Glenn Defense Marine (Asia), PTE Ltd. v. United States

United States Court of Appeals

for the Federal Circuit

______________________

GLENN DEFENSE MARINE (ASIA), PTE LTD.,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee,

AND

MLS-MULTINATIONAL LOGISTIC SERVICES LTD,

Defendant-Appellee.

______________________

2012-5125

______________________

Appeal from the United States Court of Federal

Claims in No. 11-CV-718, Judge Marian Blank Horn.

______________________

Decided: June 25, 2013

______________________

DAVID S. BLACK, Holland & Knight, LLP, of McLean,

Virginia, argued for plaintiff-appellant. With him on the

brief was GREGORY R. HALLMARK.

ARLENE PIANKO GRONER, Senior Trial Counsel, Com-

mercial Litigation Branch, Civil Division, United States

Department of Justice, of Washington, DC, argued for

defendant-appellee, United States. With her on the brief

were STUART F. DELERY, Acting Assistant Attorney Gen-

2 GLENN DEFENSE MARINE v. US

eral, JEANNE E. DAVIDSON, Director, and MARTIN F.

HOCKEY, JR., Assistant Director.

SARAH M. GRAVES, Husch Blackwell, LLP, of Wash-

ington, DC, argued for defendant-appellee, MLS-

Multinational Logistic Services, LTD. With her on the

brief were WALTER A.I. WILSON, DANIEL J. DONOHUE and

CLAUDE P. GODDARD, JR.

______________________

Before MOORE, REYNA, and WALLACH, Circuit Judges.

Opinion for the court filed by Circuit Judge WALLACH,

Dissenting opinion filed by Circuit Judge MOORE.

WALLACH, Circuit Judge.

Glenn Defense Marine (Asia), PTE Ltd. (“GDMA”) ap-

peals from the order of the United States Court of Federal

Claims granting the motions of the government and MLS-

Multinational Logistic Services Ltd. (“MLS”) for judgment

on the administrative record. Glenn Defense Marine

(Asia), PTE Ltd. v. United States, 105 Fed. Cl. 541, 583

(Fed. Cl. 2012). 1 Because GDMA failed to establish that

the award of the contract to MLS was arbitrary, capri-

cious, an abuse of discretion, or otherwise not in accord-

ance with law, we affirm the Court of Federal Claims.

BACKGROUND

The United States Navy, Naval Supply Systems

Command, Fleet Logistics Center Yokosuka (“Navy”)

solicited bids on November 3, 2009 for maritime husband-

1 Citations to the Court of Federal Claims decision

are from the redacted version issued for publication July

17, 2012. The opinion was issued under seal on May 25,

2012.

GLENN DEFENSE MARINE v. US 3

ing support services to Navy ships visiting ports in four

regions in the Western Pacific and Indian Ocean for

separate negotiated procurements. Offerors were in-

structed to submit separate proposals for each region in

which they sought a contract. The contract for each

region would be “Firm-Fixed-Price Indefinite-Delivery,

Indefinite-Quantity (IDIQ) type contract,” with a twelve-

month base period and four one-year options. Solicitation

No. N62649-09-R-0041 (“Solicitation”). The Solicitation

stated the Navy would award contracts to those proposals

that would be “most advantageous to the Government.”

Id. ¶ OP-1.1. The solicitation also stated that, “[t]he

following factors, in order of importance, shall be used to

evaluate acceptable offers: Technical Approach, Past

Performance, and Price. The non-price factors, when

combined, are significantly more important than price.”

Id. ¶OP-1.8. The Navy stated it “may accept other than

the lowest priced proposal.” Id. ¶OP-1.5.

Offerors were instructed to submit a Past Perfor-

mance Matrix, Past Performance Reference Information

4 GLENN DEFENSE MARINE v. US

Sheets, and other past performance information. 2 In its

Past Performance Matrix an offeror was required to list

“all directly related or similar Government or commercial

contracts or subcontracts currently being performed, or

completed in the past three years which are similar in

scope, magnitude[,] and complexity to that which is

detailed in this Solicitation.” Solicitation ¶ 5.2. Offerors

were also instructed to submit a Past Performance Refer-

ence Information Sheet identifying three to five individu-

als from the contracts listed in the Past Performance

Matrix to provide references. The Technical Evaluation

Board and the Past Performance Evaluation Team

(“Evaluation Team”) evaluated the offers using an adjec-

tival rating accompanied by a narrative to explain the

basis for the adjectival rating selected: “Outstanding,”

“Better,” “Satisfactory,” “Less than Satisfactory,” or

2 The Solicitation explains:

Past Performance is a measure of the degree to

which an offeror satisfied its customers in the past

by performing its contractual obligations on rele-

vant directly related contracts and subcontracts

(or partnerships or joint ventures) that are similar

in scope, magnitude, and complexity to that re-

quired by the solicitation (completed within the

past 3 years or currently in progress). There are

four areas to be reviewed: Level of Capability, Ef-

ficiency, and Effectiveness in Providing Service;

Conformance to the Terms and Conditions of the

Contract; Level of Reasonableness and Coopera-

tion; and Level of Commitment to Good Customer

Service. Under the Past Performance factor, each

of the areas to be reviewed will be given equal

consideration.

Solicitation at ¶ OP-18.2.1.

GLENN DEFENSE MARINE v. US 5

“Neutral.” These reports would be provided to the Procur-

ing Contracting Officer/Source Selection Authority who

would compare the strengths and weaknesses and make a

source selection decision. After all proposals were as-

signed a set of adjectival ratings, the Navy would engage

in negotiations with the offerors. After these negotiations

the Navy would determine which proposal provided the

best value to the Navy by engaging in a trade-off process.

The contract would be awarded to the best value pro-

posal. 3

3 48 C.F.R. § 15.101-1 states:

(a) A tradeoff process is appropriate when it may

be in the best interest of the Government to

consider award to other than the lowest priced

offeror or other than the highest technically

rated offeror.

(b) When using a tradeoff process, the following

apply:

(1) All evaluation factors and significant sub-

factors that will affect contract award and

their relative importance shall be clearly

stated in the solicitation; and

(2) The solicitation shall state whether all

evaluation factors other than cost or price,

when combined, are significantly more im-

portant than, approximately equal to, or

significantly less important than cost or

price.

6 GLENN DEFENSE MARINE v. US

On August 12, 2010, GDMA and MLS submitted their

proposals for the Region 1, South Asia, contract. The

Evaluation Team received responses to reference ques-

tionnaires from four of GDMA’s references and from one

contracting officer on a relevant contract. Each past

performance questionnaire asked the reference to provide

an overall rating of GDMA’s performance, a rating for

various subfactors, and left space for the reference to

provide additional comments. The Evaluation Team

determined that one of GDMA’s reference contracts was

highly relevant while the other three were moderately

relevant. For the highly relevant contract, reviewers gave

overall evaluations of “Better” or “Satisfactory.” The

Husbanding Branch Chief for the highly relevant contract

assessed GDMA’s overall performance as “Satisfactory.”

However, he gave GDMA a “Less than Satisfactory”

rating for several subfactors, including ease of communi-

cation, timely response to problems and ability to find

effective solutions, and performance within negotiated

price. J.A. 613. In the narrative comments the Husband-

ing Branch Chief noted that a number of pre-visit esti-

mates were received late, government specialists

routinely needed to request corrections, and email re-

sponses were routinely delayed. The review also noted

two past performance letters sent to GDMA: one for not

providing force protection barriers and the other for

failing to provide a proposed pricing plan. A reviewer of

one of the moderately relevant contracts indicated an

(3) This process permits tradeoffs among cost

or price and non-cost factors and allows

the Government to accept other than the

lowest priced proposal. The perceived

benefits of the higher priced proposal shall

merit the additional cost, and the ra-

tionale for tradeoffs must be documented

in the file in accordance with 15.406.

GLENN DEFENSE MARINE v. US 7

overall evaluation of “Outstanding,” but noted that

GDMA had received a past performance letter about their

customer service not being responsive.

In its initial summary report, the Evaluation Team

assigned GDMA an overall past performance rating of

“Satisfactory.” J.A. 536. In its report it cautioned that

although the references all gave GDMA overall ratings of

“Satisfactory” or better, those rating were not substanti-

ated with narrative comments, which instead provided

more support for the “Less than Satisfactory” ratings

assigned for several subfactors. The report referenced the

negative comments identified in the reviewers’ narratives:

non-responsiveness by customer service representatives,

late or incomplete pre-port visit estimates, a negative past

performance letter regarding force protection barriers,

failure to provide a pricing plan, delinquent payments,

and general non-responsiveness in communications.

On November 4, 2010, the Evaluation Team forward-

ed its assessments to the primary contracting officer who,

that same day, forwarded a draft of the pre-negotiation

Business Clearance Memorandum to a member of the

Contract Review Board (“Board”). The memorandum

assigned GDMA an overall performance rating of “Satis-

factory” but also reflected the concerns raised in the past

performance questionnaires. Glenn Defense Marine, 105

Fed. Cl. at 551. A Board member raised concerns with

the primary contracting officer over the “Satisfactory”

rating which, in his opinion, “appear[ed] dubious at best.”

Id. (internal quotation marks omitted). After discussing

the matter with the Evaluation Team, the primary con-

tracting officer responded that it was a borderline deci-

sion. Id. The Evaluation Team Chairman indicated to the

other reviewers that, in light of the Board member’s

concern about the “Satisfactory” rating, “[i]t may be easier

for us to adjust the ratings downward based on the cur-

rently available negative” comments, rather than attempt

to substantiate the “Satisfactory” rating. Id. (internal

quotation marks omitted).

8 GLENN DEFENSE MARINE v. US

Thereafter two Evaluation Team members submitted

revised ratings for GDMA, reporting an overall rating for

GDMA’s past performance as “Less than Satisfactory.” Id.

at 551–52. Their comments were similar to those in their

initial reviews, adding that the information was highly

relevant to the region and substantiated by specific and

detailed comments, and that the “[l]ack of effective man-

agement of subcontractors’ performance and controlling

contract cost had an overall effect on substandard busi-

ness practices of which savings to the Government was

[sic] not always maximized during port visits.” Id. at 552

(internal quotation marks omitted).

The Evaluation Team awarded MLS a past perfor-

mance rating of “Better,” with summary notes indicating

“[t]he offeror was very cooperative and committed to

customer service. This meant that the offeror’s past

performance record led to a strong expectation of custom-

er satisfaction and successful performance.” Id. (internal

quotation marks omitted). In each element of each area,

the Evaluation Team noted that there were no major

issues or weaknesses.

After initial evaluations were completed, a Business

Clearance Memorandum was drafted and the primary

contracting officer sent questions to both GDMA and MLS

and asked each to submit a final proposal. The primary

contracting officer raised eight past performance issues

with GDMA based upon comments in the questionnaires. 4

No past performance questions were asked of MLS. In

considering GDMA’s responses one reviewer noted that

the majority of the corrective actions could not be verified

4 These questions inquired about personnel respon-

siveness and communication difficulties, significant

differences in estimated prices and final invoices, failure

to provide purchasing plans, and failure to obtain re-

quired compensation for non-priced items.

GLENN DEFENSE MARINE v. US 9

and the responses did “not fully address the is-

sues/deficiencies although some of their responses seem

reasonable to resolve them.” Id. at 553 (internal quotation

marks omitted). The primary contracting officer stated

that GDMA’s “response to the past performance issue

about subcontractor management satisfactorily resolved

the concerns with that past performance issue. GDM[A]’s

response to the other 7 issues did not satisfactorily resolve

the past performance concerns raised by the [Evaluation

Team].” Id. (internal quotation marks omitted).

In the final evaluation both GDMA and MLS achieved

a Technical Approach rating of “Better” and a Security

Plan rating of “Acceptable.” Id. GDMA’s past perfor-

mance rating was “Less than Satisfactory,” while MLS’s

past performance rating was “Better.” However, MLS’s

price was $989,214.00 higher than GDMA’s price.

The primary contracting officer noted that GDMA and

MLS had relatively equal technical evaluations, but that

MLS’s past performance rating was higher; thus when

combining the non-price factors together, MLS was rated

higher than GDMA. Because of the difference in price, a

trade-off analysis was required to determine the best

value proposal. After performing the trade-off analysis,

the primary contracting officer concluded that MLS’s

proposal was the most advantageous and awarded MLS

the contract, Contract No. N62649-11-D-0015, on June 24,

2011.

GDMA filed a protest at the Government Accountabil-

ity Office (“GAO”) on July 5, 2011. GDMA argued, in

part, that the negative comments should not have been

weighted as heavily in evaluation of its past performance.

The GAO found that “‘the Navy reasonably concluded that

MLS’s past performance offered a clear advantage over

the past performance of GDMA, and the Navy reasonably

documented its decision to select MLS over GDMA for this

reason.”’ Id. at 556 (quoting In re Glenn Defense Marine-

Asia PTE, Ltd., B-402687.6; B-402687.7, 2011 WL

6947628, at *8 (Comp. Gen. Oct. 13, 2011) (“GAO Deci-

10 GLENN DEFENSE MARINE v. US

sion”)). GAO denied the protest. GDMA then filed its bid

protest with the Court of Federal Claims. The Court of

Federal Claims denied GDMA’s motion for judgment on

the administrative record and request for injunctive relief

and granted the Navy and MLS’s motion for judgment on

the administrative record. GDMA timely appealed to this

court, which has jurisdiction under 28 U.S.C. § 1295(a)(3).

DISCUSSION

We review the grant of a motion for judgment upon

the administrative record in bid protest actions de novo.

Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324,

1329 (Fed. Cir. 2004). In a bid protest case, the inquiry is

whether the agency’s action was arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law and, if so, whether the error is prejudicial. 28 U.S.C.

§1491(b)(4) (adopting the standard of 5 U.S.C. § 706); see

Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.

Cir. 2005). “The court’s task is to determine whether ‘(1)

the procurement official’s decision lacked a rational basis;

or (2) the procurement procedure involved a violation of

regulation or procedure.’” Savantage Fin. Servs., Inc. v.

United States, 595 F.3d 1282, 1285-86 (Fed. Cir. 2010)

(quoting Weeks Marine, Inc. v. United States, 575 F.3d

1352, 1358 (Fed. Cir. 2009)). “The arbitrary and capri-

cious standard applicable [in bid protests] is highly defer-

ential.” Advanced Data Concepts, Inc. v. United States,

216 F.3d 1054, 1058 (Fed. Cir. 2000).

Contracting officers “are entitled to exercise discretion

upon a broad range of issues confronting them in the

procurement process.” Impresa Construzioni Geom. Do-

menico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.

Cir. 2001) (internal quotation marks and citation omit-

ted). De minimis errors in the procurement process do not

justify relief. Grumman Data Sys. Corp. v. Dalton, 88

F.3d 990, 1000 (Fed. Cir. 1996). The protestor bears the

burden of proving that a significant error marred the

procurement in question. Id. The protestor’s burden is

greater in negotiated procurement, as here, than in other

GLENN DEFENSE MARINE v. US 11

types of bid protests because “‘the contracting officer is

entrusted with a relatively high degree of discretion.’”

Galen, 369 F.3d at 1330 (quoting Burroughs Corp. v.

United States, 617 F.2d 590, 597 (Ct. Cl. 1980)). “[T]he

greater the discretion granted to a contracting officer, the

more difficult it will be to prove the decision was arbitrary

and capricious.” Burroughs, 617 F.2d at 597. Moreover,

this court accords contracting officers an even greater

degree of discretion when the award is determined based

on the best value to the agency. E.W. Bliss Co. v. United

States, 77 F.3d 445, 449 (Fed. Cir. 1996). Ultimately, to

prevail in a bid protest, the protestor must show prejudi-

cial error. Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562

(Fed. Cir. 1996).

GDMA argues that the Navy’s best value determina-

tion and award of the Region 1 contract to MLS was

arbitrary and capricious due to its reliance upon the

Evaluation Team’s flawed evaluation of GDMA and MLS.

GDMA asserts that the Navy’s rating of GDMA’s past

performance as “Less than Satisfactory” and its rating of

MLS’s past performance as “Better” both lacked rational

bases and were inconsistent with the record evidence. In

addition, GDMA asserts that the Court of Federal Claims

misapplied the standard for determining prejudice. We

address each argument in turn.

I. The Navy’s Best Value Determination Was Not

Arbitrary And Capricious

“Procurement officials have substantial discretion to

determine which proposal represents the best value for

the government.” E.W. Bliss, 77 F.3d at 449. In this case,

the Navy’s best value decision is supported by the record

and well within the substantial discretion of the contract-

ing officials. After considering all of the offerors’ pro-

posals, references, and corrective actions, the Navy

reasonably determined that an award to MLS would

provide the best value. In particular, the Navy reasona-

bly compared the negative comments in GDMA’s relevant

references and GDMA’s inadequate corrective action to

12 GLENN DEFENSE MARINE v. US

the reviews of MLS, which contained no negative feed-

back. The contracting officer determined that although

there was a price difference between GDMA’s final pro-

posal and MLS’s final proposal, MLS had superior past

performance and would ultimately provide the best value

to the Navy. This was consistent with the Solicitation,

which expressly stated that non-price factors were signifi-

cantly more important than price. Even considering

price, the contracting officer reasonably found the real

cost to the Navy might actually be higher if the award

went to GDMA because of increased administration costs

resulting from GDMA’s documented non-responsiveness

in communications, late estimates, etc. 5 Based on the

record and recognizing the broad discretion courts afford

agencies in the negotiated procurement process, the

Navy’s best value determination was not arbitrary, capri-

cious, or in violation of law.

5 GDMA contends that the trade-off analysis does

not explain why an award to GDMA over MLS would

require enhanced contract oversight and management.

However, the primary contracting officer explained that

the increased costs may be necessary to mitigate risks

expected based upon GDMA’s past performance. Due to

GDMA’s documented lack of responsiveness, the primary

contracting officer deduced that a contract with GDMA

would require additional contract administration costs

from a recurring need for contracting officials to follow-up

with GDMA on material issues such as late pre-port cost

estimates, lack of response to correspondence, and pricing

issues. The primary contracting officer based his projec-

tion of future increased contract administration costs on

the follow-up needed with GDMA in the past. The prima-

ry contracting officer adequately explained the factors

considered.

GLENN DEFENSE MARINE v. US 13

II. GDMA’s Past Performance Evaluation Did Not

Lack Rational Basis

GDMA argues that the Navy’s past performance rat-

ing of “Less than Satisfactory” is inconsistent with the

record evidence because the references upon which the

Evaluation Team relied all rated GDMA’s overall perfor-

mance as “Satisfactory” or better. However, GDMA cites

no reason why the Navy should have only considered the

overall ratings and disregarded the subfactor ratings and

narrative comments. The Navy’s decision was rationally

based on its evaluation of all of the evidence before it.

Even though each reference rated GDMA’s performance

as “Satisfactory” or “Better” overall, the narrative com-

ments detracted from those ratings. The Navy reasonably

considered the entire record, including several “Less than

Satisfactory” subfactor ratings and negative comments

from the narrative portion of the questionnaires. 6 The

6 The dissent cites to the overall and subfactor rat-

ings as if these adjectival ratings can be added up and

“averaged out” to score the contractor. Dissent Op. 3-4.

However, these reports are not subject to a mathematical

calculation. The Evaluation Team considered the adjec-

tival ratings in light of the accompanying narrative

comments, which was within their discretion. E.W. Bliss,

77 F.3d at 449 (discussing the substantial discretion with

which procurement officials are entrusted to find the best

value for the government). Moreover, notwithstanding

the single positive comment the dissent cites, Dissent Op.

at 3–4, the reviewer also noted that GDMA’s “prices for

the non-contract are rather high and attempt to negotiate

the cost seem pointless.” J.A. 611. Additionally, she

commented that there were “[n]o major issues under the

purview of this contract except the DAO Representative

in India complained about their services during the USS

Shiloh and USS Lassen visit to GOA in Apr 10. He com-

plained about GDMA’s inability to provide pier side force

protection services utilizing containers. The pier area

14 GLENN DEFENSE MARINE v. US

evaluation Team’s report stated that “[o]verall, [GDMA]

was less than fully cooperative and did not demonstrate a

commitment to service.” Glenn Defense Marine, 105 Fed.

Cl. at 554 (internal quotation marks omitted). The pri-

mary contracting officer observed that the majority of

GDMA’s re-visit estimates for port visits were received

late and repeatedly required corrections. He also indicat-

ed that GDMA had failed to provide force protection

barriers as specified by the ships in their order. In anoth-

er instance, GDMA failed to provide a pricing plan, which

was necessary to insure that non-priced items were fairly

and reasonably priced. Finally, the primary contracting

officer noted routine delays in GDMA’s responses to

questions, which “exacerbate[d] the short lead time for

arranging port visit services.” Id. at 566 (internal quota-

was not cordoned off appropriately.” Id. At any rate, our

role is not to search for statements that could support a

reversal, but rather, to determine whether there was a

rational basis for the Navy’s decision.

GLENN DEFENSE MARINE v. US 15

tion marks omitted). 7 The Evaluation Team’s final Sum-

mary Report for GDMA indicated:

7 The primary contracting officer’s notes stated:

1-6 of 9 pre-visit estimates for port visits cov-

ered by this contract from 27 OCT 09–present

were received late. In addition, the contract spe-

cialists at FISC Det. Singapore routinely have to

request corrections to the PCEs received for port

visits (e.g. not all items requested in the LOGREQ

[logistical requirements] are included in the PCE

[pre-visit cost estimates]).

2-A negative past performance letter regard-

ing the USS LASSEN and USS Shiloh port visits

to Goa, India was sent to GDMA on 6 July 10.

GDMA did not provide force protection barriers as

specified by the ships in their ordering LOGREQs.

A complaint from State Department personnel in

Goa led to the issuance of this past performance

letter.

3-A negative past performance letter regard-

ing performance under this contract was sent to

GDMA on 14 JUN 10. GDMA has not provided a

proposed pricing plan for insuring that non-priced

items are offered at fair and reasonable prices.

This pricing plan is a deliverable specified under

this contract. Fair and reasonable pricing for non-

priced items is an unresolved issue under this

contract. The FISC Det. Singapore office has yet

to receive competitive price quotations for any

non-priced services provided under this contract.

16 GLENN DEFENSE MARINE v. US

For Region 1, [GDMA’s] past performance on pre-

viously awarded relevant contracts did not meet

some significant requirements. Although the offe-

ror was generally responsive to changes in re-

quirements, provided timely services and had

reasonably good control over managing subcon-

tractors, there were several noted deficiencies in

its performance when it came to the reliability

and consistency of its customer service practices,

transparency in pricing and ease of communica-

tions.

Id. at 554.

Moreover, the Navy’s rating was not premised on

these references alone. Before the Navy’s final rating, the

Navy gave GDMA an opportunity to respond to specific

concerns. GDMA acknowledged those issues and ex-

plained it had taken or was in the process of taking cor-

rective action. The Navy conducted a follow-up review

and found that these corrective actions had not adequate-

ly addressed its concerns. In considering GDMA’s correc-

tive action in response to the negative reviews, the

reviewer found GDMA’s corrective action “lacked suffi-

cient details for the [Evaluation Team] to determine the

offeror’s effectiveness in addressing the deficiencies.” Id.

In sum, GDMA’s past performance record led the Evalua-

tion Team “‘to expect marginal customer satisfaction and

less than fully successful performance.’” Id. (quoting the

Evaluation Team’s Summary Report).

4-Email responses from GDMA representa-

tives to questions from the FISC Det. Singapore

contract specialists are routinely delayed. The de-

layed responses exacerbate the short lead time for

arranging port visit services.

Glenn Defense Marine, 105 Fed. Cl. at 566.

GLENN DEFENSE MARINE v. US 17

Based upon the broad discretion courts afford agen-

cies in the procurement process and based upon the

ratings and comments in the past performance question-

naires, the analysis and review performed by the Evalua-

tion Team and the contracting officer, as well as the

discussions between GDMA and the Navy, this court

cannot conclude that the overall past performance rating

of “Less than Satisfactory” lacked rational basis. The

Navy established a rational basis for its decision, explain-

ing that a higher rating was not substantiated by the

comments, and the agency’s reasonable interpretation of

the facts is entitled to considerable deference.

III. MLS’s Past Performance Evaluation Did Not Lack

Rational Basis

GDMA asserts that the Navy’s rating of MLS’s past

performance as “Better” was arbitrary and capricious on

the grounds that the “underlying finding” that the con-

tracts of MLS’s subcontractors were highly relevant lacks

a rational basis. GDMA asserts that the Evaluation

Team could not provide a rational basis for finding the

contracts performed by MLS’s subcontractors were of

similar scope, magnitude, and complexity to that in the

Solicitation because the record is incomplete.

The Solicitation stated that “[p]ast [p]erformance is a

measure of the degree to which an offeror satisfied its

customers in the past by performing its contractual obli-

gations on relevant directly related contracts and subcon-

tracts . . . that are similar in scope, magnitude, and

complexity to that required by the solicitation. . . .” Solici-

tation ¶ OP-1.8.2.1. It also stated that “[i]n the case of an

offeror whose past performance is somehow not similar in

scope, complexity, or magnitude, or otherwise lacks rele-

vance to some degree then the Government will take this

into consideration and evaluate accordingly . . ..” Id. ¶ OP-

1.8.2.4.

MLS’s subcontracts involved husbanding services at

many of the same ports covered by the Solicitation, for a

18 GLENN DEFENSE MARINE v. US

variety of vessels of various sizes that “‘spend the majori-

ty of their useful life traveling from port to port,’” similar

to the services required by this Solicitation. Glenn Defense

Marine, 105 Fed. Cl. at 575 (quoting GAO Decision at *8).

The Navy’s determination of relevance is owed deference

as it is among “the minutiae of the procurement process,”

which this court “will not second guess.” E.W. Bliss, 77

F.3d at 449 (finding matters such “as technical ratings

and the timing of various steps in the procurement” to

involve discretionary determinations); see also Linc Gov’t

Servs., LLC v. United States, 96 Fed. Cl. 672, 718 (2010)

(“Thus, when evaluating an offeror’s past performance,

the [Source Selection Authority] may give unequal weight,

or no weight at all, to different contracts when the [Source

Selection Authority] views one as more relevant than

another.”) (internal quotation marks and citations omit-

ted); PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520,

539 (2010) (“At the outset, it is important to note that

what does or does not constitute ‘relevant’ past perfor-

mance falls within the [Source Selection Authority’s]

considered discretion.”).

Additionally, the Court of Federal Claims noted that

there is no evidence that MLS’s past performance would

have been evaluated any lower than “Better” if the sub-

contractors’ references were given less weight. The

Evaluation Team’s summary report indicated that:

The offeror was very responsive to customer ser-

vice issues, provided timely services, flexible when

responding to changes in requirements, main-

tained control over managing subcontractors, was

transparent in its pricing processes and was effec-

tive in communications. Overall, the offeror was

very cooperative and demonstrated a commitment

to customer service. There were no substantiated

problems or issues documented in this past per-

formance assessment. Therefore, based upon the

offeror’s past performance record, it leads the

GLENN DEFENSE MARINE v. US 19

[Evaluation Team] to expect a strong customer

satisfaction and fully successful performance.

Glenn Defense Marine, 105 Fed. Cl. at 555 (quoting the

Evaluation Team’s Summary Report). 8 Accordingly, the

Court of Federal Claims’ determination did not lack

rational basis.

IV. GDMA Did Not Allege Prejudicial Error

If GDMA had prevailed in showing error in the award

to MLS, it would also bear the burden of showing that

error was prejudicial. As discussed above, the Navy’s past

performance evaluations were rationally based. Moreo-

8 GDMA also argues that the Court of Federal

Claims improperly relied on the Navy’s submissions to

GAO, which it argues are post hoc rationalizations, to

support its decision. The Navy’s submissions to the GAO

were those required by 31 U.S.C. § 3553(b)(2), and includ-

ed an articulation of the agency’s reasoning in response to

the protest. All of the materials submitted to the GAO

are part of the administrative record before the Court of

Federal Claims. 31 U.S.C. § 3556. In a case involving a

post-award conflict of interest investigation and analysis,

this court noted that courts “reviewing bid protests rou-

tinely consider . . . evidence developed in response to a bid

protest.” Turner Constr. Co. v. United States, 645 F.3d

1377, 1386 (Fed. Cir. 2011). The Court of Federal Claims

cited these submissions to support its finding that the

subcontractors’ references were highly relevant because

they required services that were “similar in scope, magni-

tude, and complexity.” Glenn Defense Marine, 105 Fed. Cl.

at 573–74 (internal quotation marks omitted). Even if the

submissions were not appropriately considered, based

upon the high ratings on all of the references and only

positive comments, the Navy’s rating of MLS’s past per-

formance does not lack a rational basis.

20 GLENN DEFENSE MARINE v. US

ver, the Court of Federal Claims was correct in finding

that GDMA was not prejudiced by receiving a “Less than

Satisfactory” rating, as opposed to a “Satisfactory” rating.

To prevail in a bid protest case, the protestor must

show that it was prejudiced by the government’s actions.

Bannum, 404 F.3d at 1351. To establish prejudice, GDMA

must show that there was a substantial chance it would

have received the contract award but for the Navy’s

allegedly erroneous past performance rating. See id. at

1358; Allied Tech. Grp., Inc. v. United States, 649 F.3d

1320, 1326 (Fed. Cir. 2011); Statistica, Inc. v. Christopher,

102 F.3d 1577, 1582 (Fed. Cir. 1996). Unlike other issues

in this case, prejudice is a question of fact that this court

reviews for clear error. Bannum, 404 F.3d at 1353–54.

The Court of Federal Claims found that even if

GDMA should have gotten a “Satisfactory” rating instead

of “Less than Satisfactory” for past performance “it is not

at all clear a trade-off analysis would have resulted in

[GDMA] receiving the contract award.” Glenn Defense

Marine, 105 Fed. Cl. at 572. The court explained: “Even

with a Satisfactory rating for past performance, [GDMA]

still would have had an inferior past performance rating

as compared to MLS, and still would have had negative

past performance comments in the record, which [GDMA]

did not challenge.” Id. at 571. GDMA does not provide

anything but conjecture that even with a “Satisfactory”

rating it would have had a substantial chance of prevail-

GLENN DEFENSE MARINE v. US 21

ing in the bid. 9 The Court of Federal Claims did not

clearly err in finding GDMA had not shown prejudice

from being rated “Less than Satisfactory” rather than

“Satisfactory.”

CONCLUSION

Accordingly, the Court of Federal Claims’ decision is

affirmed.

AFFIRMED

9 GDMA asserts that the court erred in “[r]equiring

GDMA to establish that it is ‘clear’ that a trade-off analy-

sis would have resulted in GDMA receiving [an] award.”

Appellant’s Br. at 64. Contrary to GMDA’s argument, the

Court of Federal Claims did not require it to show it

would ‘clearly’ have received the contract award but for

the alleged error. Rather, the Court of Federal Claims

stated that “it is not at all clear” that GDMA would have

received the contract award but for the past performance

rating. It thoroughly recited the “substantial chance”

standard in its standard of review section, see Glenn

Defense Marine, 105 Fed. Cl. at 558-59, and applied that

standard in its analysis of the facts.

United States Court of Appeals

for the Federal Circuit

______________________

GLENN DEFENSE MARINE (ASIA), PTE LTD.,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee,

AND

MLS-MULTINATIONAL LOGISTIC SERVICES LTD,

Defendant-Appellee.

______________________

2012-5125

______________________

Appeal from the United States Court of Federal

Claims in No. 11-CV-718, Judge Marian Blank Horn.

______________________

MOORE, Circuit Judge, dissenting.

The majority in this case affirms the decision by the

Court of Federal Claims granting judgment on the admin-

istrative record in favor of the government. I dissent

because the court erred by concluding that the U.S. Navy

had a rational basis for finding that Glenn Defense Ma-

rine (Asia), PTE Ltd. (GDMA) deserved an overall rating

of “Less than Satisfactory” for its past performance. That

rating lacks a rational basis, both legally and mathemati-

cally. All of GDMA’s references rated its past perfor-

mance as “Outstanding,” “Better,” or “Satisfactory.”

2 GLENN DEFENSE MARINE v. US

As part of the U.S. Navy’s process of awarding a con-

tract for maritime husbanding services in the South Asia

region, a Past Performance Evaluation Team (PPET)

evaluated the offerors’ past performance. The PPET was

instructed to use adjectival ratings: “Outstanding,” “Bet-

ter,” “Satisfactory,” “Less than Satisfactory,” or “Neutral.”

Four of GDMA’s references provided feedback regard-

ing its past performance. The PPET determined that one

of the prior contracts, the South Asia contract, was highly

relevant to the contract at issue while the other three

were moderately relevant. Of the moderately relevant

contracts, two reviewers rated GDMA as “Outstanding”

while the third gave it a rating of “Better.” The reviewer

for the highly relevant contract rated GDMA as “Better.”

The PPET received a second questionnaire regarding the

South Asia contract from the contracting officer, who

rated GDMA as “Satisfactory.” The chart below summa-

rizes the references’ overall ratings of GDMA’s past

performance.

Reference Overall Rating

South Asia Contract

First Reference Better

Second Reference Satisfactory

Thailand Contract Better

Singapore Contract Outstanding

BIMET Contract Outstanding

Despite these high past performance ratings, the

PPET gave GDMA an overall past performance rating of

“Satisfactory.” This seems inconsistent with the ratings

themselves. Even more perplexingly, based on no new or

GLENN DEFENSE MARINE v. US 3

additional information, the PPET later revised GDMA’s

past performance rating downward to “Less than Satis-

factory.” The purported basis for such a low rating was

negative comments that some of GDMA’s references

included in the past performance questionnaires they

submitted. GDMA’s references, however, did not them-

selves believe that their own negative comments warrant-

ed such a low rating. And GDMA’s references were

uniquely positioned to consider the appropriate impact to

give their own negative comments on GDMA’s overall

rating, given their interaction with GDMA over the course

of the contracts at issue. The PPET group, which decided

to give GDMA a less than satisfactory rating, based their

decision exclusively on these references; they had no

additional or independent information which would

warrant lowering the ratings. GDMA received two “Out-

standing,” two “Better,” and one “Satisfactory” rating. In

what universe do these ratings average out to an overall

rating of “Less than Satisfactory”? The Navy lacked a

rational basis for giving GDMA a lower rating than any of

the company’s references and for weighing the negative

comments on the questionnaires far more heavily than

the references themselves did.

It is important to understand that each of these re-

views had an overall past performance rating, nine sub-

category ratings, and a section for comments. It is true

that one of the two reviewers for the South Asia contract

listed a number of problems that he encountered with

GDMA in the performance of the contract. Even this

reviewer, who rated GDMA “Satisfactory” overall, gave

GDMA one “Better,” four “Satisfactory,” and four “Less

than Satisfactory” subcategory ratings. And the primary

reviewer for the South Asia contract, who gave GDMA a

“Better” overall rating for the same contract, gave GDMA

four “Outstanding,” four “Better,” and one “Satisfactory”

rating for the same nine subcategory rating criteria. This

reviewer noted in her comments some of the same prob-

lems, but also included positive comments such as, “[t]hey

are very professional and their staff are very knowledgea-

4 GLENN DEFENSE MARINE v. US

ble and experience[d].” She further explained that, “[t]he

ports in South Asia ha[ve] limited infrastructure and

GDMA has the ability to support a carrier visit to Chen-

nai with limited services available.” In the other three

contracts, there were a total of twelve “Outstanding,” six

“Better,” and one “Satisfactory” subcategory rating. In

light of this record, PPET did not have a rational basis for

rating GDMA “Less than Satisfactory” overall for past

performance.

PPET did its own cumulative version of the nine sub-

category rating criteria, and its conclusions regarding the

subcategories seem just as divorced from the underlying

data as the overall ratings. For example, the PPET gave

GDMA an overall rating of “Satisfactory” for the subfactor

“Reliability and consistency of the company’s key person-

nel.” The individual ratings for this subfactor, however,

were three “Outstanding” ratings, one “Better,” and one

“Satisfactory.” Similarly, for the subfactor of “Timeliness

in providing goods and/or services in accordance with the

contract schedule,” the PPET rated GDMA as “Satisfacto-

ry” even though GDMA’s references gave it three “Out-

standing” ratings, one “Better,” and one “Satisfactory.”

GDMA’s past performance was not flawless, as the

ratings clearly reflect. Certainly this record would have

supported a past performance rating of “Better” or maybe

even “Satisfactory,” but there is no rational basis for

PPET’s decision to rate GDMA “Less than Satisfactory.”

GDMA was one of only two bidders in the competitive

range, and its price was roughly 64% lower than the other

bidder. GDMA was rated equal to the other bidder on

every factor except past performance, where the other

bidder received a rating of “Better.” Based on GDMA’s

lower price and equivalency in other areas, I believe that

it would have had a substantial chance to receive the

contract but for the Navy’s errors regarding past perfor-

mance. See Bannum, Inc. v. United States, 404 F.3d 1346,

1351 (Fed. Cir. 2005). Therefore, I dissent.