Thalin, LLC v. United States

In the United States Court of Federal Claims

No. 22-1811

Filed: June 8, 2023 †

THALIN, LLC,

Plaintiff,

v.

THE UNITED STATES,

Defendant,

and

FURY SOLUTIONS, LLC,

Intervenor-Defendant.

Jon D. Levin, with W. Brad English, Emily J. Chancey, Joshua B. Duvall, and Nicholas P. Greer,

Maynard, Cooper & Gale, P.C., Huntsville, Alabama, for Plaintiff.

Ebonie I. Branch, Trial Attorney, with Douglas K. Mickle, Assistant Director, Patricia M.

McCarthy, Director, Commercial Litigation Branch, Brian M. Boynton, Principal Deputy

Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, D.C.,

Aaron J. Weaver, Trial Attorney, AF/JACQ Contract Litigation, U.S. Air Force, for Defendant.

Suzanne Sumner, with Barbara A. Duncombe, Brandon E. Dobyns, and Erin R. Davis, Taft

Stettinius & Hollister LLP, Dayton, Ohio, for Intervenor-Defendant.

MEMORANDUM OPINION AND ORDER

TAPP, Judge.

In negotiated procurements, disappointed offerors face an uphill battle to show an agency

acted arbitrarily or capriciously. Even if a disappointed offeror can show a flawed evaluation or

failure to properly document a decision, the disappointed offeror must also show it was

†

This Order was originally filed under seal on May 24, 2023, (ECF No. 41). The Court provided

parties the opportunity to review this Opinion for any proprietary, confidential, or other protected

information and submit proposed redactions. Only Defendant filed proposed redactions on June

7, 2023, (ECF No. 43); they are accepted by the Court. Thus, the sealed and public versions of

this Opinion differ only to the extent of those redactions, the publication date, and this footnote.

prejudiced by the agency’s conduct. Due to the discretion afforded to contracting officers, this

can be a nearly insurmountable hurdle when the agency makes a best value determination.

This bid protest considers whether the United States Air Force (“Air Force”) erred when

it awarded Fury Solutions, LLC (“Fury”) the “Multilateral Administrative Requirements

Vehicle” (“MARVel”) contract providing office administrative services for the Phillips Research

Site (“PRS”) at Kirtland Air Force Base in New Mexico; this facility houses the Air Force

Research Laboratory Space Vehicles and Directed Energy Directorates. Thalin, LLC (“Thalin”),

a disappointed offeror, challenges the United States on three main issues: (1) whether the Air

Force misevaluated offerors’ past performance; (2) whether the Air Force failed to comply with

the Solicitation’s evaluation criteria regarding Thalin’s staffing approach; and (3) whether the

Source Selection Authority’s (“SSA”) trade-off analysis was irrational. Thalin seeks declaratory

relief providing that the Air Force’s award lacks a rational basis and is otherwise unreasonable,

arbitrary and capricious, and contrary to applicable law and regulation. Lastly, Thalin requests a

permanent injunction requiring that Fury cease performance and the Air Force to reevaluate

proposals.

The Court determines that despite some documentation failures, the Air Force reasonably

reviewed proposals and determined its award decision based on a best value tradeoff.

Accordingly, the Court denies Thalin’s Motion for Judgment on the Administrative Record,

(Pl.’s MJAR, ECF No. 34), and grants the United States’ and Fury’s Cross-Motions for

Judgment on the Administrative Record, (Def.’s xMJAR, ECF No. 36; Int.-Def.’s xMJAR, ECF

No. 35).

I. Background

The procurement involves an 8(a) set-aside Indefinite Duration Indefinite Quantity

(“IDIQ”) contract for administrative and data entry support at PRS. (Administrative Record

“AR” 1, ECF No. 28-1). 1 The Solicitation’s 2 Performance Work Statement (“PWS”) defined the

scope of work:

The objective of this acquisition is to obtain Non-Personal, Non-Advisory

and Assistance (A&AS) Services in response to Task Orders (TO) issued by

the Contracting Officer (CO) for management, business and administrative

services. These services are to support the Phillips Research Site (PRS)

management and operations at various organizational levels to include Air

Force Research Laboratory (AFRL) Space Vehicles (RV) and AFRL

Directed Energy (RD) Directorates, AFRL geographically separated units or

locations with an AFRL/RD or RV mission and their technical and functional

1

Citations to the record in this opinion are from the Administrative Record, (ECF No. 28-1).

These citations refer to the appendix paginations within these documents as filed with the Court

and do not correspond with the ECF-assigned page number on which the appendix appears.

Thus, the Court will cite to the record using “(AR __).”

2

Request for Proposal No. FA945122RA002.

2

than substitute in its own judgment. UnitedHealth Mil. & Veterans Servs., LLC v. United States,

132 Fed. Cl. 529, 551 (2017); Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 43 (1983) (requiring agency to consider an important aspect of the problem, explain its

decision so it conforms to the evidence before the agency, or plausibly ascribe difference in view

based on agency expertise). The standard of review is “highly deferential[.]” CHE Consulting,

Inc. v. United States, 552 F.3d 1351, 1354 (Fed. Cir. 2008). “Procurement officials have

substantial discretion to determine which proposal represents the best value for the government”

particularly in the “minutiae of the procurement process[.]” E.W. Bliss Co. v. United States, 77

F.3d 445, 449 (Fed. Cir. 1996). However, if the agency’s conduct fails under this standard, the

Court must determine if the “bid protester was prejudiced by that conduct.” Bannum, Inc. v.

United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005). To establish prejudice, the plaintiff must

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

[agency’s] errors.” Id. at 1353.

When the parties move for judgment on the administrative record, RCFC 52.1 provides a

procedure to seek the equivalent of an expedited trial on a “paper record, allowing fact-finding

by the trial court.” Bannum, Inc., 404 F.3d at 1356. Genuine issues of material fact do not

preclude judgment on the administrative record and so, the Court can resolve questions of fact by

referencing the administrative record. Id. at 1355–56. The Court is bound to the administrative

record and “will not put words in an agency’s mouth or invent supporting rationales the agency

has not itself articulated . . . .” ENGlobal Gov’t Servs., Inc. v. United States, 159 Fed. Cl. 744,

764 (2022) (quoting IAP Worldwide Servs., 159 Fed. Cl. 265, 286 (2022)). The Court must be

careful regarding “any rationale that departs from the rationale provided at the time the procuring

agency made its decision.” Sys. Stud. & Simulation, Inc. v. United States, 152 Fed. Cl. 20, 32

(2020) (quoting Raytheon Co. v. United States, 121 Fed. Cl. 135, 158 (2015)), aff’d 809 F.3d 590

(Fed. Cir. 2015)).

Thalin challenges the United States on three primary grounds. First, Thalin argues that

the Air Force conducted a flawed evaluation of its past performance, ignoring information about

its mentor, BMA. (Pl.’s MJAR at 21–25). Second, Thalin argues that the Air Force failed to

consider and apply proper adjectival ratings to its staffing approach. (Id. at 25–30). Third, Thalin

argues the source selection decision lacked a rational basis because the underlying evaluations

and ratings were flawed. (Id. at 30–37). The United States counters that the Air Force properly

evaluated Thalin’s past performance, assigned Thalin’s staffing approach appropriate adjectival

ratings, and that the SSA properly considered and documented Thalin and Fury’s proposals.

(Def.’s xMJAR at 13–31). Fury similarly argues the Air Force reasonably evaluated Thalin’s

proposal under Factor 1 and Subfactor 2, and the SSA’s trade-off analysis was rational. (Int.-

Def.’s xMJAR at 7–18). The Court agrees with the United States and Fury.

A. The Air Force’s evaluation of Thalin’s proposal under Factor 2 was not flawed.

Thalin argues that the Air Force engaged in a flawed evaluation of Factor 2—Past

Performance. (Pl.’s MJAR at 21–25). Specifically, Thalin contends that the Air Force arbitrarily

ignored its mentor’s relevant past performance when Thalin provided the information in a

different subsection of the proposal. (Id. at 21–22). Thalin further argues that the Air Force

“obviously read Thalin’s past performance” information but ignored details and regulations

regarding percentages of work share among Thalin and its joint venturers. (Id. at 23–24 (citing

7

13 C.F.R. § 125.8(c)(1))). Thalin concludes that the Air Force’s error was prejudicial, and if

properly evaluated, Thalin would have received the only “Very Relevant” rating. (Id. at 24–25).

The United States counters that the Air Force properly evaluated Thalin’s past

performance because Thalin failed to comply with Solicitation instructions. (Def.’s xMJAR at

22–27). First, the United States argues Thalin’s proposal contained a material omission when it

failed to adequately describe the role each joint venture partner would perform as well as the

specific percentage and type of work for each partner as required by the Solicitation. (Id. at 23).

To show Thalin’s deficiencies, the United States differentiates Thalin’s proposal with Fury’s,

which “fully complied” with the Solicitation’s requirements. (Id. at 26–27). Second, the United

States argues Thalin’s reliance on a regulation regarding the breakdown of work share is

misplaced because it establishes a minimum threshold but not the requisite specifics. (Id. at 27).

For its part, Fury notes that the Solicitation “distinctly required the offeror to delineate the role

each subcontractor, teaming partner and joint venture partner as well as the percentage and type

of work each would perform[.]” (Int.-Def.’s xMJAR at 11 (citing AR 963)). Fury argues the

Solicitation clearly required such details in each offeror’s proposal, but that Thalin omitted “any

specific breakdown.” (Id. at 12). The United States’ and Fury’s arguments are persuasive while

Thalin’s are not.

The Air Force is required to evaluate all proposals according to the terms and conditions

of the Solicitation. See FAR 15.305(a) (“An agency shall evaluate competitive proposals and

then assess their relative qualities solely on the factors and subfactors specified in the

solicitation.”). In turn, offerors are required to “conform to the material terms and conditions of

the solicitation[.]” Allied Tech. Grp., Inc. v. United States, 649 F3d 1320, 1329 (Fed. Cir. 2011)

(quoting E.W. Bliss Co., 77 F.3d at 448). Any deviating proposal “should be considered

unacceptable and a contract award based on such an unacceptable proposal [would] violate[] the

procurement statute and regulations.” Id. In other words, a proposal must adequately respond to

material requirements in the solicitation. See Centech Grp., Inc. v. United States, 554 F.3d 1029,

1037–38 (Fed. Cir. 2009) (“To be acceptable, a proposal must represent an offer to provide the

exact thing called for in the request for proposals, so that acceptance of the proposal will bind the

contractor in accordance with the material terms and conditions of the request for proposals.”).

A material solicitation requirement (1) is express in the solicitation, and (2) serves a

“substantive purpose.” Digiflight, Inc. v. United States, 150 Fed. Cl. 650, 657 (2020) (internal

citations omitted), appeal dismissed, No. 2021-1486, 2021 WL 6337494 (Fed. Cir. Sept. 22,

2021). “A substantive purpose is something important to the government’s evaluation of the

offer, is binding on the offeror, or has a more than negligible impact on the price, quantity, or

quality of the bid.” ManTech Advanced Sys. Int’l, Inc. v. United States, 141 Fed. Cl. 493, 506–07

(2019) (collecting cases). This Court has held that “[a] proposal’s failure to satisfy a

material . . . solicitation requirement is a material error.” Digiflight, Inc., 150 Fed. Cl. at 657.

Under Factor 2, the Solicitation expressly required offerors to describe the role of each

joint venture partner and provide a percentage breakdown of the type of work each partner would

perform. (AR 963–64). For example, Paragraph 6.1.1., Attachment 22, required offerors to

“describe the role of the [o]fferor and each subcontractor, teaming partner, and/or joint venture

partner for whom the [o]fferor is electing to provide Past Performance[,]” noting that “[t]he

Summary Page shall also indicate the percentage and type of work the [o]fferor and contractor,

8

joint venture, partner, affiliate, subcontractor, etc. will perform.” (AR 963) (emphasis added).

The Solicitation also included a Performance Information (“PI”) Worksheet for offerors to

provide brief descriptions regarding past performance. (AR 853–56). Section G of the PI

Worksheet required offerors to:

Describe the nature or part of the work on the proposed effort to be performed

by the business entity being reported here. Also, estimate the percentage of

the total proposed effort to be performed by this entity and whether this entity

will be performing as the prime, subcontractor, or corporate division.

(AR 856) (emphasis added). Both requirements are material because they were included to help

the Air Force understand which business entity will perform specific proportions of the work. In

the SSEB’s report, the Board included each offeror’s percentage breakdowns, if provided, to

explain its recency and relevancy determinations. (AR 3157–59). As such, the percentage

breakdowns were integral to the Air Force’s evaluation and had more than a negligible impact on

a proposal’s quality. See ManTech Advanced Sys. Int’l, Inc., 141 Fed. Cl. at 506–07.

In its proposal, Thalin committed a material error when it failed to provide a full

percentage breakdown as required by Factor 2. 4 (AR 2226, 2230, 2234); see Digiflight, Inc., 150

Fed. Cl. at 657. On its Summary Page, Thalin stated that as a prime contractor it would “perform

no less than 90% of the work[.]” (AR 2226). It also provided that “Subcontractor Arctos will

perform up to 20% of the work 90% of the work on the MARVel Contract[.]” (Id.). However, it

did not provide similar percentage breakdowns for its mentor, BMA, and its protégé, Lunatek

LLC (“Lunatek”), on the Summary Page. (Id.). This absence was noted by the SSEB in its report.

(AR 3159 (listing “Prime: Thalin (90%), Mentor: [BMA], Protégé: [Lunatek][;] Subcontractor:

Arcos (up to 20%)”)).

Thalin also did not provide a specific percentage breakdown for BMA’s performance in

response to Section G on the PI Worksheet. (AR 2234). As an initial matter, Thalin responded to

the Section G prompt under the mislabeled Section I. (Id.). 5 Thalin argues that the duty “to write

a well-organized proposal” has its limits and that the Air Force ignored information “in a

heading half a page down from where the Agency wanted it.” (Pl.’s MJAR at 23). This is

unavailing. Notwithstanding that scrivener’s error, Thalin’s response itself was insufficient.

Specifically, it did not detail BMA’s proposed effort or provide a percentage breakdown, (AR

2233); instead, it provided that “BMA is the Mentor Company Partner in [Thalin]. [Thalin] will

perform the preponderance of the work – no less than 80% aggregately.” (AR 2234). This

response merely provides an aggregate, not a specific breakdown of each entity’s proposed

performance.

4

The Solicitation cautioned offerors that a “proposal must include all information requested and

must be submitted in accordance with these instructions. Compliance with these instructions is

mandatory[.]” (AR 2702).

5

Section I does not exist on the Air Force’s Worksheet. (AR 2234).

9

Thalin’s omissions plainly contravene its argument that the Air Force ignored or failed to

read BMA’s past performance submission. (Pl.’s MJAR at 23). In its proposal, Thalin did not

provide what percentage of the work BMA would complete, as requested. (AR 2226, 2230,

2234). The Federal Circuit distinguishes such omissions from de minimis errors “that are so

insignificant when considered against the solicitation as a whole that they can safely be ignored

and the main purposes of the contemplated contract will not be affected if they are.” Grumman

Data Sys. Corp. v. Dalton, 88 F.3d 990, 1000 (Fed. Cir. 1996). The Air Force specifically

requested the breakdown to understand each entity’s proposed respective involvement and

Thalin failed to satisfy that material requirement. Thalin’s omission was even noted in the SSEB

report, which states that “[t]he Past Performance Team identified one BMA (mentor) contract

that was considered ‘Very Relevant’ to MARVel however there is no indication of the

percentage of work performance as required by the solicitation.” (AR 3172–73). Without

Thalin’s proposed percentage breakdown, the Air Force was left to speculate what percentage of

the work share would be performed by the protégé and mentor. Therefore, Thalin committed a

material error when it omitted a percentage breakdown of BMA’s performance and the Air Force

properly evaluated Thalin’s past performance.

Furthermore, Thalin improperly relies on 13 C.F.R. § 125.8 to support its argument that

the Air Force ignored a legally imposed percentage breakdown between mentors and protégés.

(Pl.’s MJAR at 24). “When interpreting regulations, we apply the same interpretive rules we use

when analyzing the language of a statute.” Boeing Co. v. Sec’y of Air Force, 983 F.3d 1321,

1327 (Fed. Cir. 2020) (citing Mass. Mut. Life Ins. Co. v. United States, 782 F.3d 1354, 1365

(Fed. Cir. 2015)). It is well established that the Court must, wherever possible, “giv[e] effect to

the plain meaning of each word, clause or sentence.” ManTech Telecomms. & Info. Sys. Corp. v.

United States, 49 Fed. Cl. 57, 67 (2011) (internal citations omitted). Section 125.8(c)(1) provides

that a protégé must perform at least 40% of the work while the mentor performs the rest. Thalin

argues the Air Force “ignored the law” and that “BMA’s level of effort would have been up to

60%” because it was the mentor. (Pl.’s MJAR at 24; Pl.’s Reply at 6, ECF No. 37). However,

this ignores the plain language of the regulation.

Section 125.8 provides “[w]hat requirements must a joint venture satisfy to submit an

offer or a procurement or sale set aside or reserved small business[.]” Subsection § 125.8(c)(1)

specifically requires that:

[A]ny contract set aside or reserved for small business that is to be performed

by a joint venture between a small business protégé and its SBA–approved

mentor authorized by § 125.9, the joint venture must perform the applicable

percentage of work required by § 125.6, and the small business partner to the

joint venture must perform at least 40% of the work performed by the joint

venture.

13 C.F.R. § 125.8(c)(1) (emphasis added). This language does not create rigid requirements

wherein the protégé performs 40% of the work and the mentor performs the remaining 60%, as

argued by Thalin. (Pl.’s MJAR at 24). Rather, it merely indicates a minimum threshold for the

protégé’s performance of work. See Framaco Int’l, Inc. v. United States, 119 Fed. Cl. 311, 317,

323 (2014) (understanding “at least” to indicate a minimum threshold). Therefore, it was rational

for the Air Force to not apply a “legally imposed percentage” to Thalin’s past performance. This

10

deficiency was significant. Accordingly, the Air Force properly evaluated Thalin’s proposal

under Factor 2 and did not act arbitrarily or capriciously.

B. The Air Force’s evaluation of Thalin’s proposal under Subfactor 2 complied with the

Solicitation.

Thalin argues that the Air Force departed from the Solicitation’s evaluation criteria under

Subfactor 2. (Pl.’s MJAR at 26–30). Specifically, Thalin claims its final adjectival rating should

have reflected the SSEB’s removal of any weaknesses found by initial evaluators under

Subfactor 2. (Id. at 26). Thalin highlights that other offerors’ ratings favorably increased once the

SSEB removed their weaknesses, however, Thalin’s rating remained Acceptable despite having

four strengths and zero weaknesses. (Id. at 26–28). Thalin argues the SSEB treated it unequally

because it did not reconsider its adjectival rating and did not adequately document its rating

decision. (Id. at 27–29). 6

The United States counters that the Air Force’s evaluation was consistent with the

Solicitation’s qualitative criteria and properly documented. (Def.’s xMJAR at 27–34). The

United States argues the Air Force exercised its discretion to determine that Thalin’s proposed

staffing approach warranted an Acceptable rating. (Id. at 29 (citing AR 3123)). The United States

also notes that Thalin fails to explain why this rating was unreasonable and the result of unequal

treatment. (Id. at 30–31). Further, the United States argues the SSEB was not required to change

Thalin’s adjectival rating, and that it adequately documented its evaluation process. (Id. at 32–

33). Similarly, Fury argues Thalin fails to establish that it was treated unequally because “not all

strengths or weaknesses are the same[,]” so evaluators must exercise discretion when evaluating

proposals. (Int.-Def.’s xMJAR at 15–18). The Court agrees with Thalin that the SSEB did not

properly document its Acceptable rating but determines the failure did not prejudice Thalin and

Thalin was not subject to unequal treatment.

i. The SSEB failed to properly document its evaluation of Thalin’s proposal

under Subfactor 2, but Thalin was not prejudiced by the failure.

It is well-established that “[t]he [C]ourt should not substitute its judgment for that of a

procuring agency.” Cincom Sys., Inc. v. United States, 37 Fed. Cl. 663, 672 (1997). “The

deference afforded to an agency’s decision must be even greater when a trial c ourt is asked to

review a technical evaluation[,]” L-3 Commc’ns EOTech, Inc. v. United States, 83 Fed. Cl. 643,

650 (2008), because procurement officials exercise broad discretion to determine whether a

proposal warrants strengths or weaknesses. Tetra Tech, Inc. v. United States, 137 Fed. Cl. 367,

386 (2017); E.W. Bliss Co., 77 F.3d at 449 (technical evaluations are the “minutiae of the

procurement process . . . which involve discretionary determinations of procurement officials

that a court will not second guess[.]”). However, the Court’s role is to determine whether the

officials evaluated the proposals and explained a “rational connection between the facts found

and the choice made.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (quoting Burlington Truck

6

Thalin also argues the SSA did not conduct an independent review of Subfactor 2’s rating,

however, Thalin discusses the argument in detail below in the next section of its brief. (Id. at 29–

37). The Court will also address this issue in more detail below.

11

Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). Therefore, to successfully challenge a

best value determination, a protestor must offer more than its own disagreement with the

agency’s assessment of different proposals and must also establish it was prejudiced by the

agency’s conduct. Banknote Corp. of Am., Inc., 56 Fed. Cl. at 384; Bannum, Inc., 404 F.3d at

1353.

Under Subfactor 2, the Air Force used two technical evaluators and then the SSEB to rate

and find strengths and/or weaknesses for each proposal. (AR 391–92). Technical evaluators rated

Thalin’s proposal as Acceptable, with three strengths and four weaknesses and three strengths

and three weaknesses, respectively. (AR 2810–11, 2815). The SSEB left Thalin’s Acceptable

rating intact but assigned it four strengths and zero weaknesses. (AR 3153). The SSEB explained

Thalin’s four strengths, including that Thalin’s recruiting methods were “solid and varied” and it

“put some thought into [training] areas of the PWS[.]” (Id.). However, the SSEB did not explain

why Thalin’s rating remained an Acceptable. (Id.). Instead, it merely stated “[s]taffing approach

had several strengths and no weaknesses[;] Thalin’s overall Subfactor 2 rating was acceptable[]”

and reiterated what constitutes an Acceptable rating. (Id.). Comparatively, the SSEB explained

that under Subfactor 2, Fury’s proposal “provides a solid plan for staffing the contract,”

warranting a Good rating. (AR 3144). The difference in explanation undermines the United

States’ argument that the SSEB provided a “sufficient record” for the Court. (Def.’s xMJAR at

33). Other offerors, like Fury, received rating explanations while Thalin did not. (AR 3144,

3153). The SSEB failed to articulate a reasonable and coherent rationale for Thalin’s Acceptable

rating as it did for other offerors.

Nonetheless, Thalin fails to show it was prejudiced by the failure to document its

evaluation under Subfactor 2. (Pl.’s MJAR at 29–30). To show prejudice, the plaintiff must

demonstrate it had a “substantial chance” of receiving the contract “but for” the agency’s errors.

Bannum, Inc., 404 F.3d at 1353. Importantly, “[a] protestor’s burden is higher for a negotiated

procurement because the contracting officer has broad discretion when engaging in an inherently

judgmental process.” Galen Medical Associates, Inc. v. United States, 369 F.3d 1324, 1331

(2004) (internal citation omitted).

Thalin fails to establish that but for this error, Thalin had a substantial chance of award.

(Pl.’s MJAR at 29). Specifically, Thalin argues the SSA improperly relied on the SSEB’s rating

to award Fury the contract. (Id. at 29–30). But Thalin overlooks the SSA’s own determination

that “Fury’s strengths, consistent with Fury’s higher rating, were more significant as compared to

Thalin’s.” (AR 3286). The SSA explicitly compared Fury and Thalin’s employee retention

strategies, noting Fury’s “indicates a significant advantage with respect to the retention of

incumbent employees and demonstrated a high monthly retention rate” whereas Thalin’s “did not

clearly address their approach to retaining current employees[.]” (Id.). Such language indicates

that the SSA exercised independent judgment and rationally determined Fury warranted a Good

rating while Thalin warranted an Acceptable rating. Again, Thalin merely disagrees with the Air

Force’s evaluation. (Pl.’s MJAR at 27–28).

Thalin also argues that Fury’s offer was higher than Thalin’s, so it would have

stood a substantial chance of award. (Id. at 29–30). This is unavailing. As stated above,

“[p]rocurement officials have substantial discretion to determine which proposal represents the

best value for the government[.]” E.W. Bliss Co., 77 F.3d at 449. The Air Force determined

12

Fury’s proposal provided the best value to the United States, even with its higher price.

Accordingly, the Court will not second guess the Air Force’s best value determination and

determines Thalin was not prejudiced by the documentation failure.

ii. The Air Force did not treat Thalin’s proposal unequally under Subfactor 2.

Even if Thalin could show prejudice from the SSEB’s failure to document, it cannot

adequately show unequal treatment. Thalin unconvincingly argues it suffered unequal treatment

because its rating remained Acceptable, while others’ ratings were increased after the SSEB

removed weaknesses. (Pl.’s MJAR at 27). The record contains no indication that Thalin’s

Acceptable rating was the result of unequal treatment. (See generally AR). It is true that Fury

initially received both a Good and an Acceptable rating by the technical evaluators, and a Good

rating by the SSEB once all but one of Fury’s weaknesses were removed. (AR 2764–65, 2769).

However, weakness removal does not automatically warrant an increased rating. The Solicitation

did not provide that an exact number of strengths or weaknesses would result in a specific rating,

(AR 939); see also Off. Design Grp. v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020)

(finding that unequal treatment must entail inconsistent application of an “objective solicitation

requirement”). 7 Instead, it provides that the rating system was qualitative not quantitative, and

subject to agency discretion. (Id.). Thalin fails to provide more than a mere disagreement with

the Air Force’s Subfactor 2 ratings. Accordingly, the SSEB failed to properly document its

evaluation of Thalin’s proposal under Subfactor 2, but Thalin was not prejudiced by the failure

nor the target of unequal treatment.

C. The Air Force’s Source Selection Decision was rational.

Thalin argues the source selection decision was arbitrary, irrational, and contrary to law

because the SSA relied on evaluation errors in her trade-offer analysis. (Pl.’s MJAR at 30–36).

Specifically, Thalin argues the SSA: (1) relied on an irrational rating for Subfactor 2 and

“continued to ignore Thalin’s [p]ast [p]erformance submission[;]” (2) assigned a factually

incorrect weakness to its staffing approach; and (3) failed to properly consider the strengths of

Thalin’s and weaknesses of Fury’s proposals. (Id.). Thalin concludes it was prejudiced by these

three errors. (Id. at 36–37).

The United States responds that the SSA did not adopt the SSEB’s errors and properly

considered and documented Thalin and Fury’s proposals. (Def.’s xMJAR at 34–41). First, the

United States argues the SSA properly considered the SSEB’s evaluation of Thalin’s proposal

and its underlying merits. (Id. at 35). Second, the United States argues the SSA identified higher

staffing risk in Thalin’s proposal compared to Fury’s proposal consistent with the Solicitation.

(Id. at 36–39). Third, the United States argues the SSA properly compared Thalin’s and Fury’s

proposals in its tradeoff analysis. (Id. at 39–41). For its part, Fury argues the SSA’s best value

7

The only language regarding number of strengths and weaknesses is that Unacceptable ratings

“contain[] one or more deficiencies,” Good ratings “contain[] at least one strength,” and

Outstanding ratings “contain[] multiple strengths[.]” (AR 939).

13

determination was rational, well-documented, and in accordance with the law. (Int.-Def.’s

xMJAR at 18–21). The Court is persuaded by the United States and Fury.

It is correct that the SSA must exercise independent judgment when making a source

selection decision. (Pl.’s MJAR at 30 (citing FAR 15.308) (permitting the SSA to “use reports

and analyses prepared by others,” but requiring “the SSA’s independent judgment.”)). Here,

there is ample evidence that the SSA exercised her independent judgment to determine Fury’s

proposal offered the best value to the Air Force. For example, the SSA documented that the

SSEB found—and her own analysis supported—that Thalin’s proposal created a “difficulty in

determining the roles BMA and Lunatek would each perform on the MARVel effort[,]”

warranting a Satisfactory rating. (AR 3282–83). In stark contrast, Fury’s past performance

“clearly” showed performance confidence and recent, relevant performances. (AR 3283–84).

Under Subfactor 2 as discussed above, the SSA explicitly compared Thalin and Fury’s staffing

approaches, concluding “I have assessed that Fury’s strengths, consistent with Fury’s higher

rating, were more significant as compared to Thalin’s.” (AR 3286). Such language indicates the

SSA conducted her own analysis of each proposal, thereby avoiding the SSEB’s documentation

deficiencies under Subfactor 2. The Court finds that the SSA exercised independent judgment for

Factor 2 and Subfactor 2 and did not rely on the SSEB’s “irrational ratings.”

Further, Thalin has not established that the SSA assigned a “factually incorrect”

weakness to Thalin’s staffing approach under Subfactor 2. (Pl.’s MJAR at 33–34) The SSA

determined Thalin’s proposal did not provide sufficient information on retaining current

employees indicating a high risk of employee turnover. (AR 3286). Thalin argues this finding

contradicts its strengths that include “recruiting and hiring actions[,]” “cross-training[,]”

telework options, and “Home-Grown Strategy,” all of which could help current employees’

career advancement. (Pl.’s MJAR at 33 (citing AR 3153)). However, this argument is unavailing.

The SSA specified that “Thalin did not clearly address their approach to retaining current

employees and this omission increases the risk associated with filling vacancies within [thirty]

days after award and indicates an increased potential for higher turnover.” (AR 3286). This

weakness does not contradict Thalin’s strengths. Rather, it shows that although Thalin addressed

current employees’ long-term careers, it did not account for more immediate employee retention.

The SSA’s finding also disproves Thalin’s argument that the SSA improperly relied on the

SSEB’s flawed evaluations because it identified an additional weakness, (Pl.’s MJAR at 36–37),

thereby demonstrating independent analysis.

Finally, the SSA properly considered both Thalin and Fury’s proposals to make the

source selection decision. As stated above, the Court will not second guess the discretionary

determinations of procurement officials during “minutiae of the procurement process[.]” E.W.

Bliss Co., 77 F.3d at 449. It is the Court’s role to determine whether the procurement was

“legally permissible, reasonable, and supported by the facts.” UnitedHealth Mil. & Veterans

Servs., LLC, 132 Fed. Cl. at 551. The Court cannot substitute its own judgment for that of the

agency. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. Here, the SSA analyzed both proposals and

even engaged in a one-to-one comparison of Thalin and Fury’s past performances and staffing

approaches under Factor 2 and Subfactor 2, respectively, to determine Fury provided the best

value to the Air Force. (AR 3286). Accordingly, the SSA’s source selection decision was

rational, well-documented, and in accordance with the law.

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D. Thalin failed to satisfy the requirements for injunctive relief.

Thalin seeks a permanent injunction to permanently stop Fury’s performance of the

contract and require the Air Force to reevaluate offerors’ proposals. (Pl.’s MJAR at 37–39).

However, granting a permanent injunction is considered an “extraordinary remedy[.]”

Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982). Such relief requires the plaintiff to

succeed on the merits of the case. PGBA, LLC v. United States, 389 F.3d 1219, 1228–29 (Fed.

Cir. 2004) (To issue permanent injunction, the court must consider whether (1) the plaintiff has

succeeded on the merits, (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.). As

explained above, Thalin fails on the merits. Therefore, Court is unable to award injunctive relief

and need not analyze the remaining three factors. Id.

III. Conclusion

Accordingly, the Court DENIES Thalin’s Motion for Judgment on the Administrative

Record, (ECF No. 34), and GRANTS the United States’ and Fury Solutions’ Cross-Motions for

Judgment on the Administrative Record, (ECF Nos. 35, 36).

The parties shall meet and confer and file a joint status report proposing redactions to this

memorandum opinion by June 7, 2023, to allow the Court to file a public version of the opinion.

The Clerk is DIRECTED to enter judgment for Defendants. Each party shall bear their

own costs.

IT IS SO ORDERED.

s/ David A. Tapp

DAVID A. TAPP, Judge

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