore “contacted
[* * *] and asked if it [sold] the water tank on a stand-alone basis and at what price.” Id.
[* * *] responded that the price for a stand-alone water tank “would be ‘around
$[* * *].’” Id. The SSEB found that “[t]his research pricing substantiates the validity of
the [price of the water] tank Entwistle proposed,” id., and concluded that Entwistle’s
“proposed price for the water tank certainly appear[ed] reasonable,” id. at 1787; see also
id. at 1786 (stating that “[t]he tank price is further supported by the [* * *] GSA price list
for the entire vehicle with tank and pumping system”).

The SSEB also observed that “Entwistle did not comply with Section L.6
instructions to offerors, in its entirety.” Id. at 1785. Specifically, Entwistle “did not
provide all of the requested information in Attachment []16 under the [Bill of Material].”
Id. For example, Entwistle failed to include the part numbers for the items listed in its

August 15, 2012 Addendum to the Price Evaluation Report, see AR 1832 (Addendum to the
Entwistle Price Evaluation Report).
Bill of Material. Id. at 1786; cf. Compl. ¶ 69 (listing the information that Entwistle failed
to include in its Bill of Material); infra Part III.C (discussing Entwistle’s failure to
include the cost of the frame in the Bill of Material). The SSEB concluded, however, that
“the data that was omitted was not significantly material to reject [Entwistle’s] proposal.”
AR 1785 (Entwistle PER); cf. AR 276 (RFP) (providing that an offeror’s proposal may
be rejected if “[t]he proposal fails to meaningfully respond to the instructions in Section
L of this solicitation” such as by “fail[ing] to provide any of the data and information
required in Section L”).

In the Addendum to the Price Evaluation Report, the SSEB examined Entwistle’s
responses to the government’s requests for clarification. AR 1832 (Entwistle PER
Addendum); cf. supra Part I.C (discussing the government’s requests for clarification).
Owing to certain errors in Entwistle’s Price Volume not at issue here, the SSEB found
that “Entwistle ha[d] understated [its] direct costs by a total of $[* * *]” and adjusted
Entwistle’s price accordingly. See AR 1833 (Entwistle PER Addendum). The SSEB
found this amount to be to be “negligible,” however, given that it was “only [* * *]% of
the total proposed price” and could likely “be ‘negotiated’ downward between
[Entwistle] and [* * *].” Id. at 1833-34. Notably, the SSEB did not adjust Entwistle’s
price as a result of the exchange between Entwistle and the government regarding
Entwistle’s estimated cost to manufacture the Hippo frame. Cf. id. at 1833 (noting that,
in response to the government’s second request for clarification, Entwistle stated that its
estimated material cost for the frame was “$[* * *] and the estimated labor for fabricating
the frame is [* * *] hours”).

3. The Final Price Evaluation Report

On August 23, 2012 the SSEB prepared a report titled “Final Price Evaluation
Report,” AR 1835 (Final PER) (capitalization omitted), the purpose of which was “to
determine if the offers [were] reasonable and realistic,” id. at 1837. The Final Price
Evaluation Report included much of the same information that was provided in the Initial
Price Evaluation Report. Compare id. at 1835-43 with AR 1765-74 (Initial PER). Both
reports, for example, indicated that Entwistle’s water tank price had been “verified via
telephone with the tank vendor.” See AR 1839 (Final PER); AR 1768 (Initial PER). The
Final Price Evaluation Report, however, added that Entwistle’s water tank price had also
been verified, pursuant to requests for clarification, “via vendor quotation.” AR 1839
(Final PER). As it did in the Initial Price Evaluation Report, see AR 1768 (Initial PER),
the SSEB concluded in the Final Price Evaluation Report that it “ha[d] no basis to
question the reasonableness of the total price offered by Entwistle,” AR 1839 (Final
PER).

E. Best Value Analysis and Contract Award
On September 28, 2012 the SSA prepared a thirty-one-page Source Selection
Decision Document (SSDD) in which he concluded that, because “the proposal from
[Entwistle] represents the best value to the Government,” award should be made to
Entwistle. AR 1878, 1908 (SSDD). In reaching this conclusion, the SSA reviewed and
adopted the ratings the SSEB assigned each offeror under the Production Capability and
Experience factors. See AR 1878-79; cf. supra Part I.B (discussing the ratings assigned
by the SSEB). The SSA also compared the proposals submitted by the offerors “utilizing
a ‘trade-off’ process, giving appropriate consideration to the evaluation criteria set forth
in the RFP and their relative importance.” AR 1878 (SSDD); see id. at 1880-1904
(comparing Entwistle’s proposal against each of the other offerors’ proposals). The court
addresses the SSA’s best value trade-off analysis in more detail in Part III.E below.

The SSA also stated that, because Entwistle’s price was “significantly lower” than
that of the next lowest offeror, the contracting officer had “employed cost analysis
techniques to determine whether it [was] reasonable to conclude that Entwistle [could]
perform the requirements of the contract based on its offered price.” Id. at 1906; cf. AR
276 (RFP) (providing that the government may reject a proposal that “contains any
unexplained significant inconsistency between the proposed effort and cost and/or price,
which implies the offeror . . . has an inherent misunderstanding of the scope of work,
or . . . has an inability to perform the resultant contract”). The cost analysis techniques
included “a comparison of cost elements, and a review of Entwistle’s labor hours and
material type(s) to determine risk of successful performance at the offered price.” AR
1906 (SSDD). The SSA reviewed the contracting officer’s “assessment of price
fair[ness] and reasonableness to assure that awarding the contract at Entwistle’s proposed
price [was] prudent,” id. at 1905, and concluded that Entwistle’s “total proposed price [of
$67,960,541] [did] not appear to be unreasonably low,” id. at 1908. The court addresses
the SSA’s cost analysis in more detail in Part III.D below.

F. Procedural History

Mil-Mar learned that it was not selected for award on September 28, 2012. AR
2439 (Government Accountability Office (GAO) Protest). Plaintiff filed a protest with
the GAO on October 9, 2012, see id. at 2435, and, on January 17, 2013, GAO denied
Mil-Mar’s protest, AR 2637-38 (GAO Decision). On February 20, 2013, Mil-Mar filed
its Complaint with this court. See generally Compl. (filed February 20, 2013).

II. Legal Standards

A. Jurisdiction

The Tucker Act, as amended by the Administrative Dispute Resolution Act of
1996, codified in relevant part at 28 U.S.C. § 1491(b)(1) (2006), affords the United States
Court of Federal Claims
jurisdiction to render judgment on an action by an interested party objecting
to a solicitation by a Federal agency for bids or proposals for a proposed
contract or to a proposed award or the award of a contract or any alleged
violation of statute or regulation in connection with a procurement or a
proposed procurement[,] . . . [regardless of] whether suit is instituted before
or after the contract is awarded.

28 U.S.C. § 1491(b)(1). A plaintiff therefore does not have standing to bring a protest
action in this court unless it is an “interested party.” See id.; [* * *] Containers, Inc. v.
United States, 103 Fed. Cl. 471, 479 (2012). Because “standing is a jurisdictional
requirement, a protestor’s failure to establish standing precludes a ruling on the merits.”
Sci. Applications Int’l Corp. v. United States (Sci. Applications), 102 Fed. Cl. 644, 650
(2012) (internal quotation marks omitted).

To show that it is an “interested party” within the context of § 1491(b)(1), a
plaintiff must “establish that it (1) is an actual or prospective bidder, and (2) possesses the
requisite direct economic interest.” Rex Serv. Corp. v. United States, 448 F.3d 1305,
1307 (Fed. Cir. 2006); see also Am. Fed’n of Gov’t Emps., AFL-CIO v. United States,
258 F.3d 1294, 1302 (Fed. Cir. 2001) (defining an “interested party” as an “actual or
prospective bidder[] or offeror[] whose direct economic interest would be affected by the
award of the contract or by failure to award the contract”). To establish that a plaintiff’s
“direct economic interest” is affected in the post-award bid protest context, a plaintiff
“must show it would have been ‘a qualified bidder,’ i.e., that it had a ‘substantial chance’
of being awarded the contract.” See Microdyne Outsourcing, Inc. v. United States, 72
Fed. Cl. 230, 232 (2006) (quoting Myers Investigative & Sec. Servs., Inc. v. United
States, 275 F.3d 1366, 1370-71 (Fed. Cir. 2002)).

B. Motion for Judgment on the Administrative Record

Motions for judgment on the administrative record are governed by Rule 52.1(c)
of the Rules of the United States Court of Federal Claims (RCFC). See RCFC 52.1(c). A
motion for judgment upon the administrative record is distinguishable from a motion for
summary judgment. See Bannum, Inc. v. United States, 404 F.3d 1346, 1355 (Fed. Cir.
2005); RCFC 52.1 rules committee notes (2006) (“Summary judgment standards are not
pertinent to judicial review upon an administrative record.”). When evaluating cross-
motions for judgment on the administrative record, the court considers “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 (DMS), 90 Fed. Cl.
653, 661 (2010) (citing Bannum, Inc., 404 F.3d at 1356-57). “The existence of a
question of fact thus neither precludes the granting of a motion for judgment on the
administrative record nor requires this court to conduct a full blown evidentiary
proceeding.” CRAssocs., Inc. v. United States, 102 Fed. Cl. 698, 710 (2011) (citing, inter
alia, Bannum, Inc., 404 F.3d at 1356), aff’d, 475 F. App’x 341 (Fed. Cir. 2012).

“The standards and criteria governing the court’s review of agency decisions vary
depending upon the specific law to be applied in particular cases.” RCFC 52.1 rules
committee notes (2006). Here, the standards of review and burdens of proof and
persuasion are set by the Administrative Procedure Act (APA), 5 U.S.C. § 706 (2006), as
interpreted and applied in binding precedent, see 28 U.S.C. § 1491(b)(4); NVT Techs.,
Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004); see also infra Part II.C
(describing APA standard).

C. Standard of Review

“A bid protest proceeds in two steps.” Bannum, Inc., 404 F.3d at 1351. The first
step is to demonstrate error, that is, to show that the agency acted in an arbitrary and
capricious manner, without a rational basis or contrary to law. See id. The second step is
to determine whether the error was prejudicial. Id.

1. The Plaintiff Must Establish Error

Under the APA, an agency’s decision shall be set aside if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A); see also Galen Med. Assocs., Inc. v. United States (Galen), 369 F.3d 1324,
1329 (Fed. Cir. 2004) (applying the APA standard). Under the arbitrary or capricious
standard of review, an agency’s decision must be sustained if it has a rational basis. See
Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co. (State
Farm), 463 U.S. 29, 43 (1983). “The arbitrary and capricious standard applicable here is
highly deferential. This standard requires a reviewing court to sustain an agency action
evincing rational reasoning and consideration of relevant factors.” Advanced Data
Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000) (citing Bowman
Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974)). In particular, the
reviewing court may not substitute its judgment for that of the agency. State Farm, 463
U.S. at 43. The question for the court is not whether the agency is correct or whether the
court would have reached the same conclusion as the agency, but whether there was a
reasonable basis for the agency’s actions. See Honeywell, Inc. v. United States, 870 F.2d
644, 648 (Fed. Cir. 1989) (“If the court finds a reasonable basis for the agency’s action,
the court should stay its hand even though it might, as an original proposition, have
reached a different conclusion as to the proper administration and application of the
procurement regulations.” (internal quotation marks omitted)).

In the procurement context, “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.” Impresa Construzioni Geom. Domenico
Garufi v. United States (Impresa), 238 F.3d 1324, 1332 (Fed. Cir. 2001). “[T]his
standard recognizes the possibility of a zone of acceptable results in a particular case and
requires only that the final decision reached by an agency be the result of a process which
‘consider[s] the relevant factors’ and is ‘within the bounds of reasoned decisionmaking.’”
CRAssocs. Inc., 102 Fed. Cl. at 710 (second alteration in original) (quoting Balt. Gas &
Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105 (1983)). When a
plaintiff challenges a procurement based upon a violation of statutes or regulations, “the
disappointed bidder must show ‘a clear and prejudicial violation of applicable statutes or
regulations.’” Impresa, 238 F.3d at 1333 (quoting Kentron Haw., Ltd. v. Warner, 480
F.2d 1166, 1169 (D.C. Cir. 1973)).

When a plaintiff challenges a procurement based upon a claim that a procurement
official’s decision is irrational, the court must determine whether the procuring agency
“provided a coherent and reasonable explanation of its exercise of discretion.” Id. at
1332-33 (internal quotation marks omitted). This entails an examination of whether the
procuring agency “‘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
reached a decision that was “‘so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.’” Ala. Aircraft Indus., Inc.-Birmingham v.
United States (Ala. Aircraft), 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting State Farm,
463 U.S. at 43). The scope of review under this standard is narrow and the court “should
intervene only when it is clearly determined that the agency’s determinations were
irrational or unreasonable.” Baird Corp. v. United States, 1 Cl. Ct. 662, 664 (1983).

“The wide discretion afforded contracting officers extends to a broad range of
procurement functions, including the determination of what constitutes an advantage over
other proposals.” One Largo Metro, LLC v. United States (One Largo), 109 Fed. Cl. 39,
74 (2013). The discretion afforded to contracting officers is greater in negotiated
procurements, as compared to sealed bid procurements, and the protester has an even
“heavier burden of proof.” L-3 Commc’ns EOTech, Inc. v. United States (L-3
Commc’ns I), 83 Fed. Cl. 643, 650 (2008), appeal dismissed by stipulation, 356 F. App’x
390 (Fed. Cir. 2009); cf. AR 71 (RFP) (indicating that the Solicitation used “Negotiated”
as opposed to “Sealed” bidding). A plaintiff’s burden is further “elevated where the
solicitation contemplates award on a best value basis.” Brooks Range Contract Servs.,
Inc. v. United States (Brooks Range), 101 Fed. Cl. 699, 707 (2011) (internal quotation
marks omitted); cf. AR 276 (RFP) (indicating that the Solicitation contemplated award on
a best value basis). “Thus, the protestor’s burden is especially heavy in negotiated, best
value procurements,” L-3 Commc’ns I, 83 Fed. Cl. at 650, where a contracting officer is
afforded a substantial degree of deference, and, accordingly, “[a]n agency’s contract
award is . . . least vulnerable to challenge when based upon a best value determination,”
PlanetSpace Inc. v. United States, 96 Fed. Cl. 119, 125 (2010) (citing Galen, 369 F.3d at
1330).
In determining whether an agency acted rationally, the court is also particularly
deferential to the agency’s technical evaluation. L-3 Commc’ns EOTech, Inc. v. United
States, 87 Fed. Cl. 656, 664 (2009); see E.W. Bliss Co. v. United States, 77 F.3d 445, 449
(Fed. Cir. 1996) (stating that “such matters as technical ratings” involve “the minutiae of
the procurement process . . . that a court will not second guess”). “This is because 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.” One Largo, 109 Fed. Cl. at 74
(internal quotation marks and alteration omitted).

2. The Plaintiff Must Establish Prejudice

In order to prevail in a bid protest, the plaintiff must demonstrate both that an error
occurred and that such error was prejudicial. Data Gen. Corp. v. Johnson, 78 F.3d 1556,
1562 (Fed. Cir. 1996); see Alfa Laval Separation, Inc. v. United States (Alfa Laval), 175
F.3d 1365, 1367 (Fed. Cir. 1999) (“To prevail in a bid protest, a protester must show a
significant, prejudicial error in the procurement process.”). If the court finds that there is
no error, there is no prejudice and the government’s decisions must be left undisturbed.
See Alfa Laval, 175 F.3d at 1367 (stating that to establish prejudice and prevail, a
protester must show that it had a substantial chance of receiving the award “but for that
error”). Furthermore, “non-prejudicial errors in a bid process do not automatically
invalidate a procurement.” Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1380
(Fed. Cir. 2009). “In the context of a post-award bid protest, the plaintiff must
demonstrate substantial prejudice by showing that there was a substantial chance it would
have been awarded the contract but for the agency’s error.” Brooks Range, 101 Fed. Cl.
at 707 (internal quotation marks omitted); see Bannum, Inc., 404 F.3d at 1353 (stating
that “[t]o establish ‘significant prejudice’ [the plaintiff] must show that there was a
‘substantial chance’ it would have received the contract award but for the [alleged]
errors” (quoting Info. Tech. & Applications Corp. v. United States (ITAC), 316 F.3d
1312, 1319 (Fed. Cir. 2003) and Alfa Laval, 175 F.3d at 1367)).

III. Discussion

A. Plaintiff Has Standing to Bring This Protest

Although the parties do not challenge plaintiff’s standing to bring this protest,
because “standing is a jurisdictional requirement,” Sci. Applications, 102 Fed. Cl. at 650,
the court addresses this issue sua sponte, John R. Sand & Gravel Co. v. United States,
457 F.3d 1345, 1353 (Fed. Cir. 2006) (“Under federal rules any court at any stage in the
proceedings may address jurisdictional issues. Thus, even if the issue is not properly
raised, this court sua sponte may consider all bases for the trial court’s jurisdiction.”
(internal quotation marks and alteration omitted)), aff’d, 552 U.S. 130 (2008). 13 For the
following reasons, the court finds that Mil-Mar is an interested party--that is, that Mil-
Mar is an actual bidder and possesses a direct economic interest in the award of the
Solicitation--and therefore has standing to bring this protest. Cf. Rex Serv. Corp., 448
F.3d at 1307 (describing requirements to be an “interested party”).

Mil-Mar is an actual bidder that has submitted a proposal in response to the
Solicitation, see supra Part I.B, and therefore meets the first prong of the interested party
test, cf. Orion Tech., Inc. v. United States, 102 Fed. Cl. 218, 226 (2011) (finding that the
first prong was met when there was “no dispute that [the] plaintiff [was] an actual
bidder”), aff’d, 704 F.3d 1344 (Fed. Cir. 2013); Chenega Mgmt., LLC. v. United States
(Chenega), 96 Fed. Cl. 556, 571 (2010) (finding that the plaintiff was an actual bidder
because it had submitted a proposal in response to the solicitation). With respect to the
second prong of this test, Mil-Mar has a direct economic interest in the award because
Mil-Mar is the incumbent contractor and, in fact, the only contractor ever to have
produced Hippos, AR 1767 (Initial PER), and received the highest ratings in both the
Production Capability and Experience factors, AR 1879 (SSDD). If the court were to
find in plaintiff’s favor and the Agency were obligated to reopen the procurement, see
Compl. ¶ 139 (requesting, inter alia, that the court order the Agency “to open discussions,
request a final proposal revision from all offerors, [and] re-evaluate proposals in
accordance with the Solicitation”); Pl.’s Mot. 37-38 (requesting, inter alia, that the court
order the Agency to “re-compete the contract”), the court finds that Mil-Mar would have
a substantial chance of receiving an award, cf. Impresa, 238 F.3d at 1334 (finding that the
plaintiff had standing where, assuming that its protest was successful, the plaintiff had a
substantial chance of being awarded the government’s re-solicitation of the contract);

13
The court addresses the issue of prejudice twice in bid protest disputes. DynCorp Int’l
LLC v. United States, 76 Fed. Cl. 528, 536 n.4 (2007). The court first “weigh[s] prejudice as it
pertains to standing, and then more thoroughly weigh[s] prejudice to determine whether a
plaintiff shall be afforded relief.” Id. “This first showing of prejudice to the protestor, in order
to prove standing, must occur before reaching the merits of the bid protest review.” Id. (citing
Info. Tech. & Applications Corp. v. United States (ITAC), 316 F.3d 1312, 1319 (Fed. Cir. 2003)
(stating that “because the question of prejudice goes directly to the question of standing, the
prejudice issue must be reached before addressing the merits”)). “[T]he prejudice requirement
for standing is less stringent than that required for success on the merits.” Allied Tech. Grp., Inc.
v. United States, 94 Fed. Cl. 16, 37 (2010), aff’d, 649 F.3d 1320 (Fed. Cir. 2011); see Global
Computer Enters., Inc. v. United States, 88 Fed. Cl. 350, 401 (2009) (“A prejudice determination
for the purpose of evaluating standing is a limited review that seeks minimum requisite evidence
necessary for plaintiff to demonstrate prejudice and therefore standing.” (internal quotation
marks omitted)), modified, 88 Fed. Cl. 466 (2009). These two prejudice requirements have been
viewed as “incongruent, although slightly overlapping, standards,” Dyonyx, L.P. v. United
States, 83 Fed. Cl. 460, 466 n.2 (2008), and the application of the two standards “may yield
different results,” Sys. Application & Techs., Inc. v. United States, 100 Fed. Cl. 687, 707 n.15
(2011), aff’d, 691 F.3d 1374 (Fed. Cir. 2012).
Esterhill Boat Serv. Corp. v. United States, 91 Fed. Cl. 483, 486 (2010) (“If the
allegations are correct and the Government were obligated to rebid the contracts, [the]
plaintiff could win with resubmitted proposals.”), appeal dismissed, 452 F. App’x 947
(Fed. Cir. 2010). The court is satisfied that Mil-Mar is an interested party within the
meaning of 28 U.S.C. § 1491(b)(1) and therefore has standing to bring this bid protest
action.

B. The Agency Treated the Offerors Equally and Rationally in
Its Evaluation of Experience

Plaintiff argues that the Agency’s evaluation of the offerors’ experience lacked a
rational basis and violated FAR 1.602-2, see Pl.’s Mot. 6, 15, which requires contracting
offers to “[e]nsure that contractors receive impartial, fair, and equitable treatment,” FAR
1.602-2 (2012). Specifically, plaintiff contends the Agency failed to treat offerors fairly
and impartially by “consistently and favorably consider[ing] experience submitted by
Entwistle that did not include information required by Section L.5.4[] of the RFP, but . . .
not extend[ing] the same treatment to the other offerors.” Pl.’s Mot. 6; see also Compl. ¶
128 (“[T]he Agency repeatedly treated Entwistle more favorably than other offerors and
considered its experience, despite the fact it was missing information required by the
RFP, but refused to consider . . . missing information required by the RFP when it was
offered by another offeror.”). Defendant counters that “[t]he agency’s differing
evaluations of offerors’ experience were rationally based on differences in the offerors’
proposals.” Def.’s Mot. 20; see also id. at 18 (“[T]he agency’s detailed assessments of
offerors’ experience were carefully tailored to respond to the varying content of each
proposal; differences in evaluations resulted from differences among the proposals.”).
Defendant also argues that, even if plaintiff could establish that the Agency treated the
offerors unequally and irrationally, plaintiff could not establish prejudice because none of
plaintiff’s unequal treatment claims actually involves Mil-Mar. Id. at 29.

As discussed above in Part I.A.1, Section L.5 of the Solicitation addressed the
Experience factor, under which offerors were to identify up to five “recent and relevant”
contracts that had been performed in the past three years that were “comparable in scope
to the requirements of this [Solicitation].” AR 264-65 (RFP). Section L.5.4 provided
that, for each of the contracts identified, proposals were to include the following
information: the contract numbers and types; contact information for the government or
commercial contracting authority, the technical representative of the government or
commercial contracting authority and the administrative and procuring contracting
officers; copies of the SOW provisions in each contract that demonstrated relevant
experience with the five SOW requirements (comparable items, technical manuals,
delivery, low temperature requirement and welding); and “[a] discussion of specific
similarities between these contract [SOWs] and the [SOW] herein.” Id. at 265. Section
L.5.4 further provided that “[f]ailure to provide the information requested under [Section]
L.5.4 . . . so that the Government can verify claimed experience may result in a
determination that your proposal is unacceptable and the elimination of your proposal
from consideration for award.” Id.

In this section, the court first provides background information regarding the
Agency’s evaluation of the offerors’ experience and then addresses the parties’
arguments. For the reasons stated below, the court finds that plaintiff has failed to show
that the Agency violated FAR 1.602-2 or otherwise acted without a rational basis, and
that, even if plaintiff could make this showing, plaintiff has failed to establish any
resulting prejudice.

1. The Experience of Entwistle, [* * *], [* * *] and [* * *]

Plaintiff claims that the Agency treated Entwistle more favorably than it treated
[* * *], [* * *] and [* * *], see Pl.’s Mot. 10-13, all offerors that, according to plaintiff,
“claimed experience in a manner similar to Entwistle,” see id. at 7. The court now
provides a brief summary of the information submitted by each of these offerors to
describe its experience.

The Experience Volume submitted by Entwistle consisted of approximately
twenty-nine pages and included descriptions of end products, excerpts from purchase
descriptions, and SOW provisions for one contract. 14 See AR 1699-1727 (Entwistle’s
Revised Experience Volume); see also AR 1757-59 (Entwistle’s Final Evaluation Report)
(summarizing the contracts submitted by Entwistle). The first contract Entwistle
identified was a contract for the production of Fuels Operational Readiness Capability
Equipment (FORCE) Systems 15 (FORCE contract), and, as supporting material,
Entwistle included a description of the program requirements, a list of specifications
common to both the FORCE contract and the Solicitation and several pages of excerpts
from the FORCE contract’s SOW and associated purchase descriptions. See AR 1702-12
(Entwistle’s Revised Experience Volume). The second contract Entwistle identified was

14
The record includes two Experience Volumes submitted by Entwistle, the original
Experience Volume dated May 21, 2012, see AR 1628-55 (Entwistle’s Original Experience
Volume), and a revised Experience Volume dated June 8, 2012, AR 1699-1727 (Entwistle’s
Revised Experience Volume). As discussed above, see supra Part I.B, Entwistle’s Revised
Experience Volume was submitted in response to a June 6, 2012 amendment to the Solicitation,
which “clarif[ied] certain matters related to projected delivery requirements,” AR 1878 (Source
Selection Decision Document (SSDD).
15
A Fuels Operational Readiness Capability Equipment (FORCE) System is “essentially
a Type 3 hydrant fuel delivery system” and “is designed to provide up to 2700 Gallons per
Minute . . . of fuel to multiple aircraft.” AR 1757 (Entwistle’s Final Evaluation Report).
a contract for the production of Tank Cleaning Vacuum Systems 16 (Vacuum contract),
and, as supporting material, Entwistle provided a summary of the principal components
of the end product and a list of similarities between the Solicitation and the Vacuum
contract--using excerpts from the associated purchase descriptions. See id. at 1713-18.
The third contract Entwistle identified was a contract for the production of Shipboard
Fire Fighting Vehicles 17 (Fire Fighting Vehicle contract) and, as supporting material,
Entwistle provided a description of the end product and identified three military standards
required by the Fire Fighting Vehicle contract. See id. at 1719-23. The fourth and fifth
contracts Entwistle identified were contracts of [* * *], “Entwistle’s proposed sub-
contractor for the water tank for the HIPPO system,” for the production of Potable Water
Tank Trucks and, as supporting material, Entwistle provided a description of the end
product. 18 See id. at 1724-27.

The Experience Volume submitted by [* * *] consisted of approximately twenty-
seven pages and included descriptions of [* * *]’s responsibilities and performance under
each contract and also included SOW provisions for two of its contracts. See AR 3473-
99 ([* * *]’s Experience Volume); see also AR 4302-03 ([* * *]’s Final Evaluation
Report) (summarizing the contracts submitted by [* * *]). For [* * *]’s first contract, a
contract for the production of containerized kitchens, 19 [* * *] included a one-page
discussion that primarily focused on [* * *]’s quality of performance and ability to foster
working relationships with customers, engineers and contracting officers. See AR 3481-
82 ([* * *]’s Experience Volume). For [* * *]’s second contract, a contract for the
production of Reverse Osmosis Water Purification Units (ROWPU contract), [* * *]
included an excerpt from the ROWPU contract’s SOW and a brief description of [* * *]’s
responsibilities and delivery requirements under the ROWPU contract. See id. at 3482-

16
“The tank cleaning vacuum system is a rugged piece of equipment” that “remove[s] all
types of oily water and sludge from bilges, lubricating oil tanks and fuel tanks during cleaning
operations, while maintaining a constant suction on bilges.” AR 1714 (Entwistle’s Revised
Experience Volume).
17
“The Shipboard Fire Fighting Vehicle is a self-propelled, self[-]contained all weather
fire fighting vehicle. It is used on aircraft carriers and amphibious assault ships to extinguish a
fire or limit the severity of the fire until other systems can be activated.” Id. at 1720.
18
Entwistle also included an excerpt from a military performance specification for one
of the [* * *] contracts, see id. at 1726, but the SSEB found the application of this specification
to the Solicitation questionable and, “[a]s a result, [Entwistle] was not accorded credit for the
specification excerpts, and [was] assessed as having not provided verification of effort for this
contract,” AR 1760 (Entwistle’s Final Evaluation Report).
19
Containerized kitchens are “complex modified [International Organization for
Standardization (ISO)] container system[s].” AR 3481 ([* * *]’s Experience Volume).
83. For [* * *]’s third contract, a contract for the production of shower facilities and
water heaters, [* * *] included a brief description of the product and an excerpt from a
“Contractor Performance Assessment Report.” See id. at 3484-85. For [* * *]’s fourth
contract, a contract for the production of shower facilities, [* * *] included a one-
paragraph description of [* * *]’s responsibilities and performance under the contract.
See id. at 3485. Finally, for [* * *]’s fifth contract, a contract for the production of
Expeditionary Tricon Systems (Tricon contract), 20 [* * *] included approximately twelve
pages from the Tricon contract’s SOW, id. at 3487-99, a brief description of the product
and a few paragraphs describing [* * *]’s responsibilities and performance under the
Tricon contract. See id. at 3486-87.

The Experience Volume submitted by [* * *] consisted of approximately eight
pages and focused primarily on describing the end product of each contract. See AR
4241-48 ([* * *]’s Experience Volume); see also AR 4320-22 ([* * *]’s Final Evaluation
Report) (summarizing the contracts submitted by [* * *]). 21 For [* * *]’s first contract, a
contract for the production C-5 Isochronal Maintenance Stands, 22 [* * *] provided a brief
description of the end product and a brief reference to the welding requirements. See AR
4242-43 ([* * *]’s Experience Volume). For [* * *]’s second and third contracts,
contracts for the production of 2,000 gallon and 4,000 gallon fuel tanks, [* * *] provided
a brief description of the fuel tanks to be produced under each contract and noted that, for
both contracts, “[t]he tanks meet ISO requirements for shipping containers.” See id. at
4244, 4246. For [* * *]’s fourth contract, a contract for the production of Multi-Class
DMD Complexes, 23 [* * *] provided a half-page description of the end product and
[* * *]’s responsibilities under the contract and also noted that “certified welders were
used to perform the . . . stainless steel welding.” See id. at 4245.

20
Expeditionary Tricon Systems consist of shipping containers that house a shower,
latrine, laundry and a kitchen. Id. at 3486.
21
The court describes only the four contracts that the SSEB considered in its evaluation
of [* * *]’s experience. See AR 4320-22 ([* * *]’s Final Evaluation Report). The fifth
“contract” that [* * *] identified actually consisted of several contracts, see AR 4247 ([* * *]’s
Experience Volume) (listing eight contract numbers), and the SSEB refused to give [* * *] credit
for this experience “because the multiple contracts cited result[ed] in more than five contracts
being identified in the proposal, exceeding the number allowed per Section L.5.1 of the [RFP],”
AR 4322 ([* * *]’s Final Evaluation Report).
22
“C-5 Isochronal Maintenance Stands supply personnel access to the wings, fuselage,
and engines of the C-5 aircraft.” AR 4242 ([* * *]’s Experience Volume).
23
Multi-Class DMD Complexes “are used in support of the [United States] Navy nuclear
submarine overhaul program.” Id. at 4245 (capitalization omitted).
The Experience Volume submitted by [* * *] consisted of approximately
seventeen pages and is considerably less detailed than those of the other offerors. See
AR 3698-3714 ([* * *]’s Experience Volume); see also AR 4339-40 ([* * *]’s Final
Evaluation Report) (summarizing the contracts submitted by [* * *]). 24 The first contract
identified by [* * *] was a contract for the production of trailers and, as support, [* * *]
included one sentence that described the welding requirements under the contract and a
copy of an ISO certificate awarded to [* * *] for the “[d]esign and manufacture of
medium and heavy duty trailers.” See AR 3702-04 ([* * *]’s Experience Volume). The
second contract identified by [* * *] was a contract awarded to a proposed subcontractor
for the production of diesel fuel trucks, and, as support, [* * *] included a few sentences
that described the quality of the subcontractor’s performance under the contract. See id.
at 3709-10. The third contract [* * *] identified was a contract awarded to a proposed
subcontractor for the production of technical manuals; as support for this contract, [* * *]
included approximately three pages of information about the subcontractor’s experience
developing technical manuals. See id. at 3711-14.

2. The Agency’s Evaluation of the Experience of Entwistle, [* * *], [* * *]
and [* * *]

A summary of the SSEB’s assessment of the risk associated with the prior
experience of Entwistle, [* * *], [* * *], and [* * *] is below:

Overall Comparable Technical Low Temp
Offeror Delivery Welding
Experience Items Manuals Requirement
Entwistle Low Very low Moderate Moderate Low Moderate
24
The court describes only the three contracts that the SSEB considered in its evaluation
of [* * *]’s experience. See AR 4341 ([* * *]’s Final Evaluation Report). The two “contracts”
that the SSEB refused to consider, see id., included a contract awarded to proposed subcontractor
Brenner Tank, LLC (Brenner Tank) for the production of stainless steel water tanks (Brenner
Tank contract) and purchase orders awarded to Brenner Tank for the production of stainless steel
water trailers (Brenner Tank purchase orders), see AR 3705-07 ([* * *]’s Experience Volume).
The SSEB did not credit [* * *] with experience under the Brenner Tank contract “because the
resultant contract number under which this asserted effort was performed is unknown,” AR 4341
([* * *]’s Final Evaluation Report), and therefore could not be verified, id. at 4346; see AR 1903
(SSDD) (stating that the Brenner Tank contract “was not taken into consideration based on the
inability of the evaluators to verify that the solicitation resulted in a contract being awarded to”
the prime contractor identified by [* * *]). The SSEB also refused to credit [* * *] with
experience under the Brenner Tank purchase orders “because the multiple purchase orders
referenced would [have] result[ed] in more than five contracts being identified in the proposal,
exceeding the number allowed per Section L.5.1 of the [RFP].” AR 4341 ([* * *]’s Final
Evaluation Report); see AR 1903 (SSDD) (stating that, because [* * *] did not provide any
supporting information to verify the Brenner Tank purchase orders, “it was impossible for the
evaluators . . . to identify the specific experience related to any one of the cited purchase orders
so that they could be evaluated without violating the five-contract limit”).
[* * *] Moderate Moderate Low risk Moderate High High
[* * *] High Moderate High High High High
[* * *] High High High Moderate High High

See AR 1763-64 (Entwistle’s Final Evaluation Report); AR 4307 ([* * *]’s Final
Evaluation Report); AR 4326-27 ([* * *]’s Final Evaluation Report); AR 4345 ([* * *]’s
Final Evaluation Report); cf. supra note 8 (explaining the Agency’s adjectival ratings of
the Experience factor). As noted above in Part I.E, the SSA adopted the ratings assigned
by the SSEB. See supra Part I.E.

In its evaluation of Entwistle’s Experience Volume, the SSEB identified one
strength and three weaknesses associated with Entwistle’s past experience. AR 1764
(Entwistle’s Final Evaluation Report). The SSEB considered as a strength Entwistle’s
“experience supplying systems that are collectively very comparable to the Hippo,
involving essentially the same scope and magnitude of effort and level of complexity as
required by this solicitation.” Id.; see also AR 1883 (SSDD) (agreeing with the SSEB’s
“very low risk assessment” for Entwistle “because experience with the major elements of
a HIPPO system is a larger risk mitigator than the experience with integration of the
elements into a complete system” and stating that “[t]he complexity of the HIPPO lies in
the major elements”). 25 As a weakness, the SSEB found that although [* * *] had

25
Plaintiff argues that the Agency’s determination that Entwistle has experience
manufacturing products that “collectively involve the major elements of sanitary liquid handling
and storage systems . . . is arbitrary and capricious.” Pl.’s Mot. 13 (internal quotation marks
omitted). As support, plaintiff claims that “Entwistle had no welding experience, offered no
experience making the ISO frame and relied on” its proposed subcontractor, [* * *], “with 1
month of production quantities of 30 items to establish its delivery experience,” while “Entwistle
itself had no comparable delivery experience.” Id. at 13-14.

As an initial matter, the court agrees with the United States (the government or
defendant) that plaintiff’s arguments are “inaccurate and unsupported.” See Def.’s Mot. 31.
First, the record does not support plaintiff’s contention that “Entwistle had no welding
experience.” See infra note 26 (discussing Entwistle’s welding experience); cf. Pl.’s Mot. 13.
Second, with respect to the [* * *] contract to which plaintiff refers, the SSEB determined that
[* * *] had six months of experience delivering twenty to thirty products per month, see AR
1761 (Entwistle’s Final Evaluation Report), not one month of delivery experience as plaintiff
contends, cf. Pl.’s Mot. 14. Moreover, as defendant correctly notes, even if [* * *] did have only
one month of experience delivering thirty items, plaintiff “has failed to explain why it is per se
unreasonable for the agency to consider that experience relevant.” See Def.’s Mot. 31; cf. AR 72
(RFP) (indicating that the offeror selected for award would be expected to manufacture and
deliver up to an estimated thirty-five Hippos a month); AR 1883 (SSDD) (same). Finally, the
Solicitation did not require offerors to submit information that suggested they had experience
manufacturing ISO frames, see AR 264-65 (RFP) (listing the information that offerors were to
submit in support of their recent and relevant experience), so the fact that the Agency did not
penalize Entwistle for not providing evidence of this experience is not unreasonable.
experience delivering “sanitary liquid handling and storage system[s] at a rate very close
to that required by the solicitation, the end item produced under the contract is . . . only
somewhat comparable in scope to the Hippo.” AR 1764 (Entwistle’s Final Evaluation
Report). The SSEB also identified as weaknesses Entwistle’s lack of experience in
developing technical manuals of the type required by the Solicitation and in welding
stainless steel in accordance with the standards required by the Solicitation. Id.

The SSEB identified zero strengths and four weaknesses associated with [* * *]’s
past experience. AR 4308 ([* * *]’s Final Evaluation Report). The SSEB found that
[* * *]’s “[c]ited experience references comparable items that involve only some of the
scope and magnitude of effort and complexities required by this solicitation.” Id. The
SSEB also found that [* * *] failed to demonstrate experience delivering products “with a
complexity comparable to the Hippo at the rate required by the solicitation.” Id. The
SSEB further found that [* * *] lacked experience in manufacturing products that could
meet the low temperature requirement and in welding stainless steel in accordance with
the standards required by the Solicitation. Id.

The SSEB identified zero strengths and several weaknesses associated with the
past experience of both [* * *] and [* * *]. See AR 4327 ([* * *]’s Final Evaluation
Report); AR 4346 ([* * *]’s Final Evaluation Report). The SSEB assigned [* * *] and
[* * *] five weaknesses each for failing to provide “verifiable experience” with respect to
any of the Solicitation’s five SOW requirements. See AR 4327 ([* * *]’s Final

Moreover, the court finds that the Agency acted well within its discretion when it
determined that Entwistle “has experience supplying systems that are collectively very
comparable to the Hippo,” see AR 1764 (Entwistle’s Final Evaluation Report), and that plaintiff
has failed to meet the heavy burden of proof necessary to show that this determination lacked a
rational basis, cf. L-3 Commc’ns EOTech, Inc. v. United States, 83 Fed. Cl. 643, 650 (2008)
(“[T]he protestor’s burden [of proof] is especially heavy in negotiated, best value
procurements.”), appeal dismissed by stipulation, 356 F. App’x 390 (Fed. Cir. 2009); Banknote
Corp. of Am. v. United States, 56 Fed. Cl. 377, 384 (2003) (determining that “naked claims” of
disagreement with evaluations, “no matter how vigorous, fall far short of meeting the heavy
burden of demonstrating that the findings in question were the product of an irrational process
and hence were arbitrary and capricious”), aff’d, 365 F.3d 1345 (Fed. Cir. 2004). The court
defers to the Agency’s technical determination that--despite the fact that Entwistle lacked
“experience with integration of the [Hippo] elements into a complete system”--one of the
strengths of Entwistle’s proposal was its collective “experience with the major elements of a
HIPPO system.” See AR 1883 (SSDD); cf. One Largo Metro, LLC v. United States, 109 Fed.
Cl. 39, 74 (2013) (“[T]he evaluation of proposals for their technical excellence or quality is a
process that often requires the special expertise of procurement officials, and thus reviewing
courts give the greatest deference possible to these determinations.” (internal quotation marks
omitted)). Absent a finding that “the agency’s determinations were irrational or unreasonable,”
the court will “not substitute its judgment . . . for that of the agency.” Baird Corp. v. United
States, 1 Cl. Ct. 662, 664 (1983).
Evaluation Report); AR 4346 ([* * *]’s Final Evaluation Report). The SSEB assigned an
additional weakness to [* * *] for failing to provide “actual contract SOWs . . . to
describe previous experience” and failing to discuss the similarities between its five most
recent and relevant contracts and the “current solicitation.” AR 4327 ([* * *]’s Final
Evaluation Report).

3. The Agency Treated Offerors Equally and Rationally in Its Evaluation of
Experience

Plaintiff argues that the Agency violated FAR 1.602-2 and “[a]bused its discretion
by treating the offerors unequally” in its evaluation of experience. See Pl.’s Resp. 8; Pl.’s
Mot. 6 (arguing that “[t]he Agency’s evaluation of the offerors’ proposals violated FAR
1.602-1”), 15 (similar); cf. FAR 1.602-2 (providing that contracting officers must
“[e]nsure that contractors receive impartial, fair, and equitable treatment”). According to
plaintiff, “the Agency was unable to verify whether Entwistle’s claimed experience was
actually relevant to the Hippo RFP,” given the limited amount of information provided by
Entwistle, Pl.’s Mot. 8, and that, unlike its assessment of other offerors, the Agency did
not consider Entwistle’s failure to verify its experience a weakness, id. at 9. Plaintiff
contends that the Agency did not extend the same type of treatment to the other offerors
“who claimed experience in a manner similar to Entwistle,” id. at 7; see id. at 14
(claiming that other offerors were “assigned negative risk ratings or a weakness when
their proposals lacked verifiable information”), and that, “[i]nstead, the Agency
consistently disregarded the RFP’s requirements when it evaluated Entwistle’s proposal,
which resulted in Entwistle receiving artificially inflated ratings and ultimately being
included in the best value trade-off,” id. at 9.

Defendant responds that “the agency had applied precisely the same standard--
whether each offeror had supplied sufficient information to permit verification of claimed
experience--to each proposal, and reached different ratings for different offerors only as a
result of significant differences between proposals.” Def.’s Reply 2 (internal quotation
marks and alteration omitted); see Def.’s Mot. 18 (arguing that any “differences in
evaluations resulted from differences among the proposals”). According to defendant,
“because ascertaining the nature of an offeror’s experience--rather than policing strict
compliance with every single instruction in the solicitation--was the agency’s goal, the
agency did not automatically penalize an offeror simply for failing to submit a [SOW].”
Def.’s Mot. 23. Defendant claims that the Agency “gave offerors credit for relevant
experience that was described with reasonable specificity” regardless of whether it came
“in the form of a [SOW] excerpt.” Id.; see id. at 21 (stating that “the agency did not
penalize any offeror for failing to submit a [SOW] from a given contract so long as the
offeror submitted sufficient other information to make clear the nature of the work
involved”); accord Intervenor’s Mot. 20 (stating that “the Agency did not eliminate any
of the [Experience Volumes] from consideration for award because it failed to include
copies of [SOWs], but, rather, the agency evaluated each one in light of and utilizing the
information provided”).

“[I]t is beyond peradventure that a contracting agency must treat all offerors
equally, evaluating proposals evenhandedly against common requirements and evaluation
criteria.” Banknote Corp. of Am. v. United States, 56 Fed. Cl. 377, 383 (2003), aff’d,
365 F.3d 1345 (Fed. Cir. 2004); cf. Chenega, 96 Fed. Cl. at 585 (“This court has held that
unequal treatment claims are the quintessential example of conduct which lacks a rational
basis.” (internal quotation marks and emphasis omitted)). “Equal treatment, however,
does not require that all proposals be treated the same.” Chenega, 96 Fed. Cl. at
585 (citing FAR 1.102-2(c)(3) (“All contractors and prospective contractors shall be
treated fairly and impartially but need not be treated the same.”)).

Plaintiff’s argument that the Agency treated the offerors unequally, see Pl.’s Mot.
12, simply is not supported by the administrative record. 26 First, the administrative

26
Moreover, the court finds that many of plaintiff’s claims in support of this argument,
see Pl.’s Mot. 10-14; Pl.’s Resp. to Def.’s Mot. for J. upon the Admin. R. (Pl.’s Resp.), Dkt. No.
31, at 5-6, are misleading and based on incomplete portions of the administrative record. To
illustrate, the court addresses plaintiff’s arguments involving the Agency’s evaluation of the
welding requirement.

Plaintiff alleges that the Agency assigned [* * *] a high risk rating for welding because
“[[* * *]’s] experience did not explicitly address welding to [American Welding Society (AWS)
Standard] D18.3./18.3M,” and that “the Agency assessed Entwistle as only ‘Moderate Risk,’
even though ‘none of . . . [Entwistle’s] referenced experience explicitly addressed welding
stainless steel in accordance with AWS D18.3/18.3M.’” Pl.’s Mot. 10 (second alteration in
original) (emphasis omitted) (quoting AR 1763 (Entwistle’s Final Evaluation Report)). Plaintiff
fails to mention, however, that the full extent of [* * *]’s references to welding consisted of
unsupported assertions that three of its contracts required “stainless steel welding.” See AR
3481-82, 3486 ([* * *]’s Experience Volume); see also AR 1891 (SSDD) (stating that [* * *]
received a high risk rating “because it simply mentioned stainless steel welding” without
providing any “other scope of work documentation . . . to substantiate the [* * *] proposed
experience”).

By contrast, Entwistle included actual excerpts of the Scope of Work (SOW)/purchase
description from its contract for the production of FORCE Systems (FORCE contract), which
specifically addressed the welding requirements of the FORCE contract. See AR 1710
(Entwistle’s Revised Experience Volume) (“Piping shall be welded IAW ASME B31.3. All
welding procedures and welder[s] employed shall be certified IAW ASME Boiler and Pressure
Vessel Code, Section IX. Steel shall be welded IAW AWS D1.1.”). Entwistle also included
purchase description excerpts from its contract for the production of Tank Cleaning Vacuum
Systems (Vacuum contract), which implicated the welding codes associated with the
manufacturing standards under the Vacuum contract. See id. at 1716 (stating that the Tank
Cleaning Vacuum Systems “are manufactured in accordance [with] A[SM]E-BPVC Section
record does not support plaintiff’s assertion that [* * *], [* * *] and [* * *] all “claimed

VIII, Div.”). Given this information, the SSEB considered Entwistle’s welding experience under
both the FORCE contract and the Vacuum contract “somewhat relevant” and rated Entwistle as
“moderate risk.” See AR 1763 (Entwistle’s Final Evaluation Report) (capitalization omitted).
Specifically, the SSEB found the FORCE contract “somewhat relevant because it involves the
welding of piping to ASME B31.3, . . . welders and welding procedures that are certified to
ASME BPVC Section IX[,] [and] . . . requires steel [to] be welded to AWS D1.1.” Id. The
SSEB also found the Vacuum contract “somewhat relevant because it requires tanks [to] be
manufactured in accordance with the ASME BPVC,” and, according to the SSEB, “[w]elding to
these codes equates to meeting some of the magnitude of effort and complexities required by this
solicitation.” Id. Given the foregoing, the Agency acted with a rational basis when it rated the
welding experience of Entwistle as moderate risk and the welding experience of [* * *] as high
risk. Cf. E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (stating that “such
matters as technical ratings” involve “the minutiae of the procurement process . . . that a court
will not second guess”). In the light of the foregoing, the court finds that the Agency did not
hold Entwistle to a different standard than [* * *].

Plaintiff also claims that the Agency considered relevant Entwistle’s experience welding
to the AWS D1.1 standard but that the Agency ignored similar welding experience of [* * *] and
[* * *]. See Pl.’s Mot. 12 (“[U]nless you were Entwistle, the Agency was not interested in your
ability to weld to AWS D.1.1.”). As support, plaintiff claims that the Agency considered
Entwistle’s FORCE contract “to be somewhat relevant because it required steel to be welded to
AWS D1.1,” id. at 11, which “is contrary to what the Agency said about [* * *]’s experience
welding to AWS D1.1 and D1.2,” id. at 12. Plaintiff misconstrues the facts.

As noted above, the Agency found the FORCE contract somewhat relevant because, in
addition to requiring steel to be welded to AWS D1.1, it also found that the FORCE contract
“involve[d] the welding of piping to ASME B31.3, and welders and welding procedures that are
certified to ASME BPVC Section IX.” AR 1763 (Entwistle’s Final Evaluation Report).
Moreover, unlike Entwistle’s provision of excerpts from the SOW or purchase description of the
FORCE contract, see AR 1710 (Entwistle’s Revised Experience Volume), both [* * *] and
[* * *] simply asserted, without support, that one of their contracts required welding to the AWS
D1.1 standard, see AR 4243 ([* * *]’s Experience Volume) (stating that [* * *]’s contract for C-
5 Isochronal Maintenance Stands required “[w]elding per AWS D1.1”); AR 3702 ([* * *]’s
Experience Volume) (stating that [* * *]’s contract for the production of trailers “was welded
I.A.W. AWS.D1.1”). The Agency did not find the welding experience of either [* * *] or [* * *]
relevant because neither provided information that verified its experience. See AR 4326
([* * *]’s Final Evaluation Report); AR 4344 ([* * *]’s Final Evaluation Report); AR 1884, 1905
(SSDD) (stating that [* * *]’s and [* * *]’s “assertions regarding [welding] experience lacked
meaningful credibility where [they] failed to include [SOW] or paraphrased/quoted contract
provision extracts in [their] proposal[s]”). Given the foregoing, the court finds that the Agency
acted reasonably and well within its discretion when it gave Entwistle a welding experience
rating of moderate risk, while rating the welding experiences of both [* * *] and [* * *] as high
risk. Cf. E.W. Bliss Co., 77 F.3d at 449. Accordingly, the court finds that the Agency did not
hold Entwistle to a different standard than [* * *] or [* * *].
experience in a manner similar to Entwistle.” Cf. Pl.’s Mot. 7. In fact, these “offerors
supplied the agency with widely varying amounts of information to document their
experience.” See Def.’s Mot. 25; supra Part III.B.1 (summarizing the information
provided by each offeror).

Moreover, plaintiff has failed to establish that the Agency addressed the varying
amounts information provided by the offerors in an unfair or irrational manner. When an
offeror provided verifiable experience, regardless of whether that included excerpts of
SOWs or a discussion of similarities between these relevant SOWs and the Solicitation’s
SOW, the SSEB credited the offeror with that experience and did so in a fair and rational
manner. See, e.g., AR 1760 (Entwistle’s Final Evaluation Report) (crediting Entwistle
for its inclusion of “purchase description requirements” for the Vacuum contract under
the comparable items consideration); AR 4305 ([* * *]’s Final Evaluation Report)
(crediting [* * *] for “[a] number of paraphrased system requirements” that [* * *]
provided in support of its comparable item experience). Similarly, when an offeror failed
to provide verifiable experience, the SSEB downgraded the offeror’s ratings fairly and
rationally. See, e.g., AR 1760-61 (Entwistle’s Final Evaluation Report) (downgrading
Entwistle’s technical manual rating because of the limited information Entwistle provided
regarding the technical manuals supplied under the FORCE contract); AR 4324 ([* * *]’s
Final Evaluation Report) (assigning [* * *] a high risk technical manual rating because of
[* * *]’s failure to provide supporting documentation); see also supra notes 18 (noting the
Agency’s refusal to credit Entwistle with experience associated with a military
specification because the application of the specification to the Solicitation was
considered questionable), 24 (noting the Agency’s refusal to credit [* * *] with
experience associated with a contract because the award of the contract could not be
verified).

Plaintiff has failed to meet the heavy burden required to show that the Agency
violated FAR 1.602-2 and treated Entwistle, [* * *], [* * *] and [* * *] unequally in its
evaluation of experience. Cf. FAR 1.602-2 (providing that contracting officers must
“[e]nsure that contractors receive impartial, fair, and equitable treatment”); L-3
Commc’ns I, 83 Fed. Cl. at 650 (“[T]he protestor’s burden [of proof] is especially heavy
in negotiated, best value procurements.”). To the extent that the Agency “assessed
[Entwistle] more favorable risk ratings than other offerors,” see Pl.’s Resp. 8, the court
finds that the Agency’s evaluation of the offerors’ experience was rational and reasonable
and that the Agency “provided a coherent and reasonable explanation of its exercise of
discretion,” cf. Impresa, 238 F.3d at 1332-33 (internal quotation marks omitted). As
intervenor points out, “[a]ssessing the significance of the differences in each offeror’s
experience, as reflected in its proposal, is the heart of the proposal evaluation process
entrusted to the Agency.” See Intervenor’s Mot. 22; see also id. at 23 (“The fact that
Plaintiff disagrees with the judgment reached by the SSEB in this matter . . . falls far
short of meeting Plaintiff’s heavy burden to set aside the Agency’s technical evaluation
in this negotiated, best value procurement.”); cf. E.W. Bliss Co., 77 F.3d at 449 (stating
that “such matters as technical ratings” involve “the minutiae of the procurement
process . . . that a court will not second guess”); One Largo, 109 Fed. Cl. at 74 (stating
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” (alteration and internal
quotation marks omitted)). 27

27
In its Response, plaintiff appears to argue, in the alternative, that the Solicitation
required offerors to provide copies of SOWs and that the “Agency’s waiver” of this requirement
for “some offerors,” that is, Entwistle, [* * *], [* * *] and [* * *]--but not for Mil-Mar--“was
arbitrary, capricious and resulted in disparate treatment.” Pl.’s Resp. 1; see id. at 1-2 (arguing
that a “plain reading of the RFP” suggests that a failure to submit copies of SOWs equates to “a
failure to submit sufficient information about prior experience” (internal quotation marks
omitted)); cf. Def.’s Reply in Supp. of Its Cross-Mot. for J. upon the Admin. R. (Def.’s Reply),
Dkt. No. 34, at 2 (claiming that, after defendant “made [the] showing” that the Agency
evenhandedly “assess[ed] the sufficiency of information provided about offerors’ experience,”
plaintiff “shifted its argument[]” and asserted that this approach to evaluating experience was
prohibited under the Solicitation). According to plaintiff, “the Agency’s use of an evaluation
methodology different from what was stated in the RFP benefited Entwistle and prejudiced Mil-
Mar,” Pl.’s Resp. 7, because Mil-Mar, unlike “most of the competition,” submitted a “100%
compliant proposal,” id. at 6-7.

As plaintiff points out, see Pl.’s Mot. 6, most of the offerors failed to include, for each of
the recent and relevant contracts identified, copies of actual SOW provisions, see Part III.B.1
(discussing offerors’ prior contract submissions). Under Section L.5.4 of the Solicitation, the
Agency could have found these proposals “unacceptable” and eliminated them “from
consideration for award.” See AR 265 (RFP). However, rather than “eliminat[ing] most of the
competition,” plaintiff argues that the Agency “tried to evaluate offerors based on some ad hoc
and unsubstantiated methodology that was not in accord with the RFP.” Pl.’s Resp. 7; see id. at
2 (arguing that the Solicitation does not permit the Agency to rely on “this Government-
proffered alternative method of evaluating claimed experience,” that is, submission of “sufficient
other information about . . . prior experience” (internal quotation marks omitted)).

Defendant counters, and the court agrees, that “the agency’s assessment of experience
was entirely consistent with the terms of the solicitation.” Def.’s Reply 4; see Tr. 60:24-61:5
(Barbara E. Thomas (Ms. Thomas)) (“Nothing in the solicitation required that the agency could
only look at [SOWs]. Nothing said that the agency can’t look at other types of information about
contracts that are submitted, and nothing in the solicitation said the agency must refuse to give
credit for experience on a contract for which an offeror didn’t submit a [SOW].”). Section L.5.4
of the Solicitation provided that “[f]ailure to provide the information requested under [Section]
L.5.4”--which included copies of actual SOW provisions--“so that the Government can verify
claimed experience may result in a determination that” the offeror’s proposal was unacceptable
and, therefore, eliminated “from consideration for award.” AR 265 (RFP) (emphasis added); see
also id. at 276 (providing that the Agency “may” reject a proposal if the proposal “provides some
data but omits significant material data and information required by Section L”). Defendant
argues that, “by providing that a proposal ‘may’ be found unacceptable if it fails to include the
Finally, defendant argues that even if plaintiff could establish that the Agency
treated Entwistle more favorably than [* * *], [* * *] and [* * *], plaintiff could not
establish prejudice because none of plaintiff’s unequal treatment claims actually involve
Mil-Mar. Def.’s Mot. 29; see id. at 30 (“Mil-Mar has failed to demonstrate that the
absence of the supposedly disparate treatment it describes would have had any effect on
its own chances of winning the Hippo contract.”); cf. Data Gen. Corp., 78 F.3d at 1562
(stating that, in order to prevail in a bid protest, the plaintiff must demonstrate both that
an error occurred and that the error was prejudicial). Defendant contends that plaintiff’s
“arguments therefore differ drastically from those of protestors who have successfully
presented disparate treatment arguments” because, “[i]n those cases, the protestor
typically argued that its own proposal had been subject to disparate treatment.” Def.’s
Mot. 29-30 (citing BayFirst Solutions, LLC v. United States, 102 Fed. Cl. 677, 690-91
(2012) and Hunt Bldg. Co. v. United States, 61 Fed. Cl. 243, 273-74 (2004), modified, 63
Fed. Cl. 141 (2004)).

Plaintiff contends that if the Agency had treated all offerors equally, Entwistle
would have received “higher risk ratings for several of the considerations, which would
have materially altered the Agency’s best value tradeoff,” and that “Mil-Mar, with the
highest rating and a competitive price, would have had a substantial chance of receiving
the award.” Pl.’s Mot. 15; see also Pl.’s Resp. 7 (“But for Entwistle’s artificially inflated
ratings, the Government’s trade off would have been between Mil-Mar and other
similarly priced offerors and there is a substantial chance Mil-Mar would have been
awarded the contract.”). Defendant counters that plaintiff fails to consider that, but for

information requested, the solicitation contemplates that . . . a proposal may be found acceptable
even though it fails to include some requested information.” Def.’s Reply 3.

Defendant’s argument is further supported by Section M.3.5 of the Solicitation, which
provides that the successful offeror’s proposal must “meet[] all the material requirements of this
solicitation.” AR 277 (RFP) (emphasis added). “As that language indicates, the agency
expressly anticipated, and the solicitation explained, that even the ultimately successful offeror
might not meet every requirement of the solicitation.” Def.’s Reply 3; see Tr. 62:17-20 (Ms.
Thomas) (“[The solicitation] expressly contemplated that even if an offeror didn’t submit all the
information that the solicitation said was ‘required’, that they still might win the award.”).
Accordingly, the court does not consider the Agency’s decision to rely on other information to
verify claimed experience as “a failure to follow the terms of its own Solicitation,” cf. Hunt
Bldg. Co. v. United States, 61 Fed. Cl. 243, 273 (2004) (“The agency’s failure to follow the
terms of its own Solicitation and selection of an offeror based upon different requirements than
those imposed upon the only other offeror are quintessential examples of conduct which lacks a
rational basis.”), modified, 63 Fed. Cl. 141 (2004); infra note 33 (noting that although the
Solicitation appears to require certain information in one section, it affords the Agency flexibility
regarding that information in another).
the alleged disparate treatment, the Agency would have assigned the other offerors lower
risk ratings. See Def.’s Mot. 30.

The court finds that plaintiff’s attenuated argument does not support a showing of
“substantial prejudice.” Cf. Brooks Range, 101 Fed. Cl. at 707 (“In the context of a post-
award bid protest, the plaintiff must demonstrate substantial prejudice by showing that
there was a substantial chance it would have been awarded the contract but for the
agency’s error.” (internal quotation marks omitted)). Plaintiff cites to no authority, and
the court is aware of none, that supports plaintiff’s argument that a party not subject to
the alleged unequal treatment claims can demonstrate prejudice. See Tr. 46:19-24
(colloquy between the court and Barbara Ann Duncombe (Ms. Duncombe)) (the court:
“[D]o you all have any authority . . . in support of a finding of unequal treatment when
the Plaintiff was not the subject [of the unequal treatment claims]?” Ms. Duncombe:
“No, Your Honor.”). Although plaintiff may be “looking to make some new case[]law,”
see Tr. 46:25 (Ms. Duncombe), the court is not similarly inclined.

C. The Agency Did Not Conduct Improper, Unequal Discussions

Plaintiff argues that the government engaged in exclusive discussions with
Entwistle that allowed Entwistle to revise its proposal to make it compliant with the terms
of the Solicitation. See Compl. ¶ 117; Pl.’s Resp. 9. Specifically, plaintiff contends that
two of the government’s requests for clarification and Entwistle’s responses (the two
exchanges) constituted unequal discussions in violation of FAR 15.306. See Pl.’s Mot.
17-20; cf. supra Part I.C (discussing the content of the two exchanges). Plaintiff further
contends that “[h]ad the Agency not entered into unequal discussions with Entwistle, it
would have concluded that it could not adequately evaluate Entwistle’s significantly
lower price for realism and would have rejected its offer.” Compl. ¶ 117; see Pl.’s Resp.
9 (claiming that the alleged discussions “help[ed] make [Entwistle’s] proposal compliant
with the RFP’s requirements”). Defendant counters that “[t]here is no reasonable basis
for concluding that these two exchanges constituted discussions,” Def.’s Mot. 33, and
that, “[e]ven if the agency’s exchanges with Entwistle had constituted discussions, . . .
Mil-Mar has not demonstrated that it was prejudiced,” id. at 34. For the following
reasons, the court finds that the two exchanges did not constitute discussions and that,
therefore, the Agency did not enter into unequal discussions with Entwistle. The court
further finds that, even if the two exchanges had constituted discussions, plaintiff has
failed to establish prejudice.

“In negotiated procurements, the procuring agency may engage in a wide range of
exchanges with offerors in order to facilitate the evaluation process and to permit the
agency to make an informed award decision.” Linc Gov’t Servs., LLC v. United States,
96 Fed. Cl. 672, 714 (2010) (citing FAR 15.306 and ITAC, 316 F.3d at 1320-23).
“Different exchanges are permitted under different circumstances and at various stages of
the procurement process.” Id. For example, “negotiations” are exchanges “that are
undertaken with the intent of allowing the offeror to revise its proposal,” and
“discussions” are negotiations that occur “after establishment of the competitive range”
in competitive acquisitions. FAR 15.306(d). “The primary objective of discussions is to
maximize the Government’s ability to obtain best value, based on the requirement and the
evaluation factors set forth in the solicitation.” FAR 15.306(d)(2); see ITAC, 316 F.3d at
1322 (“[W]hen discussions are opened, bidders have the opportunity to revise their
proposals, in order ‘to maximize the Government’s ability to obtain best value.’” (quoting
FAR 15.306(d)(2))). When an agency decides to hold discussions, they “must be
conducted . . . with each offeror within the competitive range.” FAR 15.306(d)(1); cf.
FAR 15.306(e) (providing that the government “shall not engage in conduct that . . .
[f]avors one offeror over another”).

Where, as here, see AR 276 (RFP), a solicitation provides “that the Government
intends to evaluate proposals and make award without discussions,” FAR 15.306(a)(3),
an agency may engage offerors in clarifications, see FAR 15.306(a). FAR 15.306(a)
defines clarifications as “limited exchanges,” FAR 15.306(a)(1), that are intended to give
offerors “the opportunity to clarify certain aspects of proposals (e.g., the relevance of an
offeror’s past performance information and adverse past performance information to
which the offeror has not previously had an opportunity to respond) or to resolve minor
or clerical errors,” FAR 15.306(a)(2). 28 Unlike discussions, which must be conducted
equally with all offerors within the competitive range, see FAR 15.306(d)(1), an agency
has the discretion to engage in clarifications with just one offeror, DynCorp Int’l LLC v.
United States (DynCorp), 76 Fed. Cl. 528, 540 (2007).

Section L.6.6 of the Solicitation provided that “the Government reserves the right,
as a clarification under FAR 15.306(a), to request additional or more detailed price
breakdown data to support its determination of price reasonableness.” AR 266 (RFP).
Although it is “[t]he actions of the parties, not the characterization by the agency, [that]
determine whether discussions have been held,” Allied Tech. Grp., Inc. v. United States
(Allied Tech.), 94 Fed. Cl. 16, 44 (2010), aff’d, 649 F.3d 1320 (Fed. Cir. 2011), the
agency’s characterization of an exchange as a clarification is entitled to deference from
the court, G4S Tech. CW LLC v. United States (G4S), 109 Fed. Cl. 708, No. 12-705C,

28
The court notes that, in 1997, “the definition of ‘clarifications’ was significantly
broadened” by amendment to the Federal Acquisition Regulations (FAR). ITAC, 316 F.3d at
1321-22 (comparing FAR 15.601 (1991) with FAR 15.306(a)(2) (2002)); see also Linc Gov’t
Servs., LLC v. United States, 96 Fed. Cl. 672, 715 (2010) (noting that “the 1997 amendments to
the FAR were intended to broaden significantly the definition of ‘clarifications’”). “The stated
purpose of the 1997 amendments to section 15 of the regulations was to ‘provide for
empowerment and flexibility’ and ‘shift from rigid rules to guiding principles.’” ITAC, 316 F.3d
at 1321 (quoting Federal Acquisition Circular 97-02, 62 Fed. Reg. 51,244, 51,225 (Sept. 30,
1997)). “Specifically, the new regulations were intended to support more open exchanges
between the Government and industry.” Id. (alterations and internal quotation marks omitted).
2013 WL 935890, at *12 (Fed. Cl. Mar. 12, 2013) (citing ITAC, 316 F.3d at 1323).
“Thus, this court must give deference to an agency’s view that an [exchange] was a
clarification, as long as that interpretation was permissible and reasonable.” Dyncorp, 76
Fed. Cl. at 542 (internal quotation marks omitted); see ITAC, 316 F.3d at 1323 (stating
that the United States Court of Appeals for the Federal Circuit (Federal Circuit) “recently
emphasized that the [federal] acquisition regulations entrust the contracting officer with
especially great discretion, extending even to his application of procurement regulations”
(alteration and internal quotation marks omitted)).

The two exchanges that plaintiff challenges took the form of limited e-mail
correspondence between the agency and Entwistle. See supra Part I.C (describing the
two exchanges). Each of the government’s requests for clarification included the
following disclaimer: “[N]either this communication nor your submission of requested
clarification information in response to this communication will constitute discussions as
described in FAR 15.306(d) . . . . Be advised that this clarification request does not allow
you to modify your proposal, including your proposed prices, in any way.” AR 1848,
1853 (two requests for clarification). In the first request, the Agency asked Entwistle to
“clarify the cost (material and labor) associated with fabricating the ISO frame.” AR
1773 (Initial PER). Entwistle responded as follows: “The estimated material cost for the
frame is $[* * *]. The estimated labor for fabricating the frame is [* * *] hours.” Id. In
the second request, the Agency asked Entwistle to “clarify how [its] proposed labor hours
are adequate to carry out the steps necessary for production of the First Article Test items
and production quantities.” Id. Entwistle responded as follows: “The production labor
hours were estimated for each labor category based on our understanding of the
solicitation requirements. Based on our experience with design programs, a factor was
applied to the production hours to arrive at the first article labor hours.” Id. at 1774.

Plaintiff argues that these two exchanges amounted to discussions because the
Agency “gave Entwistle an opportunity to revise its proposal by asking it to provide
material information that was required, but omitted, from Entwistle’s proposal, and that
was critical to the Agency’s ability to evaluate the realism of Entwistle’s price.” 29 Pl.’s
Mot. 18 (emphasis omitted); see also Tr. 11:21-23 (Ms. Duncombe) (conceding that the
first exchange “gave Entwistle the opportunity to basically cure a proposal deficiency
with material information that it had omitted”); Pl.’s Mot. 20 (arguing that, in the second
exchange, Entwistle made “its proposal more appealing to the Agency by submitting
29
Plaintiff also contends that, by allowing Entwistle to provide information regarding the
cost and labor associated with the ISO frame, “the Agency gave Entwistle the opportunity to cure
a material omission in violation of FAR [] 15.306(b)(2).” Pl.’s Mot. 19. However, as defendant
correctly points out, see Def.’s Mot. 32, FAR 15.306(b) concerns communications, a type of
exchange not at issue here, cf. FAR 15.306(b) (2012) (defining “communications” as
“exchanges, between the Government and offerors, after receipt of proposals, leading to the
establishment of the competitive range”).
information that the Agency thought was necessary for its analysis of Entwistle’s
proposed price”). Plaintiff also contends that neither exchange is governed by Section
L.6.6 of the Solicitation because “the Agency requested Entwistle [to] provide key
pricing information not present in its proposal--not additional information or more
details.” See Compl. ¶ 78; see Tr. 13:11-14 (Ms. Duncombe) (conceding that “any time
the government issues a question to an offeror, . . . it’s going to be asking for additional
information”); cf. AR 266 (RFP) (providing in Section L.6.6 that “the Government
reserves the right, as a clarification under FAR 15.306(a), to request additional or more
detailed price breakdown data to support its determination of price reasonableness”).
Defendant responds that plaintiff’s argument “is predicated upon the incorrect assertion
that the information provided by Entwistle to the agency during these two exchanges was
required by the solicitation.” Def.’s Reply 6; cf. Allied Tech., 94 Fed. Cl. at 45
(determining that an exchange was a clarification partly because “nothing in the
Solicitation expressly required” the information requested by the Agency).

The court finds that the information provided by Entwistle in the first exchange--
the estimated material cost and labor hours for fabricating the ISO frame--was required
by the Solicitation, but that the information provided by Entwistle in the second
exchange--an explanation of how its proposed labor hours were estimated--was not.
With respect to the first exchange, Section L.6 of the Solicitation required offerors to
identify all parts with an estimated cost of $500 or more in their Bill of Material and also
to provide their proposed direct labor hours. AR 265-66 (RFP) (stating that offerors
“shall” provide this information in Attachment 16); see supra Part I.A.1 (discussing
Attachment 16). The record suggests that Entwistle failed to include the cost of the ISO
frame in its proposal despite this requirement. 30 See AR 1656-60 (Entwistle’s
Attachment 16) (listing no identifiable costs associated with the frame); AR 1785
(Entwistle PER) (observing that Entwistle “did not provide all of the requested
information in [the Bill of Material in] Attachment []16”). The record is less clear as to
whether Entwistle included in Attachment 16 the [* * *] labor hours it estimated it would
take to manufacture an ISO frame. In response to the third request for clarification
regarding direct labor hours, which plaintiff does not dispute, see Pl.’s Mot. 18-20
(disputing only the second and fourth requests for clarification), Entwistle provided a
corrected Attachment 16, in which Entwistle estimates [* * *] hours of machining and
[* * *] hours of welding, see AR 1777 (corrected Attachment 16); AR 1833 (Entwistle
30
Entwistle estimated that the material cost of the ISO frame was $[* * *], AR 1773
(Initial PER), and the court considers it unlikely that none of the parts Entwistle intended to use
to manufacture the frame cost more than $500, cf. AR 266 (RFP) (requiring offerors to “enter all
parts with the extended cost per system of $500 or higher in the [Bill of Material]”); Def.’s Reply
6 (arguing that “although the solicitation did ask offerors to specify the cost of parts with an
extended value of more than $500, Mil-Mar has not shown that any of the parts Entwistle
intended to use to build its frame had an extended value of more than $500” (internal citation
omitted)).
PER Addendum) (discussing Entwistle’s corrected Attachment 16). The Agency appears
to have viewed the summation of these two categories of work as constituting the [* * *]
labor hours estimated by Entwistle to manufacture the frame. See AR 1868 (Aug. 29,
2012 e-mail from Agency engineer Catherine Thomas to contracting officer Yvette
Thompson (August 29, 2012 e-mail or Aug. 29, 2012 e-mail)) (stating that, based on her
“review of [an] ISO frame on a completed Hippo from [Agency] inventory,” she could
not “conclude that an offeror, with [* * *] hours of machining and [* * *] hours of
welding, [would] not be able to successfully perform and meet the solicitation
requirements”); infra Part III.D.2 (discussing the August 29, 2012 e-mail). The court
does not consider this view unreasonable.

With respect to the second exchange, the court agrees with defendant that nothing
in the Solicitation required offerors to describe “how offerors estimated their labor
hours.” See Def.’s Reply 6; cf. AR 265 (requiring offerors only to provide “the total
proposed direct labor hours and direct labor hours broken down by proposed labor
category”).

To the extent that Entwistle provided required information that was missing from
its proposal through the two exchanges, plaintiff asserts that such information was
material information that was necessary for the Agency to evaluate Entwistle’s proposal.
See Pl.’s Mot. 18; Tr. 14:7-8 (Ms. Duncombe) (arguing that the Agency sought “material
information that was missing from [Entwistle’s] proposal”). As to the information
provided in the first exchange, plaintiff contends that the “ISO frame is one of the two
most important and expensive parts of the Hippo,” and that without the cost of the frame,
the Agency “could not evaluate the realism of Entwistle’s price.” Pl.’s Mot. 19. Indeed,
the SSEB considered the frame a “major item” and reviewed the offerors’ cost of the
frame in the Initial Price Evaluation Report for the purpose of “test[ing] price realism.”
AR 1768 (Initial PER). However, the SSEB also found the information that Entwistle
omitted from its Attachment 16, which included the material costs of the frame over $500
and possibly the number of labor hours necessary to manufacture the frame, “was not
significantly material to reject [Entwistle’s] proposal.” 31 AR 1785 (Entwistle PER); cf.

31
When questioned by the court about the SSEB’s finding during oral argument, counsel
for plaintiff suggested that “the agency was blinded by the low price, and they really wanted to
find a way to make sure [Entwistle’s] really substantially lower price proposal could be awarded
the contract.” Tr. 17:15-19 (Ms. Duncombe); see id. at 17:19-22 (arguing that the Agency
attempted to “justify [Entwistle’s] lower price” “throughout this whole evaluation”).

Defendant argues, and the court agrees, that to the extent plaintiff claims that the Agency
carried out the evaluation in bad faith--“that the agency somehow engaged in a conspiracy to
elevate the . . . ratings of Entwistle’s proposal so that it could take advantage of this low price” or
“that it was engineering [the evaluation] in some way to produce a result that wasn’t justified by
the actual content[] of the proposal[],” Tr. 65:7-14 (Ms. Thomas)--plaintiff has failed to rebut
with “well-nigh irrefragable proof” the presumption that “government officials discharge their
AR 277 (RFP) (stating that the contract awardee must meet “all the material requirements
of [the] solicitation” (emphasis added)). Determining whether a requirement of the
Solicitation is considered a material requirement is a matter within the Agency’s
discretion. See Allied Tech., 94 Fed. Cl. at 40 (“[T]he Court only will overturn an
agency’s determination that an offeror’s proposal failed to satisfy the material
requirements of the solicitation if such a finding was arbitrary and capricious.”). And
plaintiff has failed to meet the heavy burden necessary to show that the Agency abused
its discretion by finding that the cost of the ISO frame--including materials and possibly
labor hours--was not a material requirement. 32 See AR 1785 (Entwistle PER); cf. L-3
Commc’ns I, 83 Fed. Cl. at 650 (“[T]he protestor’s burden is especially heavy in
negotiated, best value procurements.”). The court finds that the Agency’s decision had a
rational basis and the court will not substitute its judgment for the Agency’s. Cf.
Honeywell, Inc., 870 F.2d at 648 (“If the court finds a reasonable basis for the agency’s
action, the court should stay its hand even though it might, as an original proposition,
have reached a different conclusion as to the proper administration and application of the
procurement regulations.” (internal quotation marks omitted)); Baird Corp., 1 Cl. Ct. at
664 (stating that, under the APA standard of review, the court “should intervene only
when it is clearly determined that the agency’s determinations were irrational or
unreasonable”).

As to the information provided in the second exchange, the court finds that
plaintiff has failed to make any showing that Entwistle’s description of how its proposed
labor hours were estimated, see AR 1774 (Initial PER), was material information that was
essential for the Agency to evaluate Entwistle’s proposal.

duties, correctly, lawfully, and in good faith,” John Massman Contracting Co. v. United States,
23 Cl. Ct. 24, 33 (1991) (internal quotation marks omitted); see also Schism v. United States,
316 F.3d 1259, 1302 (Fed. Cir. 2002) (en banc) (stating that government officials are presumed
to “perform their duties correctly, fairly, in good faith, and in accordance with law and governing
regulations . . . and [that this presumption] is valid and binding unless well-nigh irrefragable
proof rebuts or overcomes it” (internal quotation marks and citation omitted)).
32
The court observes that the Independent Government Cost Estimate (IGCE) indicated
that manufacturing an entire Hippo unit would cost $[* * *], see AR 1871 (IGCE), and that
manufacturing the ISO frame would cost $[* * *] in materials, id. at 1872, and approximately
$[* * *] in labor, see id. at 1874 (stating that “[l]abor hours were increased . . . due to fabrication
process of ISO frame . . . by [* * *] hours for welder, [* * *] hours for production supervisor,
[* * *] hours for quality, and [* * *] hours for material handler); id. at 1874-75 (providing hourly
rates of $[* * *] for welding, $[* * *] for production supervision, $[* * *] for quality control
inspection and $[* * *] for material handling). The fact that the IGCE suggested that the total
cost of the ISO frame--including materials and labor--should be some $[* * *], or approximately
[* * *] % of the estimated total cost of manufacturing an entire Hippo unit, supports a finding
that the Agency’s determination that the omitted cost of the ISO frame was not material had a
rational basis.
Even if the court were to find that, through the two exchanges, Entwistle provided
the Agency with information that was essential for the Agency to evaluate Entwistle’s
proposal, the Federal Circuit has found that “[t]here is no requirement in [FAR 15.306(a)]
that a clarification not be essential for evaluation of the proposal.” ITAC, 316 F.3d at
1323; see id. (rejecting the appellant’s contention that “a clarification cannot call for new
information if the information is necessary to evaluate the proposal” (internal quotation
marks omitted)). Although plaintiff argues that the facts here are distinguishable from
those before the Federal Circuit in ITAC, see Tr. 15:23-16:23 (Ms. Duncombe); Pl.’s
Resp. 8-9, the Federal Circuit’s reading of FAR 15.306(a) is no

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/899857. Public record. Not legal advice.