Opinion

Allicent Technology, LLC v. United States

Court: United States Court of Federal Claims
Filed: Jun 2, 2023
Status: Published
On the bench: Edward H. Meyers
Cited by: 0 cases
Authority: More cited than 23.4%

stating that the discretion not to conduct discussions “is not unfettered” and “must be reasonably based on the particular circumstances”

How later courts described this case

stating that the discretion not to conduct discussions “is not unfettered” and “must be reasonably based on the particular circumstances”
“[M]ere disagreements with the contracting officer’s particular assessment . . . [are] not nearly enough to demonstrate that the CO’s findings were arbitrary or capricious.”
“[T]he Court presumes that different terms imply different meanings.”
“Absent success on the merits, the other factors are irrelevant.”

Written by the judges who cited it.

The opinion

In the United States Court of Federal Claims

Nos. 22-1380C, 22-1425C, 22-1436C, 22-1460C, 22-1462C, 22-1477C, 22-1492C, 22-1519C,

22-1549C, and 23-441C

Filed: May 3, 2023

Re-issued: June 2, 20231

________________________________________

)

ALLICENT TECHNOLOGY, LLC, et al., )

)

Plaintiffs, )

)

v. )

)

THE UNITED STATES, )

)

Defendant, )

)

and )

)

BRIGHTPOINT, LLC, et al. )

)

Defendant-Intervenors. )

________________________________________ )

W. Brad English, Maynard, Cooper & Gale, P.C., Huntsville, AL, for Plaintiff Allicent

Technology, LLC. Emily J. Chancey and Mary Ann Hanke, of counsel.

Jon D. Levin, Maynard, Cooper & Gale, P.C., Hunstville, AL, for Plaintiff Ekagra Partners,

LLC. Joshua B. Duvall and Nicholas P. Greer, of counsel.

Stephen P. Ramaley, Miles & Stockbridge P.C., Washington, D.C., for Plaintiff CAN Softtech,

Inc. C. Peter Dungan and Roger V. Abbott, of counsel.

Alexander B. Ginsberg, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, D.C., for

Plaintiff Syneren Technologies Corp. Michael J. Anstett and Katherine L. St. Romain, of

counsel.

Adam K. Lasky, Seyfarth Shaw LLP, Seattle, WA, for Plaintiff GenceTek, LLC. Erica L. Bakies

and Sarah F. Burgart, of counsel.

The Court initially filed this Opinion and Order under seal to allow the Parties to propose

redactions. The Court has incorporated the proposed redactions and makes them with bracketed

asterisks (“[ * * * ]”) below.

William M. Jack, Kelley Drye & Warren LLP, Washington, D.C., for Plaintiff RarisRex, LLC.

Ken M. Kanzawa, of counsel.

Matthew P. Moriarty, Schoonover & Moriarty LLC, Olathe, KS, for Plaintiff AttainX, Inc. John

M. Mattox, Ian P. Patterson, and Timothy Laughlin, of counsel.

Brandon Graves, Centre Law & Consulting, LLC, Tysons, VA, for Plaintiff JCS Solutions, LLC.

Tyler J. Freiberger and Heather B. Mims, of counsel.

Shane J. McCall, Koprince McCall Pottroff LLC, Lawrence, KS, for Plaintiff SaiTech, Inc.

Nicole D. Pottroff, John L. Holtz, Gregory P. Weber, and Stephanie L. Ellis, of counsel.

Miles K. Karson, Trial Attorney, United States Department of Justice, Civil Division,

Commercial Litigation Branch, Washington, D.C., with whom were Brian M. Boynton, Principal

Deputy Assistant Attorney General, Patricia M. McCarthy, Director, Franklin E. White, Jr.,

Assistant Director, and Alison S. Vicks, Brittney M. Welch, and Jason X. Hamilton, Trial

Attorneys, for the Defendant. Ryan Lambrecht, U.S. Department of Commerce, of counsel.

William A. Shook, The Law Offices of William A. Shook PLLC, Washington, D.C., for

Defendant-Intervenor BrightPoint, LLC. Steven Barentzen, The Law Office of Steven

Barentzen, of counsel.

David Francis Dowd, Potomac Law Group, PLLC, Washington, D.C., for Defendant-Intervenor

Koniag Management Solutions, LLC.

Elizabeth N. Jochum, Blank Rome, LLP, Washington, D.C., for Defendant-Intervenor RIVA

Solutions, Inc. Samarth Barot, of counsel.

Alexander J. Brittin, Brittin Law Group, PLLC, Washington, D.C., for Defendant-Intervenor

Halvik Corp. Mary Pat Buckenmeyer, Dunlap Bennett & Ludwig PLLC, of counsel.

Craig A. Holman, Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Defendant-

Intervenor ProGov Partners LLC. Julia Swafford, of counsel.

Kenneth A. Martin, Martin Law Firm, McLean, VA, for Defendant-Intervenor VenTech SNAP

JV.

Kevin P. Mullen, Morrison & Foerster LLP, Washington, D.C., for Defendant-Intervenor CW-

LTS, LLC. Krista A. Nunez, of counsel.

James Y. Boland, Venable LLP, for Defendant-Intervenor SONA Networks, LLC. Andrew W.

Current, of counsel.

Damien C. Specht, Morrison & Foerster LLP, Washington, D.C., for Defendant-Intervenor

MetroIBR JV, LLC. James A. Tucker and Alissandra D. Young, of counsel.

E. Sanderson Hoe, Covington & Burling LLP, Washington, D.C., for Defendant-Intervenor T

and T Consulting Services, Inc. Andrew R. Guy, of counsel.

OPINION AND ORDER

MEYERS, Judge.

No procurement is perfect, nor do they need to be. These cases are no different. The

consolidated post-award bid protests2 raise numerous challenges to the Department of

Commerce’s award of 15 contracts for enterprise-wide IT support services. While plaintiffs raise

similar challenges to Commerce’s evaluation of their respective proposals, the factual

distinctions between the parties’ proposals, Commerce’s evaluation of them, and the plaintiffs’

arguments have necessitated the Court’s separate review of each challenged evaluation.

There are, however, some big picture points that should help the reader understand the

Court’s rationale and distinctions it made between the plaintiffs’ relatively similar claims. For

example, most, if not all, plaintiffs complained that Commerce assessed significant weaknesses

for failing to provide an approach or address various PWS requirements. Despite the Court’s

limited review of the Agency’s evaluation, the Court does find the bare assertion that a plaintiff

failed to provide an approach or address a requirement to be sufficient when the plaintiff points

to the relevant page of its proposal that says something along the lines of “our approach is . . . .”

Nor does the Court consider an evaluation that a party failed to provide an approach or address a

required element of the RFP, typically in the Performance Work Statement (“PWS”), as meaning

that the proposal lacked detail or was vague. When Commerce reached that conclusion, it did so

explicitly.

But many times, Commerce did not simply conclude that a party failed to provide an

approach or address an entire PWS section. In these cases, Commerce identified a specific

subset of tasks within the evaluated PWS section and concluded that the offeror failed to provide

an approach or address just those tasks. In such cases, the Court does not disturb those

evaluations unless the plaintiff shows that it clearly did provide the approach and address the

requirements the TET identified. In fact, if the Government argued that it was clear from the

record that the offeror failed to address a specific requirement or subset of requirements within a

PWS Section, the Court accepted that rationale and did not disturb those evaluations.

The remaining arguments were not so widespread and did not present so many close

calls. Although the Agency has a duty to read a proposal in its entirety, it is not required to find

and piece together a response to one PWS section in all the other sections of a proposal. And the

RFP explicitly instructed offerors to include cross-references to other sections if needed to avoid

duplication (in a sentence underlined in the RFP). Offerors also had to supply a compliance

matrix that indexed the proposal and listed the specific pages that responded to the specific PWS

Sections. If that were not enough, the RFP also instructed the offerors to comply with all its

instructions and that the failure to do so would be at the offeror’s own risk. And the record

makes clear that the Agency did review proposals in their entirety and awarded multiple

strengths for PWS Sections based on things offerors discussed in other sections of their

In addition to these nine consolidated protests, the four additional plaintiffs also protested this

procurement but have since voluntarily dismissed their actions. See ECF Nos. 157, 215, 222, &

230. One of those four has filed a new protest that is also consolidated with these cases but will

be decided in a subsequent opinion. See ECF No. 258.

proposals. Taking all this together, plaintiffs bore a heavy burden to prevail on a challenge to an

evaluation of a PWS Section based on parts of their proposals responding to different PWS

Sections.

There are also many disparate treatment arguments spread throughout many proposals.

These arguments are very difficult to prevail on and often succeed only in highlighting and

drawing significant attention to what the movant failed to do in its own proposal. This case is no

exception.

Similarly, several plaintiffs argued that the RFP did not require them to provide an

approach to demonstrate their ability to perform the PWS work. The RFP, however, required

offerors to demonstrate their ability to perform the work and employ innovative methods to do

so—i.e., provide their approaches to doing the work. While the Agency did consider experience

when evaluating an offeror’s ability to perform the work, it was not sufficient.

Finally, several plaintiffs argued that Commerce either failed to enforce font and spacing

requirements or disparately enforced them. This issue came down to what the RFP allowed to be

put into a table, which had different font and spacing requirements than narrative text did. The

RFP was also clear that it did not limit what could be in a table, so these arguments failed. Nor

did these plaintiffs prevail on what would constitute “excessive” use of tables because that is not

something that the RFP limited.

In the end, the Court does not find many of the procurement decisions to have been

arbitrary and capricious or an abuse of discretion. But some were. And they prejudiced four of

the plaintiffs, Ekagra, CAN Softtech, Syneren, and JCS Solutions. Therefore, the Court grants

limited injunctive relief to those plaintiffs so that the Agency can re-evaluate their technical

proposals as described herein.

I. Background

On November 12, 2021, the Department of Commerce issued Request for Proposal No.

1131L5-21-R-13OS-0006 (the “RFP”) for the Commerce Acquisition for Transformational

Technology Services (“CATTS”), seeking proposals to provide “enterprise-wide Information

Technology services.” ECF No. 118 at AR 1418.3 These services fell into “6 main task areas:

CIO Support, Digital Document and Records Management, Managed Service Outsourcing and

Consulting, IT Operations and Maintenance, Information Technology Services Management, and

Cyber Security.” Id. The RFP was for a multi-award indefinite delivery, indefinite quantity

(“IDIQ”) contract with a one-year base period and four option periods for a total of 10 years. Id.

The maximum amount of all orders combined was $1.5 billion. Id. Commerce intended to

award between 15-20 contracts. Id. at AR 1488.

The RFP included a PWS that provided the contractors’ “general responsibilities” for the

contract. Id. at AR 1421 (RFP § C.3.2). Each task order “will describe the required work to be

performed . . . .” Id. (RFP § C.3.1). The RFP also included a PWS for Task Order 1, which

The Court cites to the conformed version of the RFP in the Administrative Record unless

otherwise indicated.

Commerce intended to award at the same time as the IDIQ contracts. Id. at AR 1483. Although

Commerce awarded 15 IDIQ contracts, it did not award Task Order 1.

A. The Procurement

1. Phase 1

Commerce established a two-phase procurement. In Phase 1 offerors had to provide

proof of a Top-Secret Facilities Clearance, and provide a self-assessment. ECF No. 118 at AR

1475. Participation in the first phase was mandatory for participation in the second phase. Id.

At the end of Phase 1, Commerce would give an “advisory notification” that would “advise the

Offeror of the Government’s advisory recommendation to proceed or not to proceed with a Phase

Two submission.” Id. Commerce intended the advisory notification to minimize costs for those

offerors that it found had little to no chance for award. Id. But the advisory notification was just

that, offerors that got a negative notice could continue to submit a Phase 2 proposal if they chose.

Id.4

2. Phase 2

For Phase 2, offerors submitted their proposals to perform the work under the CATTS

RFP. These proposals consisted of four or five volumes depending on whether the offeror chose

to compete for Task Order 1, which was optional. The first four volumes of the proposals related

to the IDIQ Contracts and were the: (I) Business Proposal; (II) Technical Proposal; (III) Past

Performance Proposal; and (IV) Price Proposal. ECF No. 118 at AR 1477-1481. If offerors

chose to compete for Task Order 1, that Technical Proposal was Volume V of their proposal.5

ECF No. 118 at AR 1473.

The evaluation considered three factors to determine which offers provided the best value

to the Agency. Id. at AR 1490. Thus, Commerce could award a contract to an offeror that did

not provide the lowest-priced or the highest-rated technical proposal. Id. The three factors for

Phase 2 were Technical/Management Capability, Past Performance, and Price. Id. The RFP

provided that Technical/Management Capability was more important than Past Performance. Id.

When combined, the Technical/Management Capability and Past Performance were

“approximately equal to price.” Id.

a) Technical Proposals

The “Technical Proposal[] consists of the offeror’s proposal delineating its capabilities

and how it intends to perform contract requirements. The Technical Proposal will be evaluated

in accord with the criteria contained in Section M.” Id. at AR 1478. In Section L, the RFP

Even though the Agency classified offerors “Competitive” and “Non-Competitive” at the end

of Phase 1, ECF No. 118 at AR 1489, 3001-20, this was not a competitive range determination

because the Agency did not exclude any offeror from proceeding to Phase 2. See 48 C.F.R.

§ 15.306(c).

Because these protests focus on the evaluations of the IDIQ proposals, the Court does not delve

into the requirements of the Business Proposal or the Task Order 1 Technical Proposal.

instructs the offerors “shall clearly address each of the technical evaluation criteria in Section M

and, at a minimum, cover each element.” Id. at AR 1479. Here, offerors had to address their

capabilities to perform the work in the Performance Work Statement (“PWS”) for the IDIQ

contract. ECF No. 147-1 at AR 29545-85.

The PWS broke out various task areas and provided the work that an awardee would be

expected to perform and provided that “[f]or a contractor to be qualified for a Task Area, the

contractor must be capable of performing all services within that Task Area.” Id. at AR 29552.

And the RFP indicated that many of these tasks were required, using language like “the

contractor shall . . .” or “the contractor is expected to . . . .” Id. at AR 29552 (PWS § 3.1.2),

29556 (PWS § 3.3.3). There were also “additional tasks” listed for some of the PWS work areas,

but these were not things the offeror had to address, although offerors addressing them would

“be viewed more favorably.” ECF No. 118 at 976 (answer to Question 208). The RFP also

instructed offerors that “[t]he Government considers statements that the prospective Offeror

understands, can, or will comply with the specifications, or statements paraphrasing the

requirements or parts thereof to be inadequate and unsatisfactory.” Id. at AR 1474.

Under Section M, the RFP provides that the Agency would consider four elements of

equal relative importance when evaluating the Technical/Management Capability Factor:

Offerors must:

a. Demonstrate the Offeror’s ability to meet or exceed the Final

CATTS PWS requirements and deliverables as contained in

Attachment 1, and use proven, innovative methods to meet the

Final CATTS PWS requirements, resolve complex issues, and

provide continuous process improvement and implementation, all

while maintaining and tracking high levels of customer

satisfaction.

b. Demonstrate how the Offeror’s approach will adapt to evolving

technological innovations and the dynamic nature of the

organization (impacted by changing regulations, laws, and

executive directions) to improve service delivery and ensure

ongoing organizational improvement.

c. Demonstrate the Offeror’s ability and approach to manage and

staff (to include retaining) key personnel and non-key personnel, to

include teaming arrangements, to support each of the task areas

with the appropriate clearance levels, education, and certifications

to adequately meet the requirements of the Final CATTS PWS for

future task orders.

d. Demonstrate the Offeror’s understanding and approach to

provide a smooth, undisrupted transition (phase in and out) to

include:

a. How the offeror will implement a proven, feasible and

successful methodology for transitioning;

b. How the offeror will identify and mitigate transition

risks.

Id. at AR 1490-91.

b) Past Performance Proposals

Commerce’s past performance evaluation sought to “evaluate the quality of the offeror’s

past performance based on its record of recent, relevant work with its current and former

customers.” Id. at AR 1491. The RFP required each offeror to submit past performance data for

between three and six contracts that they completed or substantially performed within five years

of proposal submission. ECF No. 118 at AR 1480.

In this evaluation, the Agency considered the timeliness of delivery or performance,

responsiveness, quality of products or services, cost control, and compliance with subcontracting

plans or goals (if applicable). Id. at AR 1491. The RFP reserved to the Agency the “discretion

to determine the sources of past performance information used in the evaluation,” which could

come from the materials provided by offerors, information known to the Agency or other

government or private entities, or databases of past performance. Id. That said, Commerce

committed to consider all comments received regarding past performance. Id. at AR 1481.

To be “recent,” the work had to be performed within five years of proposal submission.

Id. at AR 1491. Commerce would consider performance “relevant” if “the performance involves

work that is the same or similar in nature, size, and complexity to the services being procured

under this solicitation.” Id. Each reference had to be relevant to one or more task area and the

combination of past performance references had to “demonstrate that the offeror has successfully

performed all Task Areas in the Final CATTS PWS.” Id. And the offerors had to explain why

their past performance shows that they could perform all the contract requirements. Id. at AR

1480.

Finally, if an offeror lacked relevant past performance or had “indications of

unsatisfactory performance in general,” that offeror would get a “Neutral” rating. Id. at 1491-92.

The RFP explains that a Neutral rating would not be an advantage nor a disadvantage, but

Commerce would view strong recent and relevant past performance more favorably. Id. at 1492.

c) Price Proposals

The RFP does not dedicate much space to the price proposals. Basically, the RFP

required offerors to complete a Price Schedule of hourly labor rates along with “a brief and

concise description of the rationale for pricing proposed and of the methods used for estimating

prices including assumptions upon which the Price Proposal is based for task order 1 and any

subsequent task orders.” Id. at AR 1481.

As for the price evaluation, the RFP provides:

Proposed prices will be evaluated but not scored. A price analysis

will be conducted in accordance with FAR 15.305(a)(1) and as

described at FAR 15.404-1(b) to determine that the proposed

prices are complete, fair and reasonable in relation to the

solicitation requirements. Proposed prices must be entirely

compatible with the technical proposal and consistent with the

pricing requirements listed in this solicitation.

Proposed prices identified in Attachment 03 of the solicitation will

be evaluated by multiplying the hourly labor price per respective

year by the Government’s estimated labor quantities required in

each corresponding year -- years one (1) through ten (10). The

totals for each labor category over the ten (10) years will then be

added together to reach a single weighted price per offeror. The

Government’s estimated quantities will not be disclosed.

Proposals must include ALL labor categories for ALL regions.

Id. at AR 1492.

B. Proposal Evaluation

The Source Selection Plan provides the key ratings and their definitions. For the non-

price factors—i.e., technical and past performance—Commerce would evaluate and document

strengths and weaknesses using the following criteria:

A Significant Strength relates to a benefit to the Government that

appreciably increases the likelihood of successful contract

performance and/or reduces the risk of unsuccessful contract

performance.

A Strength is defined as an aspect of the proposal that increases the

likelihood of successful contract performance and/or reduces the

risk of unsuccessful contract performance. A Strength must be tied

to a benefit to the Government.

A Weakness is defined as a flaw in the proposal that increases the

risk of unsuccessful contract performance. Weaknesses must be

tied to an impact or concern to meeting the requirements.

A Significant Weakness is a flaw that appreciably increases the

risk of unsuccessful contract performance. Significant Weaknesses

must be tied to a significant impact or concern to meeting the

requirements.

A Deficiency is defined as a material failure of a proposal to meet

a Government requirement or a combination of Significant

Weaknesses in a proposal that increases the risk of unsuccessful

performance to an unacceptable level.

A Risk is defined as an aspect of the proposal that may have an

adverse impact on an element of performance such as schedule,

cost, quality of products or services provided, etc.

ECF No. 118 at AR 1509-10.

1. Technical evaluations

Commerce received 87 proposals.6 ECF No. 130 at AR 26514. After five proposals

failed compliance reviews and one offeror asked to withdraw from competition, the Technical

Evaluation Team (“TET”) evaluated 81 technical proposals. Id. For the technical evaluation,

Commerce would rate each proposal using the following adjectival ratings:

Rating Definition

Excellent Proposal significantly exceeds solicitation requirements, demonstrates an

excellent understanding of and approach towards fulfilling the requirements

and has salient features that offer significant advantages to the Government

that are in addition to what is required. Any Weakness(es) if identified are

overwhelmingly offset by the cumulative effect of Strengths identified.

Represents a very low risk of unsuccessful contract performance.

Good Proposal exceeds solicitation requirements, demonstrates a good

understanding of and approach towards fulfilling the requirements and has

salient features that offer advantages to the Government that are in addition to

what is required. Any Weakness(es) if identified are offset by the cumulative

effect of Strengths identified. Represents a low risk of unsuccessful contract

performance.

Satisfactory Proposal meets solicitation requirements and demonstrates an adequate

understanding of and approach towards fulfilling the requirements. Any

Weakness(es) if identified are partially or mostly offset by the cumulative

effect of Strengths. Represents a low to moderate risk of unsuccessful

contract performance.

Marginal Proposal minimally meets solicitation requirements. Weaknesses and/or

Significant Weaknesses identified are not offset by Strengths and/or

Significant Strengths identified. Represents a moderate to high risk of

unsuccessful contract performance.

Unsatisfactory Proposal does not meet solicitation requirements and contains one or more

Deficiencies and/or a combination of Significant Weaknesses that represents

This does not include 2 Aces’ proposal, which got lost in the mix after Commerce received it

and Commerce subsequently evaluated.

a material failure to meet requirements. Represents a high or unacceptable

risk of unsuccessful contract performance.

ECF No. 118 at AR 1512.

Based on its evaluation, the TET concluded that 22 proposals met RFP requirements.

These proposals were:

Rating Offerors

Excellent (2) BrightPoint & CW-LTS.

Good (8) dotIT, Enterprise Solutions & Management,

Halvik, MetroIBR JV, NOVE-Dine, SONA

Networks, T and T Consulting Services, &

VentechSNAP JV.

Satisfactory (5) Centuria, Koniag Management Services,

ProGov Partners, Reston Consulting Group,

& RIVA Solutions.

Marginal (7) [***]

ECF No. 130 at AR 26516. Commerce rated the remaining 59 proposals, including those from

all plaintiffs, as Unsatisfactory due to Deficiencies and/or a combination of Significant

Weaknesses. Id. at AR 26516-18. A finding of Unsatisfactory meant that Commerce would not

consider a proposal in the best value tradeoff because “[a] proposal receiving an ‘Unsatisfactory’

or ‘Fail’ rating in one or more factors shall be removed from further consideration for award or

continued evaluation.” ECF No. 118 at AR 1489. Commerce thus eliminated roughly 73% of

the proposals on the technical evaluation. The TET did not recommend awards.

2. Past Performance Evaluation

The Past Performance Evaluation Team (“PPET”) evaluation consisted of rating each

offeror’s Past Performance Proposal. The review included confirming the work had been

performed in the five years prior to proposal submission, determining each reference’s relevance

to the CATTS contract, and evaluating the quality of performance on each reference. ECF No.

130 at AR 26319-20.

For the relevance rating, Commerce states that “[b]ased on the degree of similarity in

nature, size and complexity with the solicitation task area requirements the references were

assigned relevancy findings of Approximately the Same, Very Similar, Somewhat Similar,

Marginally Similar, or Limited to None across each task area.” Id. at AR 26319. The PPET

prepared a table of its ratings for each reference from each offeror. Id. at AR 26441-43.

For the quality of performance, the PPET reports from the Contractor Performance

Assessment Reporting System (“CPARS”), and questionnaires that contacts filled out regarding

past performance. Id. at AR 26319-20. The PPET created a table that summarizes the offeror’s

performance for each reference across multiple subject areas (e.g., quality of service,

management, regulatory compliance, etc.). Id. at AR 26444-87.

Based on the analyses of the relevance and quality of references, Commerce assigned

adjectival ratings based on the following definitions:

Rating Definition

Excellent Offeror’s relevant performance met contractual requirements and exceeded

many to the customer’s benefit. Performance was accomplished with no to a

few minor problems for which any required corrective actions taken were

highly effective. Past performance indicates a very low risk of unsuccessful

performance to the Government.

Good Offeror’s relevant performance met contractual requirements and exceeds

some to the Government’s benefit. Performance was accomplished with

some minor problems for which corrective actions taken by the contractor

were effective. Past performance indicates a low risk of unsuccessful

performance to the Government.

Satisfactory Offeror’s relevant performance met contractual requirements. Performance

was accomplished with some minor problems for which any required

corrective actions taken were satisfactory. Past performance indicates a

moderate to low risk of unsuccessful performance to the Government.

Neutral Relevant past performance information is not available, or the record of

relevant past performance information is so sparse that no meaningful past

performance rating can be reasonably assigned. A neutral rating is neither a

favorable nor unfavorable rating.

Marginal Offeror’s relevant performance did not meet all of the contractual

requirements however met all critical requirements. Performance was

accomplished with serious problems for which any required corrective actions

taken were marginally effective or not fully implemented. Past performance

indicates a moderate to high risk of unsuccessful performance to the

Government.

Unsatisfactory Offeror’s relevant performance did not meet one or more critical contract

requirements. Performance was not successfully accomplished or a contract

was terminated for default. Past performance indicates a very high or

unacceptable risk of unsuccessful performance to the Government.

ECF No. 118 at AR 1514-15. For each offeror, the PPET Report provides an adjectival rating,

provides a summary table of each reference, and a short narrative explaining the rating. ECF No.

130 at AR 26323-437. Commerce found 14 proposals Excellent, 40 to be Good, 7 to be

Satisfactory, and 20 to be Neutral. Id. at AR 26438-40 (summary table of adjectival ratings).

The PPET did not recommend awards.

3. Price Evaluation

The Price Evaluation Team (“PET”) calculated each offeror’s evaluated price by

multiplying labor rates by estimated level of effort for each year. Commerce determined the

estimated level of effort based on the Independent Government Cost Estimate (“IGCE”). ECF

No. 130 at AR 26885. Commerce estimated the level of effort for each labor category for each

year. Id. Commerce then divided the estimated work for each category by 15 to generate an

estimated level of effort to account for 15-20 awardees performing the work. Id. Finally,

Commerce weighted different labor categories based on how much Commerce anticipated

utilizing each labor category. Commerce then multiplied the weighted level of effort (hours) by

the corresponding labor rates. Id. at AR 26886. Commerce then added together the labor

categories for each year to reach a yearly price, and these yearly prices added together for a total

price. Id.

The evaluated prices ranged from $[ * * * ]to $[ * * * ], and the average price was

$[ * * * ]. Id. The IGCE was $[ * * * ]. Id. at AR 26888. Approximately [ * * * ]% of the

prices were between $[ * * * ] and $[ * * * ], and roughly [ * * * ]% were between $[ * * * ]

through $[ * * * ]. Id. The total prices, average price, and IGCE are summarized below:

[***]

Id. at AR 26890; see also id. at AR 26886-88 (table of total evaluated prices). The PET Report

also includes the analysis for each offeror’s proposal, which includes a determination of fair and

reasonable pricing.7 Id. at AR 26891-971. The PET did not recommend awards.

C. Best Value Tradeoff Award Decision

The Source Selection Authority (“SSA”) reviewed the TET, PPET, and PET Reports and

concurred with the findings of each. Id. at AR 28246. For each proposal, the SSA summarized

the TET, PPET, and PET Reports, evaluated the proposal, and made a tradeoff analysis. Id. at

AR 28246-373. The SSA then considered the 22 awardable proposals—those that the TET rated

Marginal or better—and which of them represented the best value to the Government. Id. at AR

28373-75. The SSA determined that each offeror whose proposal rated Marginal or better on the

technical evaluation received a contract.

II. Standard of Review

Commerce found that all but one proposal not relevant here contained fair and reasonable

pricing. ECF No. 130 at AR 26971-78 (summary table).

This Court has jurisdiction over bid protests pursuant to the Tucker Act, which requires

the Court to review the Government’s action under the standards of the Administrative

Procedure Act (“APA”). 28 U.S.C. § 1491(b)(1) & (4); Banknote Corp. of Am. v. United States,

365 F.3d 1345, 1350 (Fed. Cir. 2004). Under the APA, the Court determines whether the

Government’s actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A); Banknote, 365 F.3d at 1350 (citation omitted). In

other words, “a bid award may be set aside if either: (1) the procurement official’s decision

lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or

procedure.” Id. at 1351 (quoting Impresa Construzioni Geom. Domenico Garufi v. United

States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)). “When a challenge is brought on the first ground,

the courts have recognized that contracting officers are ‘entitled to exercise discretion upon a

broad range of issues confronting them’ in the procurement process.” Impresa, 238 F.3d at 1332

(quoting Latecoere Int’l, Inc. v. United States Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir.

1994)). “Accordingly, the test for reviewing courts is to determine whether ‘the contracting

agency provided a coherent and reasonable explanation of its exercise of discretion,’” id.

(quoting Latecoere, 19 F.3d at 1356), “and the ‘disappointed bidder bears a heavy burden of

showing that the award decision had no rational basis,’” id. (quoting Saratoga Dev. Corp. v.

United States, 21 F.3d 445, 456 (D.C. Cir. 1994)). “When a challenge is brought on the second

ground, the disappointed bidder must show ‘a clear and prejudicial violation of applicable

statutes or regulations.’” Id. (quoting Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169

(D.C. Cir. 1973)).

If an error is found in the procurement, the APA further instructs that “due account shall

be taken of the rule of prejudicial error.” 5 U.S.C. § 706; see also Data Gen. Corp. v. Johnson,

78 F.3d 1556, 1562 (Fed. Cir. 1996) (citations omitted) (“[T]o prevail in a protest the protester

must show not only a significant error in the procurement process, but also that the error

prejudiced it.”). The bid protester was prejudiced if “there was a substantial chance it would

have received the contract award but for the” challenged action. Glenn Defense Marine (ASIA),

PTE Ltd. v. United States, 720 F.3d 901, 912 (Fed. Cir. 2013) (citing Bannum, Inc. v. United

States, 404 F.3d 1346, 1358 (Fed. Cir. 2005)). To what extent a showing of prejudice is

necessary, however, depends on the procurement error. Specifically, “when an irrational or

arbitrary and capricious agency action has occurred, prejudice is presumed, but when a violation

of statute or regulation has occurred, there must be a separate showing of prejudice.” Caddell

Constr. Co. v. United States, 125 Fed. Cl. 30, 50 (2016) (citing generally Centech Grp., Inc. v.

United States, 554 F.3d 1029, 1037 (Fed. Cir.2009)); Banknote, 365 F.3d at 1351; see also, e.g.,

Textron, Inc. v. United States, 74 Fed. Cl. 277, 329 (2006) (“This prejudice analysis, however,

should be reached only when the protestor has shown violation of an applicable procurement

regulation. If the court finds that the Government has acted arbitrarily and capriciously, the

analysis stops at that finding.”), appeal dismissed sub nom. Textron, Inc. v. Ocean Tech. Servs.,

Inc., 222 F. App’x 996 (Fed. Cir. 2007), and dismissed per stipulation, 223 F. App’x 974 (Fed.

Cir. 2007).

Lastly, this bid protest is before the Court pursuant to Rule 52.1 of the Rules of the Court

of Federal Claims (“RCFC”), which provides for judgment on the administrative record. See

RCFC 52.1. Judgment on the administrative record under RCFC 52.1 “is properly understood as

intending to provide for an expedited trial on the record.” Bannum, 404 F.3d at 1356. The rule

requires the Court “to make factual findings from the record evidence as if it were conducting a

trial on the record.” Id. at 1354.

III. Standing

Congress granted this Court jurisdiction over an “action by an interested party objecting

. . . 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). To establish standing in a bid protest, plaintiffs must establish that they are

interested parties under Section 1491(b)(1). In this post-award protest, an interested party is an

actual offeror “whose direct economic interest would be affected by the award of the contract or

by failure to award the contract.” Am. Fed’n of Gov’t Emps., AFL-CIO v. United States, 258

F.3d 1294, 1302 (Fed. Cir. 2001). Because this is a standing question, the Court must address it

before turning to the merits. Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312,

1319 (Fed. Cir. 2003) (“[B]ecause the question of prejudice goes directly to the question of

standing, the prejudice issue must be reached before addressing the merits.”).

While it is undisputed that every plaintiff is an actual offeror, two intervenors move to

dismiss some or all the plaintiffs on standing grounds because, according to the intervenors, the

plaintiffs (or some subset of them) are not interested parties. CW-LTS moves to dismiss all the

complaints because “the number of Deficiencies and/or Significant Weaknesses assigned to

many of the Plaintiffs’ proposals” makes establishing standing “an insurmountable burden.”

ECF No. 200 at 3. Thus, “[t]he number of Deficiencies and/or Significant Weaknesses assessed

to each Plaintiff’s proposal alone warrant the Court’s dismissal of their Complaints.” Id. at 3.

This argument, however, fails because it confuses the prejudice required to establish standing

with the prejudice required to prevail on the merits.8

In a bid protest, the Court makes two prejudice determinations. Ascendant Servs., LLC v.

United States, 160 Fed. Cl. 275, 287 (2022) (“In order to be successful in a bid protest, a

protestor must establish prejudice twice.”). First, the Court must determine whether a plaintiff’s

allegations, if true, establish a substantial likelihood of award but for the error. To meet this

burden, a plaintiff “must allege facts — not mere conclusory assertions of law — demonstrating

prejudice.” Ekagra Partners, LLC v. United States, 163 Fed. Cl. 189, 203 (2022) (quoting

Vanquish Worldwide, LLC v. United States, 163 Fed. Cl. 57, 69 (Nov. 10, 2022) (additional

citations omitted)). Second, the Court must evaluate prejudice on the merits. Here, the plaintiff

must prove that the Government erred and that the error was prejudicial. Id. In other words,

“[t]his second prejudice determination employs the same standards as the prejudice

determination for purposes of standing, discussed above. The difference between the two is that

the prejudice determination for purposes of standing assumes all non-frivolous allegations to be

The remaining intervenors and Government contend that plaintiffs fail to establish prejudice on

the merits but do not challenge standing on these grounds. The Government does, however,

make limited standing and/or merits prejudice challenges to specific claims about past

performance, Weaknesses, and price that it argues cannot be prejudicial because of the

Significant Weaknesses and/or Deficiencies that a plaintiff has. The Court will address these at

the opening of each section below where the Government makes one of those arguments.

true, whereas the post-merits prejudice determination is based only on those allegations which

have been proven true.” L-3 Commc’ns Corp. v. United States, 99 Fed. Cl. 283, 289 (2011).

CW-LTS does not argue that any plaintiff failed to allege facts sufficient to establish

prejudice; rather, it argues that no plaintiff can establish prejudice because of the number of

Significant Weaknesses and/or Deficiencies the Agency assigned to each. But the question of

whether a plaintiff can establish prejudice is a merits question. The standing question goes to the

allegations in the complaint, which CW-LTS ignores. And the Court has reviewed each

plaintiff’s Complaint and confirmed that they have alleged facts that challenge each Significant

Weakness or Deficiency that Commerce assigned their proposals. Assuming these allegations

are true, as the Court must for the standing analysis, each plaintiff has alleged sufficient facts to

challenge their Significant Weaknesses and/or Deficiencies. And if they prevail on these, their

Strengths, Past Performance, and Price evaluations show a substantial chance of award and,

therefore, establish standing.

And the one case CW-LTS relies upon to support its argument does not help CW-LTS’s

cause. In Seaborn Health Care, Inc. v. United States, Judge Wheeler found that “none of

Seaborn’s allegations, either individually or in combination, would place Seaborn in line for

award.” 101 Fed. Cl. 42, 49 (2011). But in Seaborn, the plaintiff’s proposal was among the

lower-rated proposals and would have had to leapfrog six other offerors whose evaluations

Seaborn did not contest. And Seaborn would have had to increase its own evaluation

significantly—its “approach to the scope of work” needed to go from “Marginally acceptable” to

“Exceptional,” its “quality control plan” had to go from “Average” to “Exceptional,” and its past

performance from “fair” to “very good.” Id. at 49. It was the failure to allege sufficient facts to

establish entitlement to these changes that doomed Seaborn’s complaint, not the number of

issues with its evaluation. Here, the Agency issued many Significant Weaknesses and

Deficiencies for the same purported failure—failing to provide an approach—that, if set aside

(for example on the basis that the proposals have sections for each PWS work section that lead

off with something along the lines of “our approach is . . .”), would remove most of the assigned

Significant Weaknesses and Deficiencies. In other words, the allegations here “either

individually or in combination” would, if proven, establish a substantial chance of award.

ProGov makes a more targeted argument, challenging the standing of four of the nine

plaintiffs—Allicent, A-Tek,9 RarisRex, and Ekagra—arguing they cannot establish standing

because they were found unawardable due to their technical evaluations. ECF No. 195-1 at 6-8.

Thus, ProGov argues that “unless the Court finds the Agency determination unreasonable,” these

plaintiffs lack standing. Id. at 6 (citing COMINT v. United States, 700 F.3d 1377, 1384 (Fed.

Cir. 2012)) (emphasis added). But that is unquestionably a merits question, not a standing one.

The Court may well find the Agency determination unreasonable on the merits, but there is

nothing deficient about the pleadings that address each evaluation rating that made plaintiffs

unawardable and, if proven, demonstrate a substantial chance of award. In fact, if Allicent,

Ekagra, and RarisRex prove the allegations in their complaints and the challenged Significant

Weaknesses and/or Deficiencies are removed, each of these plaintiffs would have [ * * * ]. ECF

Because A-Tek voluntarily dismissed its case after ProGov’s motion, the Court does not

address A-Tek’s standing. ECF Nos. 214-15.

No. 130 at AR 26890. Clearly these plaintiffs adequately allege facts sufficient to establish a

substantial chance of award if they prevail on proving the allegations in their complaints.

ProGov’s argument regarding intervening, higher-rated offerors fares no better. ECF No.

195-1 at 8-9. While intervening offerors could preclude standing, they do not here because if

these plaintiffs prevail on the merits, they will have technical ratings on par or better than

awardees, coupled with similar past performance and pricing, would put them in the zone of

active consideration. See Afghan Am. Army Servs. Corp. v. United States, 90 Fed. Cl. 341, 366

(2009) (holding that absent procurement errors, plaintiff “was ‘within the zone of active

consideration’ and that suffices to demonstrate prejudice”) (citing Alfa Laval Separation, Inc. v.

United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999) (quoting CACI, Inc.-Fed. v. United States,

719 F.2d 1567, 1574-75 (Fed. Cir. 1983))).

The Court denies CW-LTS’s and ProGov’s motions to dismiss properly target merits

prejudice rather than standing.

IV. Allicent Technology, LLC (No. 22-1380)10

Commerce assigned Allicent’s technical proposal 1 Significant Strength, 9 Strengths, 1

Significant Weakness, and 5 Deficiencies. As a result of the Deficiencies, it found Allicent’s

technical proposal Unsatisfactory, which eliminated Allicent from consideration for award.

Allicent challenges these ratings and its past performance rating. Allicent challenges the merit of

the negative technical ratings and its past performance evaluation.

A. Commerce’s assessment of a Significant Weakness for PWS Section 3.4.8 was

not arbitrary and capricious.11

Commerce assigned Allicent a Significant Weakness for PWS Section 3.4.8. PWS

Section 3.4.8 calls for a contractor to provide various cloud services, including “infrastructure

services (e.g., Exchange and Email, SharePoint, . . . Public Key Infrastructure (PKI), etc.).” ECF

No. 118 at AR 1238-39. Commerce assigned the Significant Weakness because it found Allicent

“did not demonstrate capability to operate and maintain PKI systems.” ECF No. 130 at AR

26594.

The first question is whether the RFP required offerors to address PKI specifically.

Allicent contends that the RFP did not require offerors to demonstrate capability with PKI

because “PKI was just one example in a non-exhaustive list of possible services that the

contractor may have to provide.” ECF No. 232 at 10 (emphasis added).12 Although the RFP

uses the words “will include but are not limited to,” Allicent claims that only the words

preceding the “e.g.” parenthetical (which ends in “etc.”) are required services, and the

The Court addresses the protests in the order in which they were filed.

Because the parties generally addressed Weaknesses, then Significant Weaknesses, and then

Deficiencies, the Court does so as well.

To the extent Allicent is claiming the language is unclear, that argument is waived. Blue &

Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007).

parenthetical merely provides an illustrative, non-exhaustive list that includes “PKI.” Id. But

the Solicitation provided that each offeror would be evaluated, in part, based on ability to

“[d]emonstrate [its] ability to meet or exceed the Final CATTS PWS requirements . . . .” ECF

No. 118 at AR 1490. And the plain text of PWS Section 3.4.8 provides that “[t]hese services will

include but are not limited to . . . infrastructure services (e.g., . . . Public Key Infrastructure

(PKI), etc.).” ECF No. 147-1 at AR 29560 (emphasis added). Given that “infrastructure

services” is a broad term, the parenthetical narrows it to specific items that offerors should

expect to perform. Indeed, the same language—“will include but are not limited to”—was used

elsewhere in the RFP and Allicent understood what it meant. ECF No. 203 at 34. And “[f]or a

contractor to be qualified for a Task Area, the contractor must be capable of performing all

services within that Task Area.” ECF No. 147-1 at AR 29552 (emphasis added).

Several parties argued that Allicent’s arguments fail because HSPD-12 requires PKI

implementation and Allicent should have known it would be required. E.g., ECF No. 200 at 6-7.

Similarly, the Government also contends that “PKI operations is an industry standard based on

federally mandated encryption requirements” and so “[i]t is inconceivable that an entity of

Allicent’s experience would believe that demonstrating proficiency with a universal requirement

in federal IT services is optional, particularly given the PWS’s specific requirement.” ECF No.

254 at 14. But Allicent disputes that PKI is “federally-mandated” pursuant to HSPD-12 because

HSPD-12 does not “‘mandate compliance with Public Key Infrastructure,’ as CW-LTS has

represented[,]” but instead “set[s] the groundwork for agencies to prioritize secure and reliable

forms of identification, which later developed into a standard for implementing, among other

things, digital certificate infrastructure for federal employees and their contractors.” Id. at 12

(citations omitted). Whatever the merit of these arguments, the RFP language is clear enough

and required Allicent to demonstrate its ability to meet or exceed the requirement to provide

“infrastructure services,” which included PKI services.

Allicent next argues that the Agency’s evaluation was arbitrary and capricious because

PKI is a security measure and Allicent mentioned PKI in its approach to cybersecurity in a

different task area. ECF No. 168 at 16. Although Allicent did not explicitly use the term “PKI”

in its approach to PWS Section 3.4.8, Allicent “described its ability to leverage its knowledge of

key services like [ * * * ] which is just one tool in the PKI toolbox in its cybersecurity

approach.” Id. (citing ECF No. 118 at AR 3872). But this language is in a different section of

Allicent’s proposal and there is no cross-reference in the response to Section 3.4.8 to this

language. While the Agency was free to look at other places, it was not required to search out

responsive information in the proposal. CACI, Inc., 158 Fed. Cl. at 19 (2021) (“Agencies must

indeed review the whole proposal, but they are not compelled to comb the record for information

that an offeror does not otherwise adequately present through a well-written proposal.”). Again,

the RFP instructed offerors to cross-reference other sections if they provided information in other

sections of the proposal. ECF No. 118 at AR 1472 (“Cross-references should be utilized to

preclude unnecessary duplication of data between sections.”) (emphasis in original). And the

RFP put offerors on notice that failure to do so could result in negative evaluations. Specifically,

the RFP provides that “Offerors shall examine and follow all instructions. Failure to do so will

be at the Offeror’s own risk.” ECF No. 118 at AR 1474 (RFP § L.2). Nor can the Court

conclude that it is arbitrary and capricious for the Agency to find that a discussion of “one tool in

the PKI toolbox” is insufficient to demonstrate a capability to support PKI as a whole.

Allicent also challenges the evaluation because it argues that several awardees merely

parroted back the words “PKI” and were not given a Significant Weakness, thereby

demonstrating the Agency “converted its evaluation into a word search, instead of substantively

reviewing offerors’ approaches . . . .” ECF No. 168 at 12, 16. The Government counters that

“Allicent’s claim that the agency improperly deviated from the evaluation criteria in favor of a

mere keyword search is speculation unsupported by any record evidence.” ECF No. 203 at 33.

But what is a sufficient discussion of PKI is for the Agency to determine, not the Court. And, as

discussed below, the Agency found several awardees to have sufficiently addressed the

requirement without using the term PKI, which means the Agency could not have been doing a

keyword search.

Finally, Allicent raises a disparate treatment argument because MetroIBR,13 RIVA, and

T&T Consulting all failed to mention the term PKI yet were not given Significant Weaknesses.

ECF No. 168 at 17. To establish disparate treatment, Allicent must show that its proposal and

the other proposals are “substantively indistinguishable”. ECF No. 254 at 16 (citing Office

Design Grp. v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020)). The Government

acknowledges that although RIVA and T&T omitted the term “PKI,” unlike Allicent, they both

address PKI components and requirements in other manners. Id.; ECF No. 203 at 14-15.

In reviewing RIVA’s and T&T’s proposals, the Court cannot conclude that the Agency’s

evaluations show disparate treatment. RIVA states in its proposal that it would use [ * * * ].

ECF No. 128 at AR 20767. T&T’s proposal states “that it would ‘ensure [ * * * ],’ and ensure [

* * * ], and also [would] [ * * * ].” ECF No. 254 at 15 (citing ECF No. 129 at AR 23144,

23156). The Court cannot find it irrational for the Agency to conclude that these proposals

satisfied the PKI requirement. And it is not disparate treatment for the Agency to evaluate

different proposals differently.

The Agency’s assessment of a Significant Weakness for PWS Section 3.4.8 was not

arbitrary and capricious; it was supported by the record. And Allicent has failed to demonstrate

disparate treatment with respect to the Agency’s evaluations of RIVA’s and T&T’s proposals.

Therefore, the Court denies Allicent’s challenge to the Significant Weakness for PWS Section

3.4.8.

B. Deficiencies

Because the SSP defines a technical rating of Unsatisfactory to include any single

deficiency, Allicent must prevail on its challenges to each Deficiency that Commerce assigned to

its proposal.

1. Commerce’s assessment of a Deficiency for PWS Section 3.4.20 was not

arbitrary and capricious.

Although Allicent raised MetroIBR in its MJAR, the Government responded to it and Allicent

did not discuss MetroIBR in its reply. Therefore, the Court does not consider MetroIBR in this

decision. E.g., Golden IT, LLC v. United States, 157 Fed. Cl. 680, 695-96 (2022) (collecting

cases).

Commerce assigned Allicent’s proposal four Deficiencies for PWS Sections 3.4.2, 3.4.4,

3.4.10, and 3.4.20. The entirety of the evaluation was:

The Offeror did not demonstrate its ability to meet or exceed the

requirements of PWS Task Area 4, Sections 3.4.2, 3.4.4, 3.4.10,

and 3.4.20. The Offeror failed to address these requirements or

provide an approach to demonstrate capability. The requirements

of PWS Sections 3.4.2, 3.4.4, 3.4.10, and 3.4.20 are key

components of Task Area 4, IT Operations and Maintenance.

Therefore, the Offeror’s failure to demonstrate its approach and its

full understanding of the requirements in these PWS areas creates

an unacceptable risk of unsuccessful performance.

ECF No. 130 at AR 26594 (emphasis in original). The Government insists that it is clear from

the record why Allicent got the assigned Deficiencies. ECF No. 203 at 31-32. The Court “will

uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.”

Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974) (citing

Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595 (1945)). But this Court will not scour

the record to “supply a reasoned basis for the agency’s action that the agency itself has not

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

(1983). Nor is the Government free to assert a rationale that the Agency did not propound in the

record. Id. And without a rationale that is consistent with the record, the Court is unable to

determine “whether the decision was based on a consideration of the relevant factors and

whether there has been a clear error of judgment.” Citizens to Pres. Overton Park, Inc. v. Volpe,

401 U.S. 402, 416 (1971).

According to the Government, Commerce assigned the Deficiency for PWS Section 3.4.2

because Allicent’s proposal purportedly lacked detail. ECF No. 203 at 29-30. But that is not the

reason Commerce gave for the Deficiency. The Agency clearly concluded that “[t]he Offeror

failed to address these requirements or provide an approach to demonstrate capability.” ECF

No. 130 at AR 26594 (emphasis added). That is not a conclusion that Allicent’s proposal lacked

detail. And when the Agency concluded that a proposal lacked detail, it said so. E.g., ECF No.

130 at AR 26631 (“Offeror does not explain what their ‘cradle to grave’ approach entails . . . . ”);

ECF No. 130 at AR 26551 (“Offeror failed to provide any details of [its] 11-step approach, thus

failing to demonstrate a capability to perform these requirements.”); ECF No. 130 at AR 26678

(“However, the above statements are vague . . . .”). Therefore, the Court cannot accept a

contrary argument in this litigation.

The Government also argues in its reply that Allicent failed to address PWS Section

3.4.20, which justifies the Deficiency on that ground. ECF No. 254 at 9. PWS Section 3.4.20

calls for “knowledge wall and video display integration, operations, and maintenance.” ECF No.

147-1 at AR 29565. This work would include things like “engineering, installing, and

programming video display systems”; conducting testing; and “maintaining and operating a wide

variety of video display equipment, to include video feed devices, channel and layout controls,

audio, video, and display components”; and similar services Id. In its response and reply,

Allicent countered that it addressed these requirements in a section of its proposal that combined

its responses to PWS Sections 3.4.13, 3.4.18, 3.4.19, and 3.4.20, which Allicent considers to be

related. ECF No. 232 at 8 (citing ECF No. 119 at AR 3862). PWS Sections 3.4.13, 3.4.18, and

2.4.19 address “collaboration services”; “voice installation, operations, and maintenance”; and

“video and video teleconferencing installation, operations, and maintenance” respectively. ECF

No. 147-1 at 29562, 29564-65. Thus, the question is whether Allicent’s proposal clearly

addresses PWS Section 3.4.20’s requirements.

Here the Court is mindful that “the role of the court is ‘not to substitute its judgment for

that of the agency,’ but rather to determine whether the agency had a rational basis for its

decision.” Vanguard Recovery Assistance v. United States, 101 Fed. Cl. 765, 784-85 (2011)

(internal citation and quotation marks omitted). There is nothing on the face of Allicent’s

proposal that responds to PWS Section 3.4.20 other than the inclusion of that section number in

the header of the one-page section of Allicent’s proposal responding to these four PWS Sections.

See ECF No. 119 at AR 3862. Allicent devotes the first half of the page to voice services but

does not explicitly address knowledge wall requirements. Id. The bottom half of the page has a

header “Video & Video Teleconferencing Installation, Operations & Maintenance,” which is

also the title of PWS Section 3.4.19. Id.; see also ECF No. 147-1 at AR 29564. This section of

the proposal refers explicitly to video teleconferencing support, but not to the knowledge wall

requirements. While it may be that some of the proposal services address PWS Section 3.4.20

requirements, they do not clearly do so. And they do not do so clearly enough for the Court to

conclude that the Agency lacked a rational basis when it concluded that Allicent did not respond

to the PWS Section 3.4.20 requirements. Therefore, the Deficiency for PWS Section 3.4.20 is

not arbitrary and capricious, and the Court will not disturb it.

C. Prejudice

As explained above, Allicent must show prejudicial error to prevail. To do so, Allicent

“must show that there was a substantial chance it would have received the contract but for the

government’s error in the bid process.” Labatt Food Serv., Inc. v. United States, 577 F.3d 1375,

1380 (Fed. Cir. 2009) (citing Bannum, Inc. v. United States, 404, F.3d 1346, 1358 (Fed. Cir.

2005)). Given that the Deficiency Commerce assigned to Allicent’s proposal for PWS Section

3.4.20 was rationally assessed, Allicent cannot establish prejudice. The SSP provides that

Commerce would use an adjectival rating system that defines an Unsatisfactory technical rating

as one where the “Proposal does not meet solicitation requirements and contains one or more

Deficiencies and/or a combination of Significant Weaknesses that represents a material failure to

meet requirements. Represents a high or unacceptable risk of unsuccessful contract

performance.” ECF No. 118 at AR 1512. Thus, a single Deficiency results in a technical

proposal being Unsatisfactory. And “[a] proposal receiving and ‘Unsatisfactory’ or ‘Fail’ rating

in one or more factors shall be removed from further consideration for award or continued

evaluation.” ECF No. 118 at AR 1489 (RFP § M.2.2(d)(5)) (emphasis added). As a result, no

matter how erroneous any other part of the Agency’s evaluation of Allicent may be, the fact that

a Deficiency survives the Court’s review means that the Agency “shall” remove Allicent’s

proposal from further consideration.

Because Allicent cannot establish prejudice, the Court denies Allicent’s MJAR and grants

the Government’s and Defendant-Intervenors’ Cross-MJARs.

V. Ekagra Partners, LLC (No. 22-1425)

Commerce assessed Ekagra’s technical proposal 1 Significant Strength, 5 Strengths, 3

Weaknesses, and 21 Significant Weaknesses. As a result, Ekagra’s technical proposal was rated

Unsatisfactory, which eliminated Ekagra from consideration for award. Ekagra challenges the

merit of the negative technical ratings.

A. Weaknesses

1. Commerce rationally assigned the Weakness for PWS Section 3.1.2.

PWS Section 3.2.1 establishes that “[t]he contractor shall provide technical writing and

documentation support. Technical writing services and documentation support include, but are

not limited to . . . maintaining change control for all documents.” ECF No. 147-1 at AR 29552-

53. The Evaluation claims Ekagra “did not provide an approach to demonstrate capability to

support this requirement . . . .” ECF No. 130 at AR 26676. Ekagra explained in its proposal that

its “multi-staged approach to Technical Writing and Document Management includes

requirements gathering, planning, drafting, peer review, editing, and proofreading.” ECF No.

122 at AR 11154. But the Agency, “based on its technical expertise and judgment, determined

that ‘drafting peer review, editing, and proofreading,’ was not the equivalent of providing a

detailed technical approach to performing the work necessary for ‘change control,’ and that

Ekagra’s failure would ‘result[] in an inefficient documentation process.’” ECF No. 203 at 43

(citing ECF No. 130 at AR 288804) (emphasis in original).

Ekagra does not dispute that it “did not specifically use the words ‘change control,’ [but]

it did state that it employs a Document Management approach that includes ‘drafting, peer

review, editing and proofreading.’” ECF No. 173 at 22 (citing ECF No. 122 at AR 11154).

While Ekagra may believe that “[t]hat is the very essence of change control,” ECF No. 231 at 3;

see also ECF No. 173 at 22 (“Ekagra’s document management involves all aspects of the

rigorous change control process, including those services sought by the Agency”), the Court does

not find that to necessarily be true. It is clear that “maintaining change control for all

documents” is one of several requirements prescribed under PWS Section 3.1.2. See ECF No.

147-1 at AR 29552-53. But it is not clear that “drafting, peer review, editing and proofreading”

satisfies the requirement to manage “change control” because change control connotes so form

of version and revision control, not merely the “peer review, editing, and proofreading” of

documents. Therefore, Ekagra’s challenge to the Agency’s assigning a Weakness to its proposal

for PWS Section 3.1.2 fails.

2. Commerce rationally assigned the Weakness for PWS Section 3.1.5.

PWS Section 3.1.5 requires the contractor “to provide the capabilities necessary to

define, track, and control licenses procured under the contract and those licenses provided by the

government for the full period of performance of the contract.” ECF No. 147-1 at AR 29553.

Further, the solicitation clarifies that “[t]his capability should be on-line and remote[ly]

accessible through standard features (e.g., browser) to provide government situational awareness

and ensure compliance with applicable license terms and conditions.” Id. The TET concluded

that Ekagra “stated they would, ‘provide a License Utilization Report for CATTS stakeholders,’

but did not demonstrate that this reporting capability would be on-line and remotely accessible.”

ECF No. 130 at AR 26676.

Ekagra counters that the Agency’s rationale is contradicted by the record because

“[r]eporting usage ‘across multiple cloud and development environments,’ both alone and when

combined with reporting tools that are used to report data from the cloud necessarily means they

are online and remotely accessible.” ECF No. 173 at 22 (citing ECF No. 122 at AR 1115).

Accordingly, Ekagra claims its “proposal included features that met this PWS requirement,

including tracking being online, remotely[,]” and therefore the “assignment of a Weakness here

is arbitrary and irrational.” ECF No. 231 at 4. While Ekagra maintains the approach set forth in

its proposal “necessarily” indicates that its reporting capability would be online and remotely

accessibly, the Agency did not exceed its discretion in coming to the opposite conclusion. This

is because reporting across multiple environments only requires the reader to conclude that a

report would cover software in those various environments. But it does not necessarily mean or

imply that one would be able to access such a report online and remotely accessible through a

browser. It was, therefore, not arbitrary or capricious for the Agency to conclude that Ekagra

failed to demonstrate that its proposed reporting would be available online. See ECF No. 122 at

AR 11156. Therefore, Ekagra’s challenge to the Agency’s evaluation of its proposal for PWS

3.1.5 fails.

3. Commerce’s assessment of a Weakness for PWS Section 3.4.13 was

arbitrary and capricious.

PWS Section 3.4.13 requires the contractor “to provide unified communications support

as part of its network and communication services . . . includ[ing], but [] not limited to,

integrating real-time communications services like instant messaging, telepresence, IP telephony,

video conferencing, data access and sharing with non-real time communication services such as

unified messaging (voicemail, email, SMS).” ECF No. 147-1 at AR 29562. In its evaluation, the

Agency determined Ekagra’s proposal “did not provide an approach to demonstrate capability to

support these requirements (Offeror’s Technical Volume, p. 25), which will leave end-users

without the ability to access multiple methods to communicate effectively and ensure near or

real-time responses to support Department missions.” ECF No. 130 at AR 26677. Further, the

Government reasons that “Ekagra’ s proposal merely lists ‘Feature[s] of Our Approach,’ absent

any detail whatsoever as to the actual execution of these purported ‘features.’” ECF No. 203 at

44 (citing ECF No. 122 at AR 11174).

Ekagra asserts “[t]his weakness is incorrect on its face.” ECF No. 173 at 23. In support,

Ekagra highlights sections of its proposal that addresses how it “would carry out accomplishing

this requirement . . . [and,] [s]hort of listing step by step instructions explaining and detailing its

plan to address this PWS Section, Ekagra successfully explained its approach and demonstrated

its capability to do so based on what it wrote in its proposal.” ECF No. 231 at 4. Such

“solution[s] for these services[,]” which the Agency found lacking, included:

[***]

ECF No. 173 at 23 (citing ECF No. 122 at AR 11174).

Although the Court acknowledges that Ekagra’s discussion of PWS Section 3.4.13 is,

perhaps, brief, the Court cannot agree that Ekagra failed to provide an approach or address

requirements. Ekagra’s proposal does lay out an approach and identifies “Features of our

Approach” specific to PWS Section 3.4.13. ECF No. 122 at AR 11174. Nor does the

Government argue that there were specific elements PWS Section 3.4.13 that Ekagra did not

respond to. Although the Court would consider an evaluation that Ekagra failed to provide an

approach to a PWS Section sufficient if Ekagra failed to address all required work, the Court will

not check the proposal on its own to search for missing requirements because this Court will not

scour the record to “supply a reasoned basis for the agency’s action that the agency itself has not

given.” State Farm Mut. Auto. Ins. Co., 463 U.S. at 43.

If the Agency intended to evaluate the proposal as insufficiently detailed, as the

Government now argues, it could have done so. Indeed, the Agency did, in fact, find many

proposals insufficiently detailed and said so. See, e.g., ECF No. 130 at AR 26631 (“Offeror does

not explain what their ‘cradle to grave’ approach entails . . . . ”); ECF No. 130 at AR 26551

(“Offeror failed to provide any details of [its] 11-step approach, thus failing to demonstrate a

capability to perform these requirements.”). And the TET found another part of Ekagra’s own

proposal vague. ECF No. 130 at AR 26678 (“However, the above statements are vague . . . .”).

Given the clarity with which the Agency found proposals insufficiently detailed, the Court does

not read an evaluation stating that Ekagra failed to provide an approach as saying the approach

lacked sufficient detail. “[A] court cannot effectively review whether a procuring agency has

properly exercised its discretion if the procuring agency does not adequately explain the rationale

for its relevancy assessment.” Mgmt. & Training Corp. v. United States, 161 Fed. Cl. 578, 597

(2002). And, without a rationale that is consistent with the record, the Court is unable to

determine “whether the decision was based on a consideration of the relevant factors and

whether there has been a clear error of judgment.” Overton Park, Inc., 401 U.S. at 416.

The Weaknesses assigned to Ekagra’s proposal for PWS Section 3.4.13 was arbitrary and

capricious.

B. Significant Weaknesses

1. Commerce’s assessment of Significant Weaknesses for PWS Sections

3.4.2, 3.4.4, 3.4.5, 3.4.12, 3.4.14, 3.4.15, 3.4.17, 3.4.18, 3.4.19, and 3.4.20 was

arbitrary and caprcious.

PWS Section 4 focuses on “IT Operations and Maintenance” and contains 21 subsections

focusing on specific types of support services. ECF No. 147-1 at AR 29557-66. The TET found

many faults with Ekagra’s proposal, assessing many Significant Weaknesses, including ten

Significant Weaknesses joined into a single bullet point stating:

The PWS requires the Offeror to provide an approach to

demonstrate capability to support PWS Task Areas 3.4.2, 3.4.4,

3.4.5, 3.4.12, 3.4.14, 3.4.15, 3.4.17, 3.4.18, 3.4.19, and 3.4.20.

The Offeror’s proposal states they will support the requirements,

but does not demonstrate capability to meet or exceed

requirements, and it does not provide an approach as to how the

Offeror will perform successfully (Offeror’s Technical Volume, p.

20-27).

ECF No. 130 at AR 26677 (emphasis in original). The remainder of the evaluation explains why

the flaws constitute a Significant Weakness. Id.

Ekagra first argues that “the Agency only documented 12 of the 21 purported

[significant] weaknesses. The Agency’s assignment of phantom weaknesses 13 through 21 is

irrational because it is undocumented.” ECF No. 173 at 23 (citing Lab. Corp. of Am. Holdings v.

United States, 116 Fed. Cl. 643, 653 (2014)). Specifically, Ekagra takes issue with the “laundry

list of PWS sections where the Agency found that Ekagra ‘states they will support the

requirements but does not demonstrate capability to meet or exceed requirements, and it does not

provide an approach as to how the Offeror will perform successfully.’” ECF No 173 at 23

(citing ECF No. 130 at AR 26677). This, Ekagra argues, provides “no way of knowing if the

first bullet point under Significant Weakness is for one weakness or ten . . . [and] there are no

other differentiating factors that would lead one to reasonably find this single bullet point

actually represents ten Significant Weaknesses.” ECF No. 231 at 5.

The record is clear, however, that the TET assigned a separate Significant Weakness for

each of the PWS Sections listed in the TET Report. The TET Report’s summary of Ekagra’s

proposal makes clear that the TET assigned 21 Significant Weaknesses to Ekagra’s proposal.

ECF No. 130 at AR 26675. The question is how to count these Significant Weaknesses. Ekagra

counts the number of bullet-point paragraphs in the Significant Weakness section of the TET

Report (the way the Court initially read the report), and there are only 12 separate paragraphs.

Thus, Ekagra does not believe there is any documentation of the 9 “phantom” Significant

Weaknesses. When one counts the number of PWS Sections identified in the Significant

Weakness section, however, there are 21. Id. at AR 26677-81. This is clearly how the Agency

counted the Significant Weaknesses and the Court does as well.

On the merits of the evaluation Ekagra complains that “[t]he Agency did not identify any

aspect of Ekagra’s 65-page proposal that failed to ‘meet or exceed requirements’” and did not

explain how Ekagra failed to “‘provide an approach as to how [Ekagra] will perform

successfully.’ Rather, it just found that these were ‘key components of Task Area 4, IT

Operations and Maintenance’ and concluded that something Ekagra wrote in its 65-page

proposal failed to meet them.” ECF No. 173 at 24 (quoting ECF No. 130 at AR 26677). Ekagra

then points to the sections of its proposal that respond to each of PWS Sections 3.4.2, 3.4.4,

3.4.5, 3.4.12, 3.4.14, 3.4.15, 3.4.17, 3.4.18, 3.4.19, and 3.4.20. ECF No. 173 at 24-26 (citing

ECF No. 122 at AR 11171-75). In its proposal, Ekagra does address its approach to Task Area

4—PWS Sections 3.4.1-21—at pages 18-27 of its proposal, ECF No. 122 at AR 11167-76. In

these pages, Ekagra discusses its approach and includes tables discussing the “Features of our

Approach” and “Benefits” of those approaches to the specific PWS Work.

The Government, however, contends that these discussions of Ekagra’s approach failed

to satisfy the RFP. According to the Government, Ekagra was “required to ‘clearly address each

of the technical evaluation criteria in Section M, and at a minimum cover each element’ as well

as ‘[p]rovide a detailed technical approach to performing the work in the Final CATTS PWS.’”

ECF No. 203 at 45-46 (citing ECF No. 118 at AR 1479-80). And, after evaluating Ekagra’s

proposal, the Agency “determined that Ekagra merely ‘states that it will support the

requirements,’ but contrary to the solicitation’s requirement, ‘does not demonstrate capability to

meet or exceed requirements, and it does not provide an approach as to how the Offeror will

perform successfully.’” ECF No. 203 at 46 (citing ECF 130 at AR 28805). This, the

Government asserts, was within the Agency’s discretion. Id. “Moreover, the [A]gency provided

a concise statement that there was a significant gap between Ekagra’s purported capabilities and

an articulation of the actual means to execute them—as required by the solicitation—which

satisfies the agency’s burden to provide some rationale for its decision.” ECF No. 203 at 46-47.

It is well settled “that an agency must explain its action with sufficient clarity to permit

‘effective judicial review . . . .’” Timken U.S. Corp v. United States, 421 F.3d 1350, 1355 (Fed.

Cir. 2005) (quoting Camp v. Pitts, 411 U.S. 138, 142-43 (1973)); see also In re Sang Su Lee, 277

F.3d 1338, 1342 (Fed. Cir. 2002) (“The agency must present a full and reasoned explanation of

its decision [such that] . . . [t]he reviewing court is thus enabled to perform a meaningful review .

. . .”). While “[t]he scope of review under the ‘arbitrary and capricious’ standard is narrow and a

court is not to substitute its judgment for that of the agency[,]” the agency nevertheless “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.’” State Farm Mut. Auto. Ins.

Co., 463 U.S. at 43 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168

(1962)). Simply stating that Ekagra failed to provide an approach when the proposal plainly

discusses its approach, does not comport with the record. While the Court does not require a

“line-by-line” breakdown, if there are some requirements of the PWS that Ekagra failed to

address, then either the Agency or the Government would need to specify which ones.

Otherwise, the only way the Court can read the TET’s analysis is that Ekagra provided no

approach at all, which is contradicted by the record.

While the Court acknowledges that Ekagra’s discussion of the PWS Sections that got

Significant Weaknesses is, perhaps, brief, the Court cannot agree that Ekagra failed to provide an

approach. Nor does the Government argue that there were specific elements of any one of these

PWS Sections that Ekagra did not respond to. Although the Court would consider an evaluation

that Ekagra failed to provide an approach to a PWS Section sufficient if the offeror failed to

address all required work, the Court will not check the proposals on its own to search for missing

requirements because this Court will not scour the record to “supply a reasoned basis for the

agency’s action that the agency itself has not given.” State Farm Mut. Auto. Ins. Co., 463 U.S. at

43.