Digiflight, Inc. v. United States

In the United States Court of Federal Claims

No. 22-1521 C

Filed Under Seal: March 31, 2023

Reissued: April 19, 2023 *

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DIGIFLIGHT, INC., *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant, *

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and *

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THE TOLLIVER GROUP, INC., *

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Defendant-Intervenor. *

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Roderic G. Steakley, Dentons Sirote, PC, with whom were Benjamin R. Little, Dentons

Sirote, PC, of Huntsville, AL, and Jerome S. Gabig, Gabig Law Firm, of Guntersville, AL, for

Plaintiff.

Christopher L. Harlow, Trial Attorney, Commercial Litigation Branch, Civil Division,

Department of Justice, with whom were Douglas K. Mickle, Assistant Director, Patricia M.

McCarthy, Director, and Brian M. Boynton, Principal Deputy Assistant Attorney General, all of

Washington, D.C., for Defendant, and Major Brittney N. Montgomery, Trial Attorney, Legal

Service Agency, United States Army, of Fort Belvoir, VA, of counsel.

W. Brad English, Maynard, Cooper & Gale, PC, with whom were Jon D. Levin, Emily J.

Chancey, and Nicholas P. Greer, Maynard, Cooper & Gale, PC, all of Huntsville, AL, for

Defendant-Intervenor.

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Pursuant to the protective order entered in this case, this opinion was filed initially under seal.

The parties provided proposed redactions of confidential or proprietary information, which are redacted in

this version of the opinion. In addition, the Court made minor typographical and stylistic corrections.

OPINION AND ORDER

SOMERS, Judge.

On October 14, 2022, Plaintiff, DigiFlight, Inc., filed a complaint in this Court protesting

the award of a task order to Defendant-Intervenor, The Tolliver Group, Inc., pursuant to Task

Order Request for Quotations 2020P-03 (“RFQ”), for programmatic support for the United

States Army Aviation and Missile Command (“AMCOM”). For the reasons that follow, the

Court has determined that the Army, in evaluating quotations, committed prejudicial errors in

conducting the price realism analysis it obligated itself to perform by the terms of the RFQ and

in evaluating quotations under the technical expertise factor. Accordingly, for those counts of

Plaintiff’s complaint for which it has standing, Plaintiff is entitled to judgment on the

administrative record, and Plaintiff’s request for a permanent injunction is granted.

BACKGROUND

A. The Solicitation

On December 1, 2021, the Army issued the RFQ seeking programmatic support services

for AMCOM, including: “resource management; cost estimating/analysis and budget

preparation; program management, plans, and integration; schedule development and

assessment; systems analysis; strategic planning; risk analysis; and risk mitigation to the various

offices and staffs within AMCOM.” AR 112. The RFQ was conducted as a total small business

set-aside, and exclusive to vendors who already had EXPRESS Blanket Purchase Agreements

(“BPAs”) with the General Services Administration (“GSA”). AR 113. Furthermore, the

solicitation explicitly stated that it was a FAR subpart 8.4 procurement and “not a FAR Part 15

negotiated competition.” AR 115.

According to the RFQ, the award would be made to the offeror “whose quotation

provide[d] the best value to the Government . . . .” AR 123. It stated three evaluation criteria:

Technical Expertise, Risk Mitigation and Management, and Price. AR 123–26. In addition, it

detailed how the three factors would be weighed in relation to each other:

The first two criteria, Technical Expertise, and Risk Mitigation and Management,

are of equal importance, and each of them is of greater importance than Price. Price

is not expected to be the controlling criterion in the selection, but its importance

will increase as the differences between the evaluation results for the other criteria

decrease.

AR 123.

In addition, the RFQ described how each criterion would be evaluated, respectively. As

to both Technical Expertise and Risk Mitigation and Management, the RFQ stated that ratings

would be “based on how well the quotation demonstrates a clear understanding of the

requirements and deliverables, and on the Offeror’s expressed ability to successfully perform.”

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AR 124. The RFQ specified four possible ratings, and included charts describing the standard

associated with each rating level as summarized below:

Technical Expertise/Risk Mitigation and Management Ratings

Rating Description

Outstanding Quotation meets requirements and indicates an exceptional level of

expertise and an understanding of the requirements. Strengths far

outweigh any weaknesses. Risk of unsuccessful performance is very low.

Good Quotation meets requirements and indicates a thorough level of expertise

and an understanding of the requirements. Strengths outweigh any

weaknesses. Risk of unsuccessful performance is low.

Acceptable Quotation meets requirements and indicates an adequate level of expertise

and an understanding of the requirements. Strengths and Weaknesses are

offsetting or will have little or no impact on contract performance. Risk of

unsuccessful performance is moderate.

Unacceptable Quotation does not meet requirements and contains one or more

deficiencies. If this criterion is rated as Unacceptable, additional factors

will not be evaluated and the quotation is not eligible for award.

See AR 124–26.

Specifically with regard to the Technical Expertise, the RFQ stated that a quotation “will

be evaluated based on the degree to which it thoroughly demonstrates the Offeror understands

the services to be delivered in order to meet the requirements of the [Performance Work

Statement (“PWS”)] and the Offeror’s ability to perform those services.” AR 124. Moreover,

“[w]hile award of this task order will require the Offeror to perform all of the PWS requirements,

the Government considers the requirements in the following PWS paragraphs 3.1.3, 3.1.10,

3.1.11, 3.1.14, 3.1.15, 3.1.16, 3.1.17, 3.2.2, and 3.2.3 to be critical to evaluation of the Offeror’s

technical expertise.” Id. (emphasis omitted). Accordingly, the RFQ insisted that these

requirements “be specifically addressed in the quotation.” Id.

Finally, as to Price, the RFQ provided that “[t]he Government will use price analysis to

determine the overall price reasonableness,” AR 126, and that

[t]he government will assess the price quotation to ensure the proposed pricing is

realistic for the work to be performed, reflects a clear understanding of the

requirements, and is consistent with the various elements of the other parts of the

quotation. Unrealistic pricing will not be adjusted by the Government in its

evaluations, but it reserves the right to reject a quotation upon a determination that

a price is unrealistically low. All direct labor hours, skill mix, and labor categories

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in the Price Quotation must be consistent with the technical expertise and Risk

Mitigation & Management portion of the quotation.

AR 127.

B. Award Decision

On January 31, 2022, three BPA holders submitted quotations in response to the RFQ:

Plaintiff, Tolliver, and . AR 476. On September

29, 2022, the Army informed the offerors that it had awarded the task order to Tolliver. AR 562.

In its evaluation, the Army purported to assess each quotation for Technical Expertise, Risk

Mitigation and Management, and Price, and summarized the results using the following charts:

DigiFlight EVALUATION RESULTS:

FACTORS DigiFlight

Technical Expertise Acceptable

Risk Mitigation and Management Good

Price

AR 562;

[Tolliver] EVALUATION RESULTS:

FACTORS TTGI

Technical Expertise Acceptable

Risk Mitigation and Management Acceptable

Price $43,794,113.06

AR 567;

EVALUATION RESULTS:

FACTORS

Technical Expertise Acceptable

Risk Mitigation and Management Acceptable

Price

AR 573.

With regard to Technical Expertise, none of the three offerors received a single strength,

weakness, or deficiency. See AR 562, 567, 573. As to Risk Mitigation and Management,

Plaintiff received a single strength for “[b]ringing together the right team to perform the PWS

requirements,” and no weaknesses or deficiencies. AR 563. Both Tolliver and received no

strengths, weaknesses, or deficiencies for this factor. AR 569, 574.

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As to Price, the evaluators “reviewed the pricing received in response to th[e] solicitation

to determine price reasonableness.” AR 488. To do so, the evaluators compared the

Independent Government Cost Estimate (“IGCE”) rates to the prices proposed by the offerors.

AR 486. The IGCE rates are “based on historical labor rates,” and “represent the maximum

rates, which incorporate national prices and industry wide concern.” AR 488. The rates

submitted by the offerors were discounted, which was allowable under the terms of the RFQ.

Id. 1 The evaluators summarized their findings as follows:

[i]n conducting the price evaluation, the government assessed the price quotation

to ensure the proposed pricing is realistic for the work to be performed, reflects a

clear understanding of the requirements, and is consistent with the various elements

of the other parts of the quotation. The Contracting Officer reviewed the Offerors’

labor categories, skill mix, and hours and found that all three Offerors proposed the

appropriate education/experience levels in accordance with EXPRESS Labor

Categories: Minimum Requirements Listing. DigiFlight, and [Tolliver] all

proposed labor hours that are consistent with the TORFQ. The Offerors’ Task

Order/Rate Table rates were evaluated to ensure that they were equal to or less than

the established [GSA] rates. Since the TORFQ allowed Offerors to propose

discounts, all Offerors provided discounts from their negotiated GSA schedule.

The Government took no exceptions or issues to the Offerors’ proposed pricing and

found all three to be realistic for the work to be performed. Additionally, all three

Offerors reflect a clear understanding of the requirements.

AR 489.

In addition, the evaluators had the following to say regarding their price realism analysis:

[i]n further evaluating for price realism, the Government compared the two lowest

composite rates offered by and [Tolliver]. While both companies offered

composite rates well below the IGCE composite rates, the Government found that

multiple companies offering low composite rates suggested there was no evidence

of an attempt to offer unrealistically low prices as a strategy to receive the award.

Since DigiFlight offered a composite rate far higher than the two lowest Offerors,

it was determined that DigiFlight did not offer an unrealistically low price for the

purpose of receiving award either. Further, the Government used the GSA Contract

Awarded Labor Categories (CALC) tool to substantiate a random sample of labor

category prices offered by all three Offerors. All offered labor category prices were

well within the acceptable range. Based upon this analysis, the Government

determined that all Offerors’ prices are realistic.

Id.

The evaluators also assessed the labor mix for all three bidders, using exactly the same

language to summarize each respective evaluation:

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Despite the RFQ clearly requiring a price realism analysis, the evaluators still stated that “the

TORFQ does not limit the amount of discount an offeror may propose.” AR 488.

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A review of the basis of estimate was done and the level of effort and mix of labor

proposed to perform the tasks outlined in the PWS reflects understanding of the

requirements, is consistent with the various elements of the other parts of the

quotation and is considered realistic to support the proposed approach at an

acceptable level of risk to the Government. Overall, [ DigiFlight/Tolliver]’s

[Basis of Estimate] appears appropriate and reasonable to perform the tasks

outlined in the PWS.

AR 489–90.

The Army then conducted a trade-off analysis by balancing the Technical Expertise

ratings, the Risk Mitigation and Management factor ratings, and Price. Because the Technical

Expertise ratings were all the same and Plaintiff—despite its one strength in the Risk Mitigation

and Management factor—was more costly than Tolliver, “the Contracting Officer determined

that [Tolliver] provide[d] the best-value to the Government.” See AR 495–96.

DISCUSSION

A. Jurisdiction and Standing

The Tucker Act, as amended by the Administrative Dispute Resolution Act, provides the

Court with “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.” 28 U.S.C. § 1491(b)(1). In order to come

within this jurisdictional grant, a protestor must demonstrate that it has standing. Castle v.

United States, 301 F.3d 1328, 1337 (Fed. Cir. 2002) (“Standing is a threshold jurisdictional

issue, which . . . may be decided without addressing the merits of a determination.”); see also

Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (“The party invoking federal jurisdiction

bears the burden of establishing [the] elements [of standing].”). To establish standing in a bid

protest case, the protestor must show that it is an “interested party” under 28 U.S.C.

§ 1491(b)(1), “which . . . imposes more stringent standing requirements than Article III.” Weeks

Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009). Under § 1491(b)(1), a party

must show 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). In a

post-award bid protest, an offeror has a “direct economic interest” if it can demonstrate that

“there was a ‘substantial chance’ it would have received the contract award but for the alleged

error in the procurement process.” Info. Tech. & Applications Corp. v. United States, 316 F.3d

1312, 1319 (Fed. Cir. 2003).

In addition, while neither the government nor the Defendant-Intervenor have directly

challenged Plaintiffs’ standing to bring the instant protest, the Court has an independent duty to

ensure that it has jurisdiction over the matter. Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010)

(“Courts have an independent obligation to determine whether subject-matter jurisdiction exists,

even when no party challenges it.”) (citing cases); see also Rule 12(h)(3) of the Rules of the

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United States Court of Federal Claims. Plaintiff is clearly an actual bidder in this procurement.

However, whether Plaintiff has established a “direct economic interest” in the resolution of each

error it alleges shall be assessed with respect to each individual claim. 2

B. Legal Standard

If a protestor establishes that it has standing, this Court has authority to review the

agency’s decision under the standards set forth in the Administrative Procedure Act (“APA”).

28 U.S.C. § 1491(b)(4); see also 5 U.S.C. § 706. The Federal Circuit has defined a two-part test

to determine the merits of a bid protest under the APA standard. Bannum, Inc. v. United States,

404 F.3d 1346, 1351 (Fed. Cir. 2005). First, the protestor is required to show that the agency

action in question is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” 5 U.S.C. § 706(2)(A). Accordingly, this prong of the test is satisfied if either “the

procurement official’s decision lacked a rational basis” or “the procurement procedure involved

a violation of regulation or procedure.” WellPoint Mil. Care Corp. v. United States, 953 F.3d

1373, 1377 (Fed. Cir. 2020) (quoting Impresa Construzioni Geom. Domenico Garufi v. United

States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)). Second, “[t]o prevail in a bid protest, a protestor

must show a significant, prejudicial error in the procurement process.” Id. (quoting Alfa Laval

Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999)). To establish that it has

suffered a prejudicial error in a post-award protest, a plaintiff is “required to show that there was

a ‘substantial chance’ it would have received the contract award but for the [agency’s] errors in

the bid process.” Bannum, 404 F.3d at 1358 (citations omitted).

Moreover, in reviewing an agency’s procurement decisions, the Court’s task is not to

“substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, 401

U.S. 402, 416 (1971); see also Weeks Marine, Inc., 575 F.3d at 1368–69 (stating that under

“‘highly deferential’ rational basis review,” courts will “sustain an agency action ‘evincing

rational reasoning and consideration of relevant factors’” (quoting Advanced Data Concepts, Inc.

v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000))). Rather, the protestor “bears a heavy

burden,” and the agency is “entitled to exercise discretion upon a broad range of issues . . . .”

Impresa, 238 F.3d at 1332–33 (citations omitted). Nonetheless, the APA requires the Court to

intervene in cases in which agency action is unreasonable. “Not only must an agency’s decreed

result be within the scope of its lawful authority, but the process by which it reaches that result

must be logical and rational.” Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374

(1998) (citation omitted). “This standard requires that the agency not only have reached a sound

decision, but have articulated the reasons for that decision.” In re Sang Su Lee, 277 F.3d 1338,

1342 (Fed. Cir. 2002). Thus, the Court must use the evidence in the record to determine

“whether the decision was based on the relevant factors and whether there has been a clear error

of judgment.” Citizens to Pres. Overton Park, 401 U.S. at 416.

Finally, bid protests are generally decided on cross-motions for judgment on the

administrative record, pursuant to Rule 52.1 of the Rules of the United States Court of Federal

Claims, which requires the Court to “make factual findings from the record evidence as if it were

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The Court has determined that Plaintiff has failed to meet its burden to demonstrate it has

standing to protest two of the five counts in its complaint. The Court will specifically address the lack of

standing for these two counts below.

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conducting a trial on the record.” Bannum, 404 F.3d at 1354. “Unlike a motion for summary

judgment, a genuine dispute of material fact does not preclude a judgment on the administrative

record.” Id. at 1355–56. Therefore, in reviewing cross-motions for judgment on the

administrative record, “the court asks whether, given all the disputed and undisputed facts, a

party has met its burden of proof based on the evidence in the record.” Jordan Pond Co., LLC v.

United States, 115 Fed. Cl. 623, 630 (2014).

C. Analysis

1. The Agency’s Price Realism Analysis was Irrational

In general, a price realism analysis examines whether an offeror’s prices are

unrealistically low for the work to be performed. Thus, a price realism analysis is performed to

ensure that an offeror’s proposed prices are not so low that contract performance is put at risk or

that they evidence a lack of understanding of the solicitation’s requirements. Although the FAR

does not require an agency to conduct a price realism analysis in procurements for fixed-price

contracts, an agency may nonetheless obligate itself to perform one by the terms of its

solicitation. See ViON Corp. v. United States, 122 Fed. Cl. 559, 573 (2015) (holding that a

solicitation stating that “[t]he Government may reject any proposal that is . . . unreasonably high

or low in price when compared to Government estimates” was enough to “commit[] the agency

to conducting a price realism analysis”); Rotech Healthcare, Inc. v. United States, 121 Fed. Cl.

387, 404 (2015) (“[T]he only reason any consideration of realism is necessary is the language in

the RFP stating that unrealistically low offers may be eliminated.” (emphasis added)); FCN, Inc.

v. United States, 115 Fed. Cl. 335, 376 (2014) (“Because a price realism analysis was

contemplated by the Solicitation, one had to be conducted, as the Solicitation stated that

unrealistically low offers ‘may be considered unacceptable and rejected on that basis.’” (internal

citation omitted)). In conducting a realism analysis, including a price realism analysis, “agencies

enjoy wide latitude.” Agile Def., Inc. v. United States, 959 F.3d 1379, 1385–86 (Fed. Cir. 2020);

see also A-T Sols., Inc. v. United States, 122 Fed. Cl. 170, 180 (2015) (“As cost realism

determinations are within an agency’s sound discretion and expertise, the Court will not overturn

a cost realism determination unless the plaintiff demonstrates the absence of a rational basis for

the agency’s decision.” (internal quotation omitted)). 3 In other words, the methodology

employed in a price realism analysis is largely left to the discretion of the agency in instances in

which it does not commit itself to a particular methodology in the solicitation. Afghan Am. Army

Servs. Corp. v. United States, 90 Fed. Cl. 341, 358 (2009). However, whatever methodology the

agency chooses to employ must be reasonable. Westech Int’l, Inc. v. United States, 79 Fed. Cl.

272, 286 (2007) (“While an agency’s cost realism analysis need not have been performed with

‘impeccable rigor’ to be rational, the analysis must reflect that the agency considered the

information available and did not make ‘irrational assumptions or critical miscalculations.’”

(quoting OMV Med., Inc. v. United States, 219 F.3d 1337, 1344 (Fed. Cir. 2000)).

Here, the evaluation criteria in the RFQ clearly committed the agency to conduct a price

realism analysis: “[t]he government will assess the price quotation to ensure the proposed pricing

is realistic for the work to be performed, reflects a clear understanding of the requirements, and

3

Agile Defense and A-T Solutions both addressed cost realism, but the wide agency latitude

discussed in those cases is equally applicable in the price realism context.

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is consistent with the various elements of the other parts of the quotation.” AR 127. The agency

did not further commit itself to a specific methodology for conducting the analysis; therefore, it

enjoyed discretion in conducting a price realism analysis so long as it reasonably considered

whether the offerors’ proposed pricing: 1) was “realistic for the work to be performed”; 2)

“reflect[ed] a clear understanding of the requirements”; and 3) was “consistent with the various

elements of the other parts of the quotation.” Id. While the agency appears to have conducted a

rational price reasonableness analysis, as is explained below, its price realism analysis was not

conducted in a rational manner.

The agency’s price realism analysis, at least as documented in the administrative record,

essentially consisted of a set of conclusory and repetitive statements with very little explanation

or documentation of what, if anything, was actually done to complete this requirement. For

instance, the price evaluation section of the source selection decision, which intermixes both the

reasonableness and realism components, states that “[i]n conducting the price evaluation, the

government assessed the price quotation to ensure the proposed pricing is realistic for the work

to be performed, reflects a clear understanding of the requirements, and is consistent with the

various elements of the other parts of the quotation.” AR 489. Fair enough, but this statement

simply restates the requirements of the price realism analysis the agency committed itself to

conduct and then, in conclusory fashion, states the agency did in fact conduct such an analysis.

The analysis then reiterates this same conclusion, that “[t]he Government took no exceptions or

issues to the Offerors’ proposed pricing and found all three to be realistic for the work to be

performed. Additionally, all three Offerors reflect a clear understanding of the requirements.”

Id. The Court is left to wonder where the actual analysis is.

Reading on, the Court finally comes across some level of explanation as to why the

agency concluded that the offerors’ proposed prices were realistic. It appears that the realism

determination was based on three factors. First, “the Government compared the two lowest

composite rates offered by and [Tolliver],” and “found that multiple companies offering

low composite rates suggested there was no evidence of an attempt to offer unrealistically low

prices as a strategy to receive the award.” Id. Second, “the Government used the GSA Contract

Awarded Labor Categories (CALC) tool to substantiate a random sample of labor category

prices offered by all three Offerors,” and found that “[a]ll offered labor category prices were well

within the acceptable range.” Id. “Based upon this analysis, the Government determined that all

Offerors’ prices [we]re realistic.” Id. Finally, after concluding that “all Offerors’ prices [we]re

realistic[,]” the agency, explains (using identical language for all three offerors) that it also

examined the level of effort and mix of labor for all three offerors and concluded that the effort

and labor mix “proposed to perform the tasks outlined in the PWS reflects understanding of the

requirements, is consistent with the various elements of the other parts of the quotation and is

considered realistic to support the proposed approach at an acceptable level of risk to the

Government.” AR 489–91 (repeating the language verbatim for each offeror). As explained

below, the Court finds all three of these conclusions, at least to the extent they are documented in

the administrative record, to be unreasonable.

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a. The agency’s conclusion that two offerors would not propose unrealistically low

prices is irrational

In its MJAR, Plaintiff asks the Court to examine the reasonableness of the Army’s

conclusion that while both and Tolliver “offered composite rates well below the IGCE

composite rates, the Government found that multiple companies offering low composite rates

suggested there was no evidence of an attempt to offer unrealistically low prices as a strategy to

receive the award.” ECF No. 29 (“Pl.’s MJAR”) at 12 (citing AR 489). Plaintiff argues that this

conclusion from the Army’s source selection decision is “predicated on false logic.” Id. at 13.

Specifically, Plaintiff takes issue with the conclusion that it would be “inconceivable” that two

offerors would “offer unrealistically low prices as a strategy to receive the award.” Id.

According to Plaintiff, this line of reasoning “entirely failed to consider an important aspect of

the problem,” which is the possibility that “both Tolliver and proposed unrealistic prices.”

Id.

Although the Court is not in a position to determine whether the prices quoted by Tolliver

and were, in fact, unrealistically low, there is no doubt that the agency’s conclusion that

they were realistic was predicated on an irrational assumption. The conclusion that it would be

“inconceivable” that both Tolliver and would underbid a contract lacks any rational basis.

Surely, it is conceivable that two companies—competing for award—would have similar

motivations for lowering the price of their quotations, even to the point of offering unrealistically

low prices. Why is it that one company would bid an unrealistically low price (hence the whole

reason for a price realism analysis), but two offerors would not? Is it not possible that two

offerors could have underestimated the work required, not understood the requirements, or for

some reason saw some value in this contract that made it worth underbidding? There may be

some explanation for the agency’s conclusion that no two offerors would underbid a contract—

the Court cannot conceive of one—but to any extent there is, such an explanation is not found in

the administrative record. And, without any explanation in the administrative record as to why

this seemingly irrational conclusion is, in fact, rational in this case, the Court cannot find that this

conclusion is reasonable. This conclusion, therefore, does not support a finding that the agency

conducted a rational price realism analysis as was required by the RFQ.

Moreover, the Court must mention that the government entirely failed to respond to

Plaintiff’s argument on this point in its cross-motion, which constitutes waiver. See, e.g., Sarro

& Assocs., Inc. v. United States, 152 Fed. Cl. 44, 58 (2021) (“A party’s failure to raise an

argument in an opening or responsive brief constitutes waiver.”). When questioned about this by

the Court at oral argument, the government could only cite a case mentioned solely in its Reply

brief. Oral Argument at 6:30–14:20; see also ECF No. 38 (“Gov.’s Reply”) at 7 (citing Afghan

Am. Army Servs. Corp., 90 Fed. Cl. at 358). That case—Afghan American Army Services Corp.

v. United States—is of little, if any, help to the government on this point 4 and, even if it were

4

In Afghan American Army Services, Judge George Miller found that a price realism analysis can

be accomplished by “comparison of the prices received with each other” in a case in which the price

comparisons involved evaluating the prices of twenty-one offerors and the independent government

estimate. 90 Fed. Cl. at 358 (internal quotation omitted). Judge Miller nonetheless found the price

realism analysis was irrational because it was based on a flawed independent government estimate. Thus,

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helpful, waiting to respond to an argument for the first time in a reply brief is not sufficient to

preserve a response. See Novosteel SA v. U.S., Bethlehem Steel Corp., 284 F.3d 1261, 1274

(Fed. Cir. 2002) (“Raising the issue for the first time in a reply brief does not suffice; reply briefs

reply to arguments made in the response brief—they do not provide the moving party with a new

opportunity to present yet another issue for the court’s consideration.”).

Despite the government’s failure to respond to Plaintiff’s argument, Defendant-

Intervenor was able to preserve a response to Plaintiff’s argument on this point; however, the

government’s good fortune is short-lived because Defendant-Intervenor’s argument is

unconvincing. Defendant-Intervenor cites Mil-Mar Century Corp. v. United States, 111 Fed. Cl.

508, 542 (2013), for the proposition that comparing prices between offerors is “one of the

allowable methods to test [price] realism.” ECF No. 32 (“Def-Int.’s MJAR”) at 9. What

Defendant-Intervenor fails to grasp is that Plaintiff’s argument does not rely on an assertion that

comparing prices is a per se unacceptable method of evaluating price realism. Rather, what

Plaintiff challenges is the irrational application of that methodology in this case. Thus, a simple

assertion that comparing offerors’ prices is an acceptable method for conducting a price realism

analysis is largely non-responsive to Plaintiff’s argument and does nothing to bolster the

agency’s irrational conclusion. Again, a method itself not only needs to be rational, but the

application of that method must be rational as well. One needs to look no further than the

opinion in Mil-Mar Century Corp. to understand the unreasonableness of the agency’s

conclusion in this case. In Mil-Mar Century Corp., the agency did far more than just look at two

sets of pricing proposals and conclude that multiple companies offering low composite rates

suggested there was no evidence of an attempt to offer unrealistically low prices as a strategy to

receive the award. Instead, in Mil-Mar Century Corp., “the Agency compared [the awardee’s]

estimated material costs to those of the other offerors and the IGCE, evaluated [the awardee’s]

estimated prices of the engine, tank and frame, and compared [the awardee’s] proposed labor

hours to those of the other offerors.” 111 Fed. Cl. at 542 (internal citations omitted). Simply

put, the apparently thorough price realism analysis in Mil-Mar Century Corp. does not compare

to the conclusory one conducted here, especially considering the irrationality of the conclusion

drawn by the agency.

b. There is insufficient documentation in the record for the Court to review the

reasonableness of the agency’s use of the CALC tool

Plaintiff further alleges that the agency’s use of the GSA Contract Awarded Labor

Categories (“CALC”) tool was not properly documented to be considered a sufficient method of

evaluating price realism. Pl.’s MJAR at 14. In its source selection decision, the agency stated

citation to a case in which the comparison involved the prices of twenty-one offerors is of little value to

this case in which the contracting officer compared the prices of two offerors and ignored the fact that

both the third offeror’s price and the government estimate were much higher. But more importantly, as

will be discussed below in addressing Defendant-Intervenor’s argument regarding Mil-Mar Century

Corp., Plaintiff is not questioning the general proposition that price comparison may be an acceptable

method of conducting a price realism analysis; rather, Plaintiff is questioning the rationality of the

conclusion that “multiple companies offering low composite rates suggested there was no evidence of an

attempt to offer unrealistically low prices as a strategy to receive the award.” Pl.’s MJAR 12–13 (citing

AR 489).

11

that the CALC tool was employed “to substantiate a random sample of labor category prices

offered by all three Offerors,” and it determined that “[a]ll offered labor category prices were

well within the acceptable range.” AR 489. However, Plaintiff points out that “there is no

documentation in the record as to the supposed use of a CA[LC] tool.” Pl.’s MJAR at 14.

“Absent such documentation there is no basis to determine if the use of the CALC tool rationally

supports a price realism analysis.” Id.

Yet again, the government failed to provide any response to Plaintiff’s contention—and,

this time, neither did Defendant-Intervenor. Instead, the government chose to rely on the

assertion that this was a FAR subpart 8.4 procurement, and, therefore, “[t]he amount of

documentation required . . . is far less than that required by FAR [Part] 15.” ECF No. 31

(“Gov.’s Cross MJAR”) at 6 (citing G4S Secure Sols. (USA), Inc. v. United States, 146 Fed. Cl.

265, 270 (2019), aff’d, 829 F. App’x 518 (Fed. Cir. 2020)). However, it is well established that

although FAR subpart 8.4 does require minimal documentation, “[a]n agency [still] must

articulate a satisfactory explanation for an action to permit effective judicial review.” Lab’y

Corp. of Am. Holdings v. United States, 116 Fed. Cl. 643, 652 (2014) (citing Timken U.S. Corp.

v. United States, 421 F.3d 1350, 1355 (Fed. Cir. 2005)).

Initially, it should be noted that the Court takes no issue with the agency’s utilization of

the CALC tool as a method of evaluating price realism. The government devotes large segments

of its brief defending the integrity and usefulness of the CALC tool. See Gov.’s Cross MJAR 7–

9. As the government explains, the CALC tool is a “publicly-available pricing tool,” which

“allows vendors and Government officials to review position-specific hourly rates for contracts

awarded under GSA Multiple Award Schedule (MAS) contracts, such as the EXPRESS Program

BPA.” Id. at 7. “Based on GSA Special Item Numbers (SIN), the CALC tool generates, a

comprehensive list and a corresponding graph of awarded rates for the requested position, and

calculates the average awarded rate, along with the ‘statistical market range.’” Id. The

government defines the “statistical market range” as including “roughly 70%” of the prices

awarded or “plus or minus 1 standard deviation from the mean.” Id.

However, while this Court is inclined to agree that use of the CALC tool could be an

effective method of evaluating price realism, the issue here is that without documentation in the

administrative record, there is no way to know whether the CALC tool was utilized reasonably.

First, the Court cannot discern whether the agency employed a statistically significant random

sample of offerors’ proposed prices. How large was the sample? Which price categories were

run through the CALC tool? Second, the contracting officer does not specify the threshold that

was used to evaluate the sampling for price realism. The decision simply states that “prices were

well within the acceptable range,” AR 489, but nowhere in the administrative record is there an

explanation or definition of what constitutes the “acceptable range.” Without this minimal

amount of documentation, the Court is unable to effectively review whether the contracting

officer’s use of the CALC tool was a reasonable method for evaluating price realism.

What is more, in an attempt to demonstrate to the Court how the CALC tool can be

utilized to effectively evaluate price realism, the government included in its cross-motion tables

showing the results of running three of the required labor categories through the CALC tool.

Gov.’s MJAR at 8. The government does not represent that these three labor categories were the

12

same ones that the agency used in its “random sample of labor category prices”; however,

unfortunately for the government, in one of the three labor categories for which it chose to

supply demonstrative CALC tool graphs—program manager—the results show that one of the

supposedly realistic proposed prices is actually unrealistic according to the government’s own

argument. Gov.’s MJAR at 8. According to the government’s briefing, “acceptable range”

means one standard deviation from the historical awarded rate. See Gov.’s MJAR at 7–8. For

program manager, the low on this range is $111. Id. at 8. Based on the government’s

delineation of the “acceptable range” in its briefing, a proposed labor rate that is at or above $111

is realistic and one that falls below $111 would be unrealistic. The problem for the government

is that the program manager price proposed by is $110.63. AR 391. The agency

determined that prices were realistic, yet the government’s own argument here shows that,

at least for the program manager position, the price proposed was unrealistic. This is not to say

that prices were or were not realistic; rather, the Court simply points out the

unreasonableness of the agency’s use of a “random sample of labor category prices” with

absolutely no explanation or documentation.

c. The agency’s conclusion that “all three Offerors reflect a clear understanding

of the requirements” is unsupported by the administrative record

The agency’s price realism analysis language required it to determine, inter alia, that the

proposed prices “reflect[ed] a clear understanding of the requirements.” AR 127 (emphasis

added). The agency did determine that “all three Offerors reflect a clear understanding of the

requirements.” AR 489. This finding, however, appears to be by ipse dixit. Nowhere else in the

evaluation are the offerors’ clear understandings reflected. In fact, in the technical expertise

evaluation, the evaluators determined that all three offerors had an “adequate” or “acceptable”

level of understanding of the requirements. For all three offerors, the evaluators concluded that

The Offeror’s quotation indicates an adequate understanding of the PWS

requirements and deliverables for a rating of “ACCEPTABLE”. . . . The overall

knowledge and experience communicated by the Offeror demonstrates they have

adequate knowledge necessary to successfully perform the requirements in the

critical PWS paragraphs. . . . In summary, the Offeror’s quotation indicates an

overall acceptable level of understanding of the PWS requirements. Based on the

Offeror’s technical methodology as presented, they have adequate knowledge to

provide the services stated in the PWS and exhibit “ACCEPTABLE” technical

capabilities with moderate risk of unsuccessful performance to the Government.

AR 443, 451, 457 (emphasis added). In addition, all three offerors were rated “acceptable” on

their technical expertise. AR 492. The rating of “acceptable” meant that an offeror had “an

adequate level of expertise and an understanding of the requirements.” AR 124. In other words,

the acceptable rating only documents that an offeror had “an understanding” versus “a clear

understanding” of the requirements.

However, without explanation, in the price evaluation section of the source selection

decision, the offerors are all found to have a “clear understanding of the requirements.” AR 489.

This may be the case, but it is not documented in the administrative record. Instead, it appears

13

airdropped in when needed to satisfy the requirements of the price realism analysis the agency

committed itself to conducting. The agency was not permitted to reach this conclusion without

some rationale as to why the offerors all had a clear understanding of the requirements,

especially considering the only documentation of the offerors’ understanding of the requirements

is that their understanding was adequate or acceptable, not clear.

d. The agency’s conclusory analysis regarding level of effort and mix of labor

appears to be untethered to price

Finally, after concluding that “all Offerors’ prices [we]re realistic[,]” the agency explains

(using identical language for all three offerors) that it also examined the level of effort and mix

of labor for all three offerors and concluded that the effort and labor mix “proposed to perform

the tasks outlined in the PWS reflects understanding of the requirements, is consistent with the

various elements of the other parts of the quotation and is considered realistic to support the

proposed approach at an acceptable level of risk to the Government.” AR 489–91 (repeating the

language verbatim for each offeror). It may be that the level of effort and labor mix, in and of

themselves, were reasonable for the requirements of the RFQ, but to conclude—divorced from

price—that this means the prices proposed were realistic, is an irrational conclusion. Essentially

the agency conducted step one in a two-step analysis. Yes, it is important that, for instance, the

number of hours proposed to conduct a task meets the agency’s estimates for the required

number of hours. But the number of hours proposed tells one little about the realism of the

proposed price if the hourly rate is not considered as part of that analysis. If, for example, the

going rate for a program manager is $150 per hour, and it is reasonably estimated that the

program manager will work 1,000 hours a year (thus $150,000 in total yearly compensation), the

fact that an offeror estimates that the program manager will work 1,000 hours means little in

terms of price realism if the offeror proposes a $75 per hour rate for the program manager

position.

Simply put, it was unreasonable for the agency to conclude, based on level of effort and

labor mix alone (without considering price), that that all three offerors’ proposed prices were

realistic, i.e., that they are “realistic for the work to be performed, reflect[] a clear understanding

of the requirements, and [are] consistent with the various elements of the other parts of the

quotation.” AR 489.

e. Plaintiff was prejudiced by the failure to conduct a rational price realism

analysis

First, it has been repeatedly held that an agency’s failure to conduct a required price

analysis is a prejudicial error in and of itself, constituting a “significant . . . error in the

procurement process.” Al Ghanim Combined Grp. Co. Gen. Trad. & Cont. W.L.L. v. United

States, 56 Fed. Cl. 502, 516 (2003) (quoting Alfa Laval Separation, Inc., 175 F.3d at 1367);

Active Network, LLC v. United States, 130 Fed. Cl. 421, 429 (2017) (“Without a price realism

analysis in the record, the Court has nothing to review and no way of determining whether [the

protestor] was prejudiced. This conclusion alone is sufficient to warrant remand to conduct a

proper price realism analysis.”); IAP World Servs., Inc. v. United States, 152 Fed. Cl. 384, 409

(2021) (“Therefore, this Court agrees with the Al Ghanim and Green Tech. line of cases and

14

concludes that Plaintiff has adequately shown prejudice from the Navy’s failure to perform an

unbalanced pricing analysis.”). In this case, as was explained above, the agency was required to

perform a price realism analysis under the terms of the RFQ and failed to do so in a manner that

was rational (at least as can be observed by the documentation in the administrative record).

Thus, under the above line of cases, this failure alone would be sufficient to show prejudice.

But even leaving this line of cases aside, the prejudice here is obvious. The award

decision in this case came down to price:

Beyond the mere adjectival ratings, the Contracting Officer found there was no

functional differences between the approaches offered by [Tolliver and ].

Therefore, in accordance with the evaluation criteria, the importance of price

increased when performing the trade-off analysis. With price increased in

importance, the Contracting Officer found that [Tolliver] offered a better value

because its price is nearly $1 million dollars lower than /RTC’s price and there

was no identifiable advantage to justify paying this price premium. Therefore,

between these two offerors, the Contracting Officer determined that [Tolliver]

offered the better value for the Government. . . .

Both [Tolliver and Digiflight] received identical adjectival ratings in the Technical

Factor. Beyond the mere adjectival ratings, the Contracting Officer found no

functional differences between the technical approaches of both companies.

However, in the Risk Mitigation and Management factor, DigiFlight offered a slight

advantage over [Tolliver] due to the strength assigned to DigiFlight. The

Contracting Officer then compared the prices offered by both companies and

determined that [Tolliver] offered a much lower price than DigiFlight. . . . The only

advantage offered by DigiFlight concerns the particular subcontractors DigiFlight

plans to employ for this task. . . . [T]he strength assigned only applies to one of

those concerns and does not justify paying a roughly $16 million price premium.

Therefore, the Contracting Officer determined that [Tolliver] provides the best-

value to the Government.

AR 495–96. In short, price was the deciding factor.

Given that price was the deciding factor and that Plaintiff’s allegation is that the prices of

the other offerors were unrealistically low compared to the prices it proposed (which were

determined to be both reasonable and realistic), if Plaintiff is correct that the other offerors’

prices were unrealistic (an analysis that the agency did not rationally undertake), Plaintiff would

have a not insubstantial chance of award once those offerors are either eliminated from

competition for proposing unrealistic prices or have their prices adjusted upwards to realistic

levels. Accordingly, although the Court does not know what the outcome of a rational price

realism analysis would be, certainly it is possible that the price differential that resulted in

Tolliver being awarded the contract over Plaintiff could change if a proper price realism analysis

is conducted. Therefore, Plaintiff was prejudiced by the error.

15

2. Plaintiff Lacks Standing to Challenge Whether the Agency Complied with

FAR § 52.222-46

Plaintiff next alleges that the Army failed to comply with FAR § 52.222-46. That

regulation—if applicable 5—would require each offeror to submit a “total compensation plan”

along with its proposal, “setting forth salaries and fringe benefits proposed for the professional

employees who will work under the contract.” 48 C.F.R. § 52.222-46(a). It would also require

the contracting agency to “evaluate the plan[s] to assure that [they] reflect[] a sound management

approach and understanding of the contract requirements.” Id. Plaintiff alleges that the agency

never performed such an assessment.

As a threshold matter, Plaintiff lacks standing to bring such a challenge. First, Plaintiff

failed to plead in its complaint how the Army’s alleged failure to comply with the regulation

prejudiced it in any way. 6 For example, a well-pled complaint would likely contain an allegation

that Plaintiff proposed higher prices in its price proposal to account for the professional

compensation levels it believed a proposal would need to meet in order to survive analysis under

FAR § 52.222-46; however, such an allegation, or something similar, appears nowhere in

Plaintiff’s complaint. 7 Second, Plaintiff fails to allege in its complaint that the RFQ even

required the “meaningful numbers of professional employees necessary” for FAR § 52.222-46 to

apply in the first place. See 48 C.F.R. § 22.1103. FAR § 52.222-46 only applies to contracts that

meet the standards of FAR § 22.1103, which requires that 1) the contract amount be “expected to

exceed $750,000” and 2) the “services are to be provided which will require meaningful numbers

of professional employees.” Id. While it is clear from the complaint that the contract amount

was certainly expected to well-exceed $750,000, an allegation that the RFQ met the meaningful

number of professional employees’ requirement is nowhere to be found. These two pleading

insufficiencies require the Court to dispense of this argument before even considering its merit.

Castle, 301 F.3d at 1337 (“Standing is a threshold jurisdictional issue, which . . . may be decided

without addressing the merits of a determination.”).

Moreover, even if Plaintiff’s theory were sufficiently pleaded and meritorious, Plaintiff

waived its right to bring such a claim here by failing to object to the non-inclusion of FAR

§ 52.222-46 as part of the evaluation criteria prior to the conclusion of the bidding process.

According to Federal Circuit precedent, “a party who has the opportunity to object to the terms

of a government solicitation containing a patent error and fails to do so prior to the close of the

5

FAR § 22.1103 requires the inclusion of FAR § 52.222-46 “in solicitations for negotiated

contracts when the contract amount is expected to exceed $750,000 and services are to be provided which

will require meaningful numbers of professional employees.” 48 C.F.R. § 22.1103.

6

At oral argument, Plaintiff even conceded that it did not plead in the complaint that the alleged

violation impacted its bid. Oral Argument at 1:14:08.

7

Plaintiff does make a statement that would have likely been sufficient for standing purposes in

its MJAR had that statement been made in its complaint: “DigiFlight relied upon FAR § 52.222-46(c) that

the ‘Government is concerned with the quality and stability of the work force to be employed on this

contract.’ In so doing, DigiFlight did not radically cut professional wage rates in order to be more

competitive for award.” Pl.’s MJAR at 22. Unfortunately for Plaintiff, an allegation like this needed to

be in its complaint in order to meet its standing burden. Even had Plaintiff met its standing burden,

however, this bare allegation in its MJAR would not have been sufficient on the merits to meet its burden

of proof of demonstrating merits prejudice.

16

bidding process waives its ability to raise the same objection subsequently in a bid protest action

in the Court of Federal Claims.” Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313

(Fed. Cir. 2007). If Plaintiff were correct that FAR § 52.222-46 applied to this RFQ, the

agency’s failure to include FAR § 52.222-46 in the RFQ would have been obvious, because the

agency never asked Plaintiff to submit, nor did Plaintiff’s offer contain, a total compensation

plan—as would be required by FAR § 52.222-46 if it applied. See generally AR 191–270. This

is not some minor undertaking that could have been missed and thus would not have been

obvious to Plaintiff. To comply with FAR § 52.222-46, Plaintiff would have needed to provide:

“a total compensation plan setting forth salaries and fringe benefits proposed for the professional

employees who will work under the contract . . . [and] [s]upporting information [] includ[ing]

data, such as recognized national and regional compensation surveys and studies of professional,

public and private organizations, used in establishing the total compensation structure.” 48

C.F.R. § 52.222-46; see also 48 C.F.R. § 22.1103 (same). Plaintiff had to be aware that it was

not providing this information and that, accordingly, the agency did not consider FAR § 52.222-

46 to be applicable. Therefore, even if Plaintiff had standing to raise this claim, under Blue &

Gold, Plaintiff waived any objection to a FAR § 52.222-46 violation by failing to raise the issue

prior to the close of bidding.

Finally, even if Plaintiff had demonstrated that it has standing and that Blue & Gold was

inapplicable, Plaintiff would still be unable to demonstrate merits prejudice here because it

benefited from the same alleged error as the awardee did. As pointed out above with regard to

its obligations under Blue & Gold, Plaintiff itself did not submit a total compensation plan as

would be required by FAR § 52.222-46 if that provision applied to this procurement. “There has

been no prejudice when a bid protestor benefited from the same potentially unlawful discretion

from which the awardee benefited.” G4S Secure Integration LLC v. United States, No. 21-

1817C, 2022 WL 211023, at *8 (Fed. Cl. Jan. 24, 2022), appeal dismissed, No. 2022-1513, 2023

WL 316142 (Fed. Cir. Jan. 19, 2023).

3. The Agency Erred by Essentially Converting a Best Value Procurement into a

Lowest Price Technically Acceptable Procurement

In its complaint, Plaintiff alleges that “by not evaluating the proposals for strengths, the

evaluators converted a best value procurement to a technically acceptable low-price

procurement.” ECF Nos. 1, 28 (“Compl.”) ¶ 1. 8 The evaluation criteria stated that the award

“will be made to the Offeror whose quotation provides the best value to the Government based

upon evaluation of all submitted quotations using the criteria below and a tradeoff process.” AR

123. As stated above, the three criteria were to be weighed as follows: “Technical Expertise, and

Risk Mitigation and Management, are of equal importance, and each of them is of greater

importance than Price.” Id. Furthermore, the evaluation criteria provided that while “[p]rice is

not expected to be the controlling criterion in the selection,” “its importance will increase as the

differences between the evaluation results for the other criteria decrease.” Id. In addition,

regarding how the proposals were to be evaluated for Technical Expertise, the RFQ explicitly

8

Plaintiff filed its complaint on October 14, 2022, ECF No. 1, and filed an amended complaint on

November 30, 2022, ECF No. 28. That amended complaint, however, merely added an additional count

(Count V) to the original complaint. It did not restate paragraphs 1–52 of the original complaint or the

prayer for relief. Accordingly, the citations to the complaint throughout will only refer to one complaint.

17

noted that “the Government considers the requirements in the following PWS paragraphs 3.1.3,

3.1.10, 3.1.11, 3.1.14, 3.1.15, 3.1.16, 3.1.17, 3.2.2, and 3.2.3 to be critical.” AR 124 (emphasis

omitted).

Plaintiff challenges the agency’s evaluation of Technical Expertise, claiming that “the

evaluators only assessed if the proposals were technically acceptable without seeking to

differentiate among the proposals.” Pl.’s MJAR at 24. Specifically, Plaintiff points to the source

selection decision, in which “for the evaluation criteria of Technical Expertise, all three

proposals were identically evaluated,” and all were awarded zero strengths, zero weaknesses, and

zero deficiencies. Id. Moreover, Plaintiff asserts that “there is no separate analysis of

differences among the proposals as to PWS paragraphs 3.1.3, 3.1.10, 3.1.11, 3.1.14, 3.1.15,

3.1.16, 3.1.17, 3.2.2, and 3.2.3.” Id. Although Plaintiff admits that “it is possible that the

proposals for technical expertise of the three offerors did not contain a single strength or

weakness,” Plaintiff still contends that such a “remote possibility cannot withstand scrutiny when

examined against the facts.” Id. at 25.

Rather, according to Plaintiff, this case is factually similar to the Government

Accountability Office’s (“GAO”) decision in Systems Research and Applications Corporation;

Booz Allen Hamilton, Inc., B-299818, 2007 WL 4867939 (Comp. Gen. Sept. 6, 2007). In that

case, GAO sustained a protest because “the record evidence[d] that the agency did not evaluate

the proposals . . . in a way that reasonably distinguished their relative merits in accordance with

the RFP’s evaluation scheme.” Id. at *20. According to GAO,

[w]here, as here, the RFP states a best value evaluation plan—as opposed to

selection of the lowest priced, technically acceptable offer—evaluation of

proposals is not limited to determining whether a proposal is merely technically

acceptable; rather, proposals should be further differentiated to distinguish their

relative quality under each stated evaluation factor by considering the degree to

which technically acceptable proposals exceed the stated minimum requirements

or will better satisfy the agency’s needs.

Id. at *19.

In response (to the extent it can be characterized as such), the government largely ignores

Plaintiff’s arguments and essentially asserts two things: 1) that Plaintiff did not prove it was

prejudiced by the alleged failure to properly evaluate the proposals for their technical merit; and

2) that lack of documentation in the record that Plaintiff is complaining about is simply a result

of this being a FAR subpart 8.4 procurement with streamlined documentation requirements.

Defendant-Intervenor largely mirrors the government’s arguments on these points.

Taking the government’s second argument first (as it goes to whether there was error,

versus whether any error was prejudicial), the government puts slightly more meat on the bones

of this argument in its reply brief asserting that “[a]s this Court has explained, FAR Subpart 8.4

requires minimal ‘documentation of any tradeoffs’ when the source selection authority chooses

between proposals with similar overall ratings.” ECF No. 38 (“Gov. Reply”) at 2 (citing Matt

18

Martin Real Estate Mgmt., LLC v. United States, 96 Fed. Cl. 106, 116 n.11 (2010)). In other

words, the government’s argument is that any failure to document the results of the technical

expertise evaluation is not an error because this is a FAR subpart 8.4 procurement and FAR

subpart 8.4 procurements require less documentation. 9

Although the government is correct that FAR subpart 8.4 procurements permit more

streamlined documentation than, for instance, FAR part 15 procurements, this streamlined

documentation requirement does not get the agency off the hook for the almost complete lack of

documentation of its rationale regarding its technical expertise evaluation for at least two

reasons. First, the streamlined or “minimum” documentation required by FAR subpart 8.4 does

not mean that the agency can provide almost no rationale for the decisions made on the technical

evaluation. FAR subpart 8.4 is clear on this point. Second, even if the FAR permitted the level

of streamlined documentation the government argues for, effective judicial review under the

Tucker Act, applying the APA standard, requires more documentation of the reasoned basis for

the agency’s decision than was provided here.

The Army’s technical expertise evaluations for all three offerors are identical, with one

small immaterial difference: 10

The Offeror’s quotation indicates an adequate understanding of the PWS

requirements and deliverables for a rating of “ACCEPTABLE.” The Evaluation

Team reviewed and evaluated all of the Offeror’s presented PWS paragraphs.

There were zero strengths, zero weaknesses, zero deficiencies, and [no/no/two]

comments identified in the Offeror’s quotation. The overall knowledge and

experience communicated by the Offeror demonstrates they have adequate

knowledge necessary to successfully perform the requirements in the critical PWS

paragraphs.

All PWS sections were reviewed, and if not addressed above, they were determined,

at a minimum, to have been adequately covered in the Offeror’s quotation. In

summary, the Offeror’s quotation indicates an overall acceptable level of

understanding of the PWS requirements. Based on the Offeror’s technical

9

Apparently, the government also believes that protests involving FAR subpart 8.4 procurements

require less briefing. As the Court has already observed, and will observe later in this opinion, the

government failed to address important aspects of Plaintiff’s arguments, as well as two of the four

injunctive relief factors. With regard to this particular FAR subpart 8.4 argument—that FAR subpart 8.4

requires less documentation—the government cited to, or quoted from, FAR subpart 8.4 exactly zero

times. See, e.g., Gov.’s MJAR at 15–16 (neither quoting nor citing anything in FAR subpart 8.4 in

support of its argument). The government’s table of authorities indicates that it cited to FAR subpart 8.4

five or more times in its opening brief by identifying the location of its citations as “passim” or

throughout. Although FAR subpart 8.4 is mentioned throughout the government’s brief, not a single

section within the entire subpart is cited or quoted even once, leaving the Court to wonder exactly what

the government is referring to in FAR subpart 8.4 (a subpart that contains thirteen sections and seven

subsections) that supports the government’s argument. As is discussed in the body of this opinion, FAR

subpart 8.4 has clear documentation requirements that the Army did not comply with here.

10

The Army did make two comments on Tolliver’s proposal regarding what were apparently two

minor concerns. See AR 480. These concerns did not affect Tolliver’s overall technical expertise rating.

19

methodology as presented, they have adequate knowledge to provide the services

stated in the PWS and exhibit “ACCEPTABLE” technical capabilities with

moderate risk of unsuccessful performance to the Government.

AR 478–480.

This incredibly repetitive and completely conclusory five-sentence long summary of the

results of the technical expertise evaluation comports with neither FAR subpart 8.4, nor the

APA. First, FAR subpart 8.4 requires, for a BPA like this procurement, that the “contracting

officer shall include in the BPA file documentation” of, inter alia: 1) “[e]vidence of compliance

with paragraph (b) of this section,” which requires that the “contracting officer shall ensure all

quotes received are fairly considered and award is made in accordance with the basis for

selection in the RFQ”; and 2) the “[b]asis for the award decision[, which] . . . should include the

evaluation methodology used in selecting the contractor, the rationale for any tradeoffs in

making the selection, and a price reasonableness determination for services requiring a statement

of work.” 48 C.F.R. § 8.405-3(a)(7). There is, however, no evidence in the administrative

record demonstrating compliance with paragraph (b) or providing any real rationale for any

tradeoffs in making the selection. With regard to compliance with paragraph (b), the Court

simply cannot tell from this administrative record whether all proposals were fairly considered or

whether the award was made in accordance with the basis for selection in the RFQ. In other

words, the repetitive and conclusory explanation of the results of the technical evaluation quoted

above gives the Court no indication that the quotes were either fairly evaluated or evaluated in

accordance with the RFQ, which, for instance, set forth nine paragraphs in the PWS that were

deemed by the agency “to be critical.” AR 124. Moreover, with regard to the basis for the

award decision, the Court can neither tell what the evaluation methodology actually was for

selecting the awardee nor discern the rationale for the tradeoff analysis, which simply adopted

the evaluation team’s technical expertise ratings. Indeed, the technical expertise ratings

themselves offer little, to no, rationale for the ratings given, or why no strengths, weaknesses, or

deficiencies were awarded. In short, although FAR subpart 8.4 may create a low bar for

documentation, the Army has fallen woefully short of that bar here.

Moreover, rather than directing the Court to any section, subsection, paragraph, or clause

in FAR subpart 8.4 that supports its streamlined documentation argument, the government

directed the Court to decisions of other judges of this Court in FAR subpart 8.4 bid protests,

principally Matt Martin Real Estate Management LLC v. United States, 96 Fed. Cl. 106 (2010).

Notably, however, the facts of Matt Martin actually support the Plaintiff’s position. Although it

is true that Matt Martin holds that “[t]he amount of documentation necessary in FAR Subpart 8.4

procurements does not rise to the level required by FAR Part 15,” it does not hold that the almost

non-existent documentation that is present in this protest complies with FAR subpart 8.4. 96

Fed. Cl. at 116. Thus, rather than help the government, Matt Martin provides an example of the

type of evaluation and documentation thereof that should be present in a FAR subpart 8.4

procurement:

The TET members rated each proposal independently. AR Tab 10, at 316. Once

individual TET members completed their individual evaluations, the TET convened

to review and compare individual evaluation ratings. Id. at 317. The TET members

20

discussed the strengths, weaknesses, significant weaknesses[,] and deficiencies of

each offeror and determined appropriate ratings. Id. The TET then completed an

Initial Evaluation devoting twenty-two pages to its analysis of Matt Martin's

proposal. AR Tab 44, at 2248–70. In the Initial Evaluation, the TET identified

Matt Martin’s strengths and weaknesses and included a narrative explaining its

basis for each determination. Id. The TET then requested revised proposals. AR

Tab 21. In the Revised Evaluation, the TET devoted eight pages to its analysis of

Matt Martin's proposal. AR Tab 43, at 1860–67.

Following the Initial and Revised Evaluations, the TET prepared its Source

Selection Memorandum with ratings of each proposal based on the Solicitation

factors and the Initial and Revised Evaluations. AR Tab 42, at 1702. The TET

submitted the Source Selection Memorandum, its Initial Evaluations and its

Revised Evaluations to the SSO. Id.

96 Fed. Cl. at 115–16. Simply put, the documentation in the government’s principal case in

support of its streamlined documentation argument far exceeded the mere five-sentence long,

conclusory explanation present in this protest.

Beyond violating the even minimal documentation requirements of FAR subpart 8.4, the

Army insufficiently documented its technical expertise evaluation for purposes of the APA

standard of review this Court applies in a bid protest. It is axiomatic “that an agency must

explain its action with sufficient clarity to permit ‘effective judicial review.’ Failure to provide

the necessary clarity for judicial review requires the agency action be vacated.” Timken U.S.

Corp., 421 F.3d at 1355 (quoting Camp v. Pitts, 411 U.S. 138, 142–43 (1973)). “Specifically,

the agency must articulate the reasons for its procurement decision including a rational

connection between the facts found and the choice made.” Lab’y Corp. of Am. Holdings, 116

Fed. Cl. at 652 (citing Distributed Sols., Inc. v. United States, 104 Fed. Cl. 368, 377 (2012)); see

also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983) (“[T]he agency must examine the relevant data and articulate a satisfactory explanation

for its action including a rational connection between the facts found and the choice made.”

(internal quotations and citation omitted)). Here, the administrative record does not provide a

satisfactory explanation for the Army’s technical evaluation of the offerors’ proposals. In other

words, the Army—to harken back to grade school math—forgot to show its work. But the

Court’s task is to determine whether the Army “considered the relevant factors and articulated a

rational connection between the facts found and the choice made.” Balt. Gas & Elec. Co. v.

NRDC, 462 U.S. 87, 105 (1983) (citation omitted). The record before the Court does not allow it

to make that determination.

The government additionally argues that Plaintiff has not demonstrated that it was

prejudiced by this complete failure of the Army to demonstrate that it conducted a rational

technical expertise evaluation. The government’s argument is without merit. According to the

government, in order to demonstrate prejudice, Plaintiff was supposed to prove not only that the

government’s failure to conduct a technical evaluation and thus trade-off analysis (thereby

converting this best value procurement into a lowest price, technically acceptable procurement)

was in error, but also that there were strengths Plaintiff was supposed to be awarded that it did

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not receive. The government’s argument misses the mark. First, Plaintiff alleged in its

complaint that it would have received eleven strengths, see Compl. Ex. 4, and reasserted that

argument, albeit without great detail, in its MJAR, Pl.’s MJAR at 25. But what Plaintiff is really

arguing here is not that it should have received additional strengths—it is arguing that the Army

completely failed to document its technical evaluation and its rationale for not awarding any

strengths, weaknesses, or deficiencies. By so doing, according to Plaintiff, the Army

impermissibly turned a best value procurement into a lowest price, technically acceptable

procurement. See 48 C.F.R. § 8.405-3(b)(2)(viii) (“The ordering activity contracting officer

shall establish the BPA with the schedule contractor(s) that represents the best value.”).

The prejudice to Plaintiff of converting this procurement from best value to lowest price,

technically acceptable is obvious. For instance, the pricing for the level of effort and expertise

that satisfies technical acceptability is likely substantially lower than the pricing of the level of

effort and expertise needed to compete for a best value award. If Plaintiff were aware of the

playing field it was playing on, it likely would have submitted a substantially different pricing

proposal potentially making its proposed prices more in line with those of the other two offerors.

Conversely, if the agency had actually evaluated the technical expertise presented in the

proposals, which it did not according to the record information before the Court, it is likely that

Plaintiff may have received strengths or that the other offerors may have received weaknesses

that would have affected the best value analysis. Instead, the agency erred by essentially

ignoring its obligation to conduct a technical expertise evaluation and thereby significantly

elevating the relative importance of price in its best-value tradeoff analysis. This error

prejudiced Plaintiff.

4. Plaintiff Failed to Demonstrate Standing to Protest the Evaluation of the Risk

Management and Mitigation factor

Finally, Plaintiff argues that the agency’s evaluation of Risk Mitigation and Management

was unreasonable because “the Army entirely failed to consider an important aspect of the

problem – Tolliver’s ability to obtain and retain qualified personnel.” Compl. ¶ 58. However,

the Court need not reach the merits because Plaintiff has failed to sufficiently plead that it has

standing to challenge this aspect of the evaluation. Nowhere in Plaintiff’s complaint did it allege

how it was prejudiced by the agency’s alleged error in evaluating Tolliver’s proposal under the

Risk Mitigation and Management factor. Rather, Plaintiff simply states that it “was prejudiced

by the arbitrary evaluation of Risk Mitigation and Management.” Id. ¶ 59. That may be, but

proper pleading of prejudice for standing purposes requires more than just this conclusion. The

next paragraph of the amended complaint may offer a little more of a clue as to what Plaintiff’s

prejudice might be: “because the evaluators failed to consider Tolliver’s ability to obtain and

retain qualified personnel in light of Tolliver proposing wages that were drastically lower than

historically paid, Count V should be sustained, and the relief granted as requested.” Id. ¶ 60.

While this sentence is slightly more illuminating as to prejudice—as in, maybe what Plaintiff is

alleging is that Tolliver’s proposed prices were artificially low and if they were higher Plaintiff

would have had a substantial chance of award—it still does not, if fact, allege how Plaintiff was

prejudiced. For instance, did Plaintiff increase its prices in anticipation of the evaluation of Risk

Mitigation and Management factor? The Court does not know whether that is the alleged

prejudice because Plaintiff did not plead it.

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Moreover, it is not clear from Plaintiff’s complaint or its MJAR that this is what it is

actually asserting caused it prejudice. Rather, it appears from those documents that it seems to

be arguing that Tolliver should have received a weakness under the Risk Mitigation and

Management factor because it was questionable, according to Plaintiff, whether Tolliver had the

“ability to obtain and retain qualified personnel.” Pl.’s MJAR at 31. The “ability to obtain and

retain qualified personnel” sounds more like an argument regarding weaknesses or deficiencies

than price. But Plaintiff makes no allegation as to how Tolliver receiving a weakness would

have affected Plaintiff. This discussion is an example of why the Court, in all but the most

obvious cases, cannot, on behalf of a protestor, surmise the prejudice the protestor allegedly

suffered as a result of a procurement error. It was Plaintiff’s obligation to plead some sort of

allegation as to how exactly a failure to properly evaluate Tolliver under this factor affected

Plaintiff.

Furthermore, to any extent that the prejudice caused by this alleged error is obvious, the

Court believes that this potential prejudicial effect is already covered by the price realism

analysis that the agency will be required to rationally conduct if it chooses to go forward with

this procurement. In other words, although the prejudice for pricing-error allegations in

procurements in which price is the deciding factor may generally be obvious, because the Court

has already determined the price realism evaluation was in error, Plaintiff needed to allege more

here for this seemingly cumulative argument (if in fact this was Plaintiff’s argument) in order to

demonstrate prejudice. Because Plaintiff failed to allege how it was prejudiced by the agency’s

alleged error with regard to its evaluation of the Risk Mitigation and Management factor,

Plaintiff lacks standing to challenge this aspect of the agency’s evaluation.

D. Injunctive Relief

As the Court has determined that the Army’s award of the contract to Tolliver was

unreasonable and that Plaintiff was prejudiced by the agency’s error, the Court now turns to the

question of whether Plaintiff is entitled to injunctive relief. The Federal Circuit has articulated a

four-part test for the issuance of a permanent injunction as follows:

To determine if a permanent injunction is warranted, the court must consider

whether (1) the plaintiff has succeeded on the merits of the case; (2) the plaintiff

will suffer irreparable harm if the court withholds injunctive relief; (3) the balance

of hardships to the respective parties favors the grant of injunctive relief; and (4)

the public interest is served by a grant of injunctive relief.

Centech Group, Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (citing PGBA, LLC

v. United States, 389 F.3d 1219, 1228–29 (Fed. Cir. 2004)). Because Plaintiff has succeeded on

the merits of its protest, the Court turns to the three remaining injunctive relief factors.

1. Irreparable Harm

With respect to irreparable harm, the pertinent question is “whether plaintiff has an

adequate remedy in the absence of an injunction.” Magellan Corp. v. United States, 27 Fed. Cl.

23

446, 447 (1993); see also Younger v. Harris, 401 U.S. 37, 43–44 (1971) (noting that “the basic

doctrine of equity jurisprudence [is] that courts of equity should not act . . . when the moving

party has an adequate remedy at law and will not suffer irreparable injury if denied equitable

relief”). Plaintiff asserts that it will be harmed absent the issuance of an injunction because the

only other available relief—recoupment of bid preparation costs—would not remedy its lost

opportunity to fairly compete for the contract.

In response, the government once again skips over Plaintiff’s argument and argues

instead that Plaintiff has not suffered irreparable harm because Plaintiff has not demonstrated

that it was prejudiced by any alleged errors. Gov.’s Cross MJAR at 18. However, as explained

above regarding the merits of the two errors upon which Plaintiff prevailed, Plaintiff was

prejudiced by the Army’s errors. Moreover, “[t]his court has recognized that a lost opportunity

to compete for a contract—and the attendant inability to obtain the profits expected from the

contract—can constitute irreparable injury.” Bluewater Mgmt. Grp., LLC v. United States, 150

Fed. Cl. 588, 619 (2020) (citing Akal Sec., Inc. v. United States, 87 Fed. Cl. 311, 319 (2009));

Hosp. Klean of Tex., Inc. v. United States, 65 Fed. Cl. 618, 624 (2005)); see also CW Gov’t

Travel, Inc. v. United States, 110 Fed. Cl. 462, 494 (2013) (“The Court of Federal Claims has

repeatedly held that a protester suffers irreparable harm if it is deprived of the opportunity to

compete fairly for a contract.”); Serco Inc. v. United States, 81 Fed. Cl. 463, 501–02 (2008)

(noting that because “the only other available relief—the potential for recovery of bid

preparation costs—would not compensate [the protestors] for the loss of valuable business on the

[contract]. This type of loss, deriving from a lost opportunity to compete on a level playing field

for a contract, has been found sufficient to prove irreparable harm”). Accordingly, Plaintiff has

adequately demonstrated that it will suffer irreparable harm if injunctive relief is not provided.

2. Balance of Hardships

In addition to considering whether a protestor would suffer an irreparable injury absent

injunctive relief, the Court must determine whether the balance of hardships to the government

and Defendant-Intervenor in issuing an injunction outweigh the harms to Plaintiff. PGBA, LLC,

389 F.3d at 1229. Here, Plaintiff has established irreparable harm, as explained above.

Furthermore, Plaintiff argues that the government would not be harmed beyond the “the garden-

variety costs and delays that may result from this Court’s issuance of a preliminary injunction.”

ECF No. 4 at 21 (citing Univ. Rsch. Co., LLC v. United States, 65 Fed. Cl. 500, 514 (Fed. Cl.

2005) (finding that the costs and inconvenience associated with the delay in transition caused by

the issuance of a preliminary injunction were typical of the costs and inconveniences that face

almost every new contractor seeking to unseat an incumbent contractor and did not outweigh the

imminent harm to plaintiff)).

Astonishingly, the government provided no actual response to Plaintiff’s argument. 11

The Court is bewildered by the lack of response to this injunctive relief criteria. 12 It is difficult

11

Defendant-Intervenor also did not point to any hardships it would suffer due to this Court’s

issuance of an injunction in this case. See ECF No. 32 at 28–29.

12

The sum total of the government’s response on the hardship and public interest factors was as

follows: “[l]ikewise, as acknowledged in DigiFlight’s motion, the hardship and public interest factors

24

for the Court to discern whether the government’s failure to respond is because the government

believes that it will not suffer any harm if an injunction is issued or if it is the result of

overconfidence regarding the strength of its positions on the merits. 13 Coincidently, it is

similarly difficult for the Court to “balance” hardships when the government could not be

bothered to assert what, if any, hardships it will suffer if an injunction is issued. Thus, the Court

will presume that Plaintiff was correct in asserting that the government would not be harmed

beyond the costs and delays that typically result from the issuance of an injunction. 14

3. Public Interest

Turning to the final factor, the Court finds that issuing a permanent injunction will serve

the public interest. The Supreme Court has instructed that before a court “employ[s] the

extraordinary remedy of injunction,” it “should pay particular regard for the public

consequences” of so doing. Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982). It is

beyond dispute that “[t]here is an overriding public interest in preserving the integrity of the

procurement process by requiring the government to follow its procurement regulations.”

Turner Constr. Co. v. United States, 94 Fed. Cl. 561, 586 (2010) (citation and internal quotation

marks omitted), aff’d, 645 F.3d 1377 (Fed. Cir. 2011). Moreover, “the public interest in honest,

open, and fair competition in the procurement process is compromised whenever an agency

abuses its discretion in evaluating a contractor’s bid.” PGBA, LLC, 57 Fed. Cl. at 663. It is

paramount that a procuring agency abide by the terms of its solicitation and the FAR in order to

maintain public confidence in the procurement process. This was not done here and, to any

extent that this general rule or some other reasons weigh against Plaintiff on this factor, the

government, as with the hardship factor, could not be bothered with addressing Plaintiff’s

argument. Accordingly, this factor likewise weighs in Plaintiff’s favor.

4. Weighing of the Factors

In addition to prevailing on the merits of its protest, Plaintiff has established that it will

suffer irreparable harm if the Court does not provide injunctive relief, that the balance of harms

turns in its favor, and that awarding injunctive relief is clearly in the public interest.

Accordingly, the issuance of a permanent injunction is warranted.

often coalesce around the merits in bid protests. Pl.’s Mot. at 38 (citations omitted). As such, these

factors also weigh against injunctive relief.” Gov.’s Cross MJAR at 17–18. First, the Court does not see

anything that resembles Plaintiff “acknowledg[ing] . . . the hardship and public interest factors often

coalesce[ing] around the merits” on page 38 of Plaintiff’s motion such that the government is somehow

responding to what Plaintiff argues regarding these two factors. Second, and more importantly, these two

sentences (falsely bolstered by a phantom citation to a non-existent argument in Plaintiff’s motion) are

conclusory. Simply put, “these factors also weigh against injunctive relief” is not a responsive argument.

13

If it is the latter, this would be an even odder position to take considering the government failed

to even respond to Plaintiff’s main argument regarding price realism.

14

And even if this presumption is incorrect, the factor nonetheless weighs in Plaintiff’s favor as a

matter of waiver. See, e.g., SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir.

2006) (“Our law is well established that arguments not raised in the opening brief are waived.”).

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CONCLUSION

For the reasons set forth above, counts II and V of Plaintiff’s complaint are DISMISSED

for lack of subject matter jurisdiction; the Court GRANTS Plaintiff’s motion for judgment on

the administrative record as to the remaining counts in its complaint; and DENIES the

government’s and Defendant-Intervenor’s cross-motions. Additionally, the Court orders that:

1. The United States, including the Department of the Army, its officers, agents, and

employees, is hereby PERMANENTLY RESTRAINED AND ENJOINED from

obtaining, or continuing to obtain, performance from Tolliver on the task order awarded

to Tolliver pursuant to the RFQ at issue in this protest;

2. Furthermore, the United States, including the Department of the Army, its officers,

agents, and employees, is hereby PERMANENTLY RESTRAINED AND ENJOINED

from awarding a task order under the RFQ at issue in this protest or allowing any

contractor to perform under any task order under the RFQ at issue in this protest until a

price realism analysis, technical expertise evaluation, and best value trade-off analysis

are performed in a manner that is not inconsistent with this opinion; and

3. The Clerk shall ENTER final judgement accordingly.

IT IS SO ORDERED.

s/ Zachary N. Somers

ZACHARY N. SOMERS

Judge

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