Glenn Defense Marine (Asia), PTE Ltd. v. United States , 720 F.3d 901 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
GLENN DEFENSE MARINE (ASIA), PTE LTD.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee,
AND
MLS-MULTINATIONAL LOGISTIC SERVICES LTD,
Defendant-Appellee.
______________________
2012-5125
______________________
Appeal from the United States Court of Federal
Claims in No. 11-CV-718, Judge Marian Blank Horn.
______________________
Decided: June 25, 2013
______________________
DAVID S. BLACK, Holland & Knight, LLP, of McLean,
Virginia, argued for plaintiff-appellant. With him on the
brief was GREGORY R. HALLMARK.
ARLENE PIANKO GRONER, Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
defendant-appellee, United States. With her on the brief
were STUART F. DELERY, Acting Assistant Attorney Gen-
2 GLENN DEFENSE MARINE v. US
eral, JEANNE E. DAVIDSON, Director, and MARTIN F.
HOCKEY, JR., Assistant Director.
SARAH M. GRAVES, Husch Blackwell, LLP, of Wash-
ington, DC, argued for defendant-appellee, MLS-
Multinational Logistic Services, LTD. With her on the
brief were WALTER A.I. WILSON, DANIEL J. DONOHUE and
CLAUDE P. GODDARD, JR.
______________________
Before MOORE, REYNA, and WALLACH, Circuit Judges.
Opinion for the court filed by Circuit Judge WALLACH,
Dissenting opinion filed by Circuit Judge MOORE.
WALLACH, Circuit Judge.
Glenn Defense Marine (Asia), PTE Ltd. (“GDMA”) ap-
peals from the order of the United States Court of Federal
Claims granting the motions of the government and MLS-
Multinational Logistic Services Ltd. (“MLS”) for judgment
on the administrative record. Glenn Defense Marine
(Asia), PTE Ltd. v. United States, 105 Fed. Cl. 541, 583
(Fed. Cl. 2012). 1 Because GDMA failed to establish that
the award of the contract to MLS was arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accord-
ance with law, we affirm the Court of Federal Claims.
BACKGROUND
The United States Navy, Naval Supply Systems
Command, Fleet Logistics Center Yokosuka (“Navy”)
solicited bids on November 3, 2009 for maritime husband-
1 Citations to the Court of Federal Claims decision
are from the redacted version issued for publication July
17, 2012. The opinion was issued under seal on May 25,
2012.
GLENN DEFENSE MARINE v. US 3
ing support services to Navy ships visiting ports in four
regions in the Western Pacific and Indian Ocean for
separate negotiated procurements. Offerors were in-
structed to submit separate proposals for each region in
which they sought a contract. The contract for each
region would be “Firm-Fixed-Price Indefinite-Delivery,
Indefinite-Quantity (IDIQ) type contract,” with a twelve-
month base period and four one-year options. Solicitation
No. N62649-09-R-0041 (“Solicitation”). The Solicitation
stated the Navy would award contracts to those proposals
that would be “most advantageous to the Government.”
Id. ¶ OP-1.1. The solicitation also stated that, “[t]he
following factors, in order of importance, shall be used to
evaluate acceptable offers: Technical Approach, Past
Performance, and Price. The non-price factors, when
combined, are significantly more important than price.”
Id. ¶OP-1.8. The Navy stated it “may accept other than
the lowest priced proposal.” Id. ¶OP-1.5.
Offerors were instructed to submit a Past Perfor-
mance Matrix, Past Performance Reference Information
4 GLENN DEFENSE MARINE v. US
Sheets, and other past performance information. 2 In its
Past Performance Matrix an offeror was required to list
“all directly related or similar Government or commercial
contracts or subcontracts currently being performed, or
completed in the past three years which are similar in
scope, magnitude[,] and complexity to that which is
detailed in this Solicitation.” Solicitation ¶ 5.2. Offerors
were also instructed to submit a Past Performance Refer-
ence Information Sheet identifying three to five individu-
als from the contracts listed in the Past Performance
Matrix to provide references. The Technical Evaluation
Board and the Past Performance Evaluation Team
(“Evaluation Team”) evaluated the offers using an adjec-
tival rating accompanied by a narrative to explain the
basis for the adjectival rating selected: “Outstanding,”
“Better,” “Satisfactory,” “Less than Satisfactory,” or
2 The Solicitation explains:
Past Performance is a measure of the degree to
which an offeror satisfied its customers in the past
by performing its contractual obligations on rele-
vant directly related contracts and subcontracts
(or partnerships or joint ventures) that are similar
in scope, magnitude, and complexity to that re-
quired by the solicitation (completed within the
past 3 years or currently in progress). There are
four areas to be reviewed: Level of Capability, Ef-
ficiency, and Effectiveness in Providing Service;
Conformance to the Terms and Conditions of the
Contract; Level of Reasonableness and Coopera-
tion; and Level of Commitment to Good Customer
Service. Under the Past Performance factor, each
of the areas to be reviewed will be given equal
consideration.
Solicitation at ¶ OP-18.2.1.
GLENN DEFENSE MARINE v. US 5
“Neutral.” These reports would be provided to the Procur-
ing Contracting Officer/Source Selection Authority who
would compare the strengths and weaknesses and make a
source selection decision. After all proposals were as-
signed a set of adjectival ratings, the Navy would engage
in negotiations with the offerors. After these negotiations
the Navy would determine which proposal provided the
best value to the Navy by engaging in a trade-off process.
The contract would be awarded to the best value pro-
posal. 3
3 48 C.F.R. § 15.101-1 states:
(a) A tradeoff process is appropriate when it may
be in the best interest of the Government to
consider award to other than the lowest priced
offeror or other than the highest technically
rated offeror.
(b) When using a tradeoff process, the following
apply:
(1) All evaluation factors and significant sub-
factors that will affect contract award and
their relative importance shall be clearly
stated in the solicitation; and
(2) The solicitation shall state whether all
evaluation factors other than cost or price,
when combined, are significantly more im-
portant than, approximately equal to, or
significantly less important than cost or
price.
6 GLENN DEFENSE MARINE v. US
On August 12, 2010, GDMA and MLS submitted their
proposals for the Region 1, South Asia, contract. The
Evaluation Team received responses to reference ques-
tionnaires from four of GDMA’s references and from one
contracting officer on a relevant contract. Each past
performance questionnaire asked the reference to provide
an overall rating of GDMA’s performance, a rating for
various subfactors, and left space for the reference to
provide additional comments. The Evaluation Team
determined that one of GDMA’s reference contracts was
highly relevant while the other three were moderately
relevant. For the highly relevant contract, reviewers gave
overall evaluations of “Better” or “Satisfactory.” The
Husbanding Branch Chief for the highly relevant contract
assessed GDMA’s overall performance as “Satisfactory.”
However, he gave GDMA a “Less than Satisfactory”
rating for several subfactors, including ease of communi-
cation, timely response to problems and ability to find
effective solutions, and performance within negotiated
price. J.A. 613. In the narrative comments the Husband-
ing Branch Chief noted that a number of pre-visit esti-
mates were received late, government specialists
routinely needed to request corrections, and email re-
sponses were routinely delayed. The review also noted
two past performance letters sent to GDMA: one for not
providing force protection barriers and the other for
failing to provide a proposed pricing plan. A reviewer of
one of the moderately relevant contracts indicated an
(3) This process permits tradeoffs among cost
or price and non-cost factors and allows
the Government to accept other than the
lowest priced proposal. The perceived
benefits of the higher priced proposal shall
merit the additional cost, and the ra-
tionale for tradeoffs must be documented
in the file in accordance with 15.406.
GLENN DEFENSE MARINE v. US 7
overall evaluation of “Outstanding,” but noted that
GDMA had received a past performance letter about their
customer service not being responsive.
In its initial summary report, the Evaluation Team
assigned GDMA an overall past performance rating of
“Satisfactory.” J.A. 536. In its report it cautioned that
although the references all gave GDMA overall ratings of
“Satisfactory” or better, those rating were not substanti-
ated with narrative comments, which instead provided
more support for the “Less than Satisfactory” ratings
assigned for several subfactors. The report referenced the
negative comments identified in the reviewers’ narratives:
non-responsiveness by customer service representatives,
late or incomplete pre-port visit estimates, a negative past
performance letter regarding force protection barriers,
failure to provide a pricing plan, delinquent payments,
and general non-responsiveness in communications.
On November 4, 2010, the Evaluation Team forward-
ed its assessments to the primary contracting officer who,
that same day, forwarded a draft of the pre-negotiation
Business Clearance Memorandum to a member of the
Contract Review Board (“Board”). The memorandum
assigned GDMA an overall performance rating of “Satis-
factory” but also reflected the concerns raised in the past
performance questionnaires. Glenn Defense Marine, 105
Fed. Cl. at 551. A Board member raised concerns with
the primary contracting officer over the “Satisfactory”
rating which, in his opinion, “appear[ed] dubious at best.”
Id. (internal quotation marks omitted). After discussing
the matter with the Evaluation Team, the primary con-
tracting officer responded that it was a borderline deci-
sion. Id. The Evaluation Team Chairman indicated to the
other reviewers that, in light of the Board member’s
concern about the “Satisfactory” rating, “[i]t may be easier
for us to adjust the ratings downward based on the cur-
rently available negative” comments, rather than attempt
to substantiate the “Satisfactory” rating. Id. (internal
quotation marks omitted).
8 GLENN DEFENSE MARINE v. US
Thereafter two Evaluation Team members submitted
revised ratings for GDMA, reporting an overall rating for
GDMA’s past performance as “Less than Satisfactory.” Id.
at 551–52. Their comments were similar to those in their
initial reviews, adding that the information was highly
relevant to the region and substantiated by specific and
detailed comments, and that the “[l]ack of effective man-
agement of subcontractors’ performance and controlling
contract cost had an overall effect on substandard busi-
ness practices of which savings to the Government was
[sic] not always maximized during port visits.” Id. at 552
(internal quotation marks omitted).
The Evaluation Team awarded MLS a past perfor-
mance rating of “Better,” with summary notes indicating
“[t]he offeror was very cooperative and committed to
customer service. This meant that the offeror’s past
performance record led to a strong expectation of custom-
er satisfaction and successful performance.” Id. (internal
quotation marks omitted). In each element of each area,
the Evaluation Team noted that there were no major
issues or weaknesses.
After initial evaluations were completed, a Business
Clearance Memorandum was drafted and the primary
contracting officer sent questions to both GDMA and MLS
and asked each to submit a final proposal. The primary
contracting officer raised eight past performance issues
with GDMA based upon comments in the questionnaires. 4
No past performance questions were asked of MLS. In
considering GDMA’s responses one reviewer noted that
the majority of the corrective actions could not be verified
4 These questions inquired about personnel respon-
siveness and communication difficulties, significant
differences in estimated prices and final invoices, failure
to provide purchasing plans, and failure to obtain re-
quired compensation for non-priced items.
GLENN DEFENSE MARINE v. US 9
and the responses did “not fully address the is-
sues/deficiencies although some of their responses seem
reasonable to resolve them.” Id. at 553 (internal quotation
marks omitted). The primary contracting officer stated
that GDMA’s “response to the past performance issue
about subcontractor management satisfactorily resolved
the concerns with that past performance issue. GDM[A]’s
response to the other 7 issues did not satisfactorily resolve
the past performance concerns raised by the [Evaluation
Team].” Id. (internal quotation marks omitted).
In the final evaluation both GDMA and MLS achieved
a Technical Approach rating of “Better” and a Security
Plan rating of “Acceptable.” Id. GDMA’s past perfor-
mance rating was “Less than Satisfactory,” while MLS’s
past performance rating was “Better.” However, MLS’s
price was $989,214.00 higher than GDMA’s price.
The primary contracting officer noted that GDMA and
MLS had relatively equal technical evaluations, but that
MLS’s past performance rating was higher; thus when
combining the non-price factors together, MLS was rated
higher than GDMA. Because of the difference in price, a
trade-off analysis was required to determine the best
value proposal. After performing the trade-off analysis,
the primary contracting officer concluded that MLS’s
proposal was the most advantageous and awarded MLS
the contract, Contract No. N62649-11-D-0015, on June 24,
2011.
GDMA filed a protest at the Government Accountabil-
ity Office (“GAO”) on July 5, 2011. GDMA argued, in
part, that the negative comments should not have been
weighted as heavily in evaluation of its past performance.
The GAO found that “‘the Navy reasonably concluded that
MLS’s past performance offered a clear advantage over
the past performance of GDMA, and the Navy reasonably
documented its decision to select MLS over GDMA for this
reason.”’ Id. at 556 (quoting In re Glenn Defense Marine-
Asia PTE, Ltd., B-402687.6; B-402687.7, 2011 WL
6947628, at *8 (Comp. Gen. Oct. 13, 2011) (“GAO Deci-
10 GLENN DEFENSE MARINE v. US
sion”)). GAO denied the protest. GDMA then filed its bid
protest with the Court of Federal Claims. The Court of
Federal Claims denied GDMA’s motion for judgment on
the administrative record and request for injunctive relief
and granted the Navy and MLS’s motion for judgment on
the administrative record. GDMA timely appealed to this
court, which has jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review the grant of a motion for judgment upon
the administrative record in bid protest actions de novo.
Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324,
1329 (Fed. Cir. 2004). In a bid protest case, the inquiry is
whether the agency’s action was arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law and, if so, whether the error is prejudicial. 28 U.S.C.
§1491(b)(4) (adopting the standard of 5 U.S.C. § 706); see
Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.
Cir. 2005). “The court’s task is to determine whether ‘(1)
the procurement official’s decision lacked a rational basis;
or (2) the procurement procedure involved a violation of
regulation or procedure.’” Savantage Fin. Servs., Inc. v.
United States, 595 F.3d 1282, 1285-86 (Fed. Cir. 2010)
(quoting Weeks Marine, Inc. v. United States, 575 F.3d
1352, 1358 (Fed. Cir. 2009)). “The arbitrary and capri-
cious standard applicable [in bid protests] is highly defer-
ential.” Advanced Data Concepts, Inc. v. United States,
216 F.3d 1054, 1058 (Fed. Cir. 2000).
Contracting officers “are entitled to exercise discretion
upon a broad range of issues confronting them in the
procurement process.” Impresa Construzioni Geom. Do-
menico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.
Cir. 2001) (internal quotation marks and citation omit-
ted). De minimis errors in the procurement process do not
justify relief. Grumman Data Sys. Corp. v. Dalton, 88
F.3d 990, 1000 (Fed. Cir. 1996). The protestor bears the
burden of proving that a significant error marred the
procurement in question. Id. The protestor’s burden is
greater in negotiated procurement, as here, than in other
GLENN DEFENSE MARINE v. US 11
types of bid protests because “‘the contracting officer is
entrusted with a relatively high degree of discretion.’”
Galen, 369 F.3d at 1330 (quoting Burroughs Corp. v.
United States, 617 F.2d 590, 597 (Ct. Cl. 1980)). “[T]he
greater the discretion granted to a contracting officer, the
more difficult it will be to prove the decision was arbitrary
and capricious.” Burroughs, 617 F.2d at 597. Moreover,
this court accords contracting officers an even greater
degree of discretion when the award is determined based
on the best value to the agency. E.W. Bliss Co. v. United
States, 77 F.3d 445, 449 (Fed. Cir. 1996). Ultimately, to
prevail in a bid protest, the protestor must show prejudi-
cial error. Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562
(Fed. Cir. 1996).
GDMA argues that the Navy’s best value determina-
tion and award of the Region 1 contract to MLS was
arbitrary and capricious due to its reliance upon the
Evaluation Team’s flawed evaluation of GDMA and MLS.
GDMA asserts that the Navy’s rating of GDMA’s past
performance as “Less than Satisfactory” and its rating of
MLS’s past performance as “Better” both lacked rational
bases and were inconsistent with the record evidence. In
addition, GDMA asserts that the Court of Federal Claims
misapplied the standard for determining prejudice. We
address each argument in turn.
I. The Navy’s Best Value Determination Was Not
Arbitrary And Capricious
“Procurement officials have substantial discretion to
determine which proposal represents the best value for
the government.” E.W. Bliss, 77 F.3d at 449. In this case,
the Navy’s best value decision is supported by the record
and well within the substantial discretion of the contract-
ing officials. After considering all of the offerors’ pro-
posals, references, and corrective actions, the Navy
reasonably determined that an award to MLS would
provide the best value. In particular, the Navy reasona-
bly compared the negative comments in GDMA’s relevant
references and GDMA’s inadequate corrective action to
12 GLENN DEFENSE MARINE v. US
the reviews of MLS, which contained no negative feed-
back. The contracting officer determined that although
there was a price difference between GDMA’s final pro-
posal and MLS’s final proposal, MLS had superior past
performance and would ultimately provide the best value
to the Navy. This was consistent with the Solicitation,
which expressly stated that non-price factors were signifi-
cantly more important than price. Even considering
price, the contracting officer reasonably found the real
cost to the Navy might actually be higher if the award
went to GDMA because of increased administration costs
resulting from GDMA’s documented non-responsiveness
in communications, late estimates, etc. 5 Based on the
record and recognizing the broad discretion courts afford
agencies in the negotiated procurement process, the
Navy’s best value determination was not arbitrary, capri-
cious, or in violation of law.
5 GDMA contends that the trade-off analysis does
not explain why an award to GDMA over MLS would
require enhanced contract oversight and management.
However, the primary contracting officer explained that
the increased costs may be necessary to mitigate risks
expected based upon GDMA’s past performance. Due to
GDMA’s documented lack of responsiveness, the primary
contracting officer deduced that a contract with GDMA
would require additional contract administration costs
from a recurring need for contracting officials to follow-up
with GDMA on material issues such as late pre-port cost
estimates, lack of response to correspondence, and pricing
issues. The primary contracting officer based his projec-
tion of future increased contract administration costs on
the follow-up needed with GDMA in the past. The prima-
ry contracting officer adequately explained the factors
considered.
GLENN DEFENSE MARINE v. US 13
II. GDMA’s Past Performance Evaluation Did Not
Lack Rational Basis
GDMA argues that the Navy’s past performance rat-
ing of “Less than Satisfactory” is inconsistent with the
record evidence because the references upon which the
Evaluation Team relied all rated GDMA’s overall perfor-
mance as “Satisfactory” or better. However, GDMA cites
no reason why the Navy should have only considered the
overall ratings and disregarded the subfactor ratings and
narrative comments. The Navy’s decision was rationally
based on its evaluation of all of the evidence before it.
Even though each reference rated GDMA’s performance
as “Satisfactory” or “Better” overall, the narrative com-
ments detracted from those ratings. The Navy reasonably
considered the entire record, including several “Less than
Satisfactory” subfactor ratings and negative comments
from the narrative portion of the questionnaires. 6 The
6 The dissent cites to the overall and subfactor rat-
ings as if these adjectival ratings can be added up and
“averaged out” to score the contractor. Dissent Op. 3-4.
However, these reports are not subject to a mathematical
calculation. The Evaluation Team considered the adjec-
tival ratings in light of the accompanying narrative
comments, which was within their discretion. E.W. Bliss,
77 F.3d at 449 (discussing the substantial discretion with
which procurement officials are entrusted to find the best
value for the government). Moreover, notwithstanding
the single positive comment the dissent cites, Dissent Op.
at 3–4, the reviewer also noted that GDMA’s “prices for
the non-contract are rather high and attempt to negotiate
the cost seem pointless.” J.A. 611. Additionally, she
commented that there were “[n]o major issues under the
purview of this contract except the DAO Representative
in India complained about their services during the USS
Shiloh and USS Lassen visit to GOA in Apr 10. He com-
plained about GDMA’s inability to provide pier side force
protection services utilizing containers. The pier area
14 GLENN DEFENSE MARINE v. US
evaluation Team’s report stated that “[o]verall, [GDMA]
was less than fully cooperative and did not demonstrate a
commitment to service.” Glenn Defense Marine, 105 Fed.
Cl. at 554 (internal quotation marks omitted). The pri-
mary contracting officer observed that the majority of
GDMA’s re-visit estimates for port visits were received
late and repeatedly required corrections. He also indicat-
ed that GDMA had failed to provide force protection
barriers as specified by the ships in their order. In anoth-
er instance, GDMA failed to provide a pricing plan, which
was necessary to insure that non-priced items were fairly
and reasonably priced. Finally, the primary contracting
officer noted routine delays in GDMA’s responses to
questions, which “exacerbate[d] the short lead time for
arranging port visit services.” Id. at 566 (internal quota-
was not cordoned off appropriately.” Id. At any rate, our
role is not to search for statements that could support a
reversal, but rather, to determine whether there was a
rational basis for the Navy’s decision.
GLENN DEFENSE MARINE v. US 15
tion marks omitted). 7 The Evaluation Team’s final Sum-
mary Report for GDMA indicated:
7 The primary contracting officer’s notes stated:
1-6 of 9 pre-visit estimates for port visits cov-
ered by this contract from 27 OCT 09–present
were received late. In addition, the contract spe-
cialists at FISC Det. Singapore routinely have to
request corrections to the PCEs received for port
visits (e.g. not all items requested in the LOGREQ
[logistical requirements] are included in the PCE
[pre-visit cost estimates]).
2-A negative past performance letter regard-
ing the USS LASSEN and USS Shiloh port visits
to Goa, India was sent to GDMA on 6 July 10.
GDMA did not provide force protection barriers as
specified by the ships in their ordering LOGREQs.
A complaint from State Department personnel in
Goa led to the issuance of this past performance
letter.
3-A negative past performance letter regard-
ing performance under this contract was sent to
GDMA on 14 JUN 10. GDMA has not provided a
proposed pricing plan for insuring that non-priced
items are offered at fair and reasonable prices.
This pricing plan is a deliverable specified under
this contract. Fair and reasonable pricing for non-
priced items is an unresolved issue under this
contract. The FISC Det. Singapore office has yet
to receive competitive price quotations for any
non-priced services provided under this contract.
16 GLENN DEFENSE MARINE v. US
For Region 1, [GDMA’s] past performance on pre-
viously awarded relevant contracts did not meet
some significant requirements. Although the offe-
ror was generally responsive to changes in re-
quirements, provided timely services and had
reasonably good control over managing subcon-
tractors, there were several noted deficiencies in
its performance when it came to the reliability
and consistency of its customer service practices,
transparency in pricing and ease of communica-
tions.
Id. at 554.
Moreover, the Navy’s rating was not premised on
these references alone. Before the Navy’s final rating, the
Navy gave GDMA an opportunity to respond to specific
concerns. GDMA acknowledged those issues and ex-
plained it had taken or was in the process of taking cor-
rective action. The Navy conducted a follow-up review
and found that these corrective actions had not adequate-
ly addressed its concerns. In considering GDMA’s correc-
tive action in response to the negative reviews, the
reviewer found GDMA’s corrective action “lacked suffi-
cient details for the [Evaluation Team] to determine the
offeror’s effectiveness in addressing the deficiencies.” Id.
In sum, GDMA’s past performance record led the Evalua-
tion Team “‘to expect marginal customer satisfaction and
less than fully successful performance.’” Id. (quoting the
Evaluation Team’s Summary Report).
4-Email responses from GDMA representa-
tives to questions from the FISC Det. Singapore
contract specialists are routinely delayed. The de-
layed responses exacerbate the short lead time for
arranging port visit services.
Glenn Defense Marine, 105 Fed. Cl. at 566.
GLENN DEFENSE MARINE v. US 17
Based upon the broad discretion courts afford agen-
cies in the procurement process and based upon the
ratings and comments in the past performance question-
naires, the analysis and review performed by the Evalua-
tion Team and the contracting officer, as well as the
discussions between GDMA and the Navy, this court
cannot conclude that the overall past performance rating
of “Less than Satisfactory” lacked rational basis. The
Navy established a rational basis for its decision, explain-
ing that a higher rating was not substantiated by the
comments, and the agency’s reasonable interpretation of
the facts is entitled to considerable deference.
III. MLS’s Past Performance Evaluation Did Not Lack
Rational Basis
GDMA asserts that the Navy’s rating of MLS’s past
performance as “Better” was arbitrary and capricious on
the grounds that the “underlying finding” that the con-
tracts of MLS’s subcontractors were highly relevant lacks
a rational basis. GDMA asserts that the Evaluation
Team could not provide a rational basis for finding the
contracts performed by MLS’s subcontractors were of
similar scope, magnitude, and complexity to that in the
Solicitation because the record is incomplete.
The Solicitation stated that “[p]ast [p]erformance is a
measure of the degree to which an offeror satisfied its
customers in the past by performing its contractual obli-
gations on relevant directly related contracts and subcon-
tracts . . . that are similar in scope, magnitude, and
complexity to that required by the solicitation. . . .” Solici-
tation ¶ OP-1.8.2.1. It also stated that “[i]n the case of an
offeror whose past performance is somehow not similar in
scope, complexity, or magnitude, or otherwise lacks rele-
vance to some degree then the Government will take this
into consideration and evaluate accordingly . . ..” Id. ¶ OP-
1.8.2.4.
MLS’s subcontracts involved husbanding services at
many of the same ports covered by the Solicitation, for a
18 GLENN DEFENSE MARINE v. US
variety of vessels of various sizes that “‘spend the majori-
ty of their useful life traveling from port to port,’” similar
to the services required by this Solicitation. Glenn Defense
Marine, 105 Fed. Cl. at 575 (quoting GAO Decision at *8).
The Navy’s determination of relevance is owed deference
as it is among “the minutiae of the procurement process,”
which this court “will not second guess.” E.W. Bliss, 77
F.3d at 449 (finding matters such “as technical ratings
and the timing of various steps in the procurement” to
involve discretionary determinations); see also Linc Gov’t
Servs., LLC v. United States, 96 Fed. Cl. 672, 718 (2010)
(“Thus, when evaluating an offeror’s past performance,
the [Source Selection Authority] may give unequal weight,
or no weight at all, to different contracts when the [Source
Selection Authority] views one as more relevant than
another.”) (internal quotation marks and citations omit-
ted); PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520,
539 (2010) (“At the outset, it is important to note that
what does or does not constitute ‘relevant’ past perfor-
mance falls within the [Source Selection Authority’s]
considered discretion.”).
Additionally, the Court of Federal Claims noted that
there is no evidence that MLS’s past performance would
have been evaluated any lower than “Better” if the sub-
contractors’ references were given less weight. The
Evaluation Team’s summary report indicated that:
The offeror was very responsive to customer ser-
vice issues, provided timely services, flexible when
responding to changes in requirements, main-
tained control over managing subcontractors, was
transparent in its pricing processes and was effec-
tive in communications. Overall, the offeror was
very cooperative and demonstrated a commitment
to customer service. There were no substantiated
problems or issues documented in this past per-
formance assessment. Therefore, based upon the
offeror’s past performance record, it leads the
GLENN DEFENSE MARINE v. US 19
[Evaluation Team] to expect a strong customer
satisfaction and fully successful performance.
Glenn Defense Marine, 105 Fed. Cl. at 555 (quoting the
Evaluation Team’s Summary Report). 8 Accordingly, the
Court of Federal Claims’ determination did not lack
rational basis.
IV. GDMA Did Not Allege Prejudicial Error
If GDMA had prevailed in showing error in the award
to MLS, it would also bear the burden of showing that
error was prejudicial. As discussed above, the Navy’s past
performance evaluations were rationally based. Moreo-
8 GDMA also argues that the Court of Federal
Claims improperly relied on the Navy’s submissions to
GAO, which it argues are post hoc rationalizations, to
support its decision. The Navy’s submissions to the GAO
were those required by 31 U.S.C. § 3553(b)(2), and includ-
ed an articulation of the agency’s reasoning in response to
the protest. All of the materials submitted to the GAO
are part of the administrative record before the Court of
Federal Claims. 31 U.S.C. § 3556. In a case involving a
post-award conflict of interest investigation and analysis,
this court noted that courts “reviewing bid protests rou-
tinely consider . . . evidence developed in response to a bid
protest.” Turner Constr. Co. v. United States, 645 F.3d
1377, 1386 (Fed. Cir. 2011). The Court of Federal Claims
cited these submissions to support its finding that the
subcontractors’ references were highly relevant because
they required services that were “similar in scope, magni-
tude, and complexity.” Glenn Defense Marine, 105 Fed. Cl.
at 573–74 (internal quotation marks omitted). Even if the
submissions were not appropriately considered, based
upon the high ratings on all of the references and only
positive comments, the Navy’s rating of MLS’s past per-
formance does not lack a rational basis.
20 GLENN DEFENSE MARINE v. US
ver, the Court of Federal Claims was correct in finding
that GDMA was not prejudiced by receiving a “Less than
Satisfactory” rating, as opposed to a “Satisfactory” rating.
To prevail in a bid protest case, the protestor must
show that it was prejudiced by the government’s actions.
Bannum, 404 F.3d at 1351. To establish prejudice, GDMA
must show that there was a substantial chance it would
have received the contract award but for the Navy’s
allegedly erroneous past performance rating. See id. at
1358; Allied Tech. Grp., Inc. v. United States, 649 F.3d
1320, 1326 (Fed. Cir. 2011); Statistica, Inc. v. Christopher,
102 F.3d 1577, 1582 (Fed. Cir. 1996). Unlike other issues
in this case, prejudice is a question of fact that this court
reviews for clear error. Bannum, 404 F.3d at 1353–54.
The Court of Federal Claims found that even if
GDMA should have gotten a “Satisfactory” rating instead
of “Less than Satisfactory” for past performance “it is not
at all clear a trade-off analysis would have resulted in
[GDMA] receiving the contract award.” Glenn Defense
Marine, 105 Fed. Cl. at 572. The court explained: “Even
with a Satisfactory rating for past performance, [GDMA]
still would have had an inferior past performance rating
as compared to MLS, and still would have had negative
past performance comments in the record, which [GDMA]
did not challenge.” Id. at 571. GDMA does not provide
anything but conjecture that even with a “Satisfactory”
rating it would have had a substantial chance of prevail-
GLENN DEFENSE MARINE v. US 21
ing in the bid. 9 The Court of Federal Claims did not
clearly err in finding GDMA had not shown prejudice
from being rated “Less than Satisfactory” rather than
“Satisfactory.”
CONCLUSION
Accordingly, the Court of Federal Claims’ decision is
affirmed.
AFFIRMED
9 GDMA asserts that the court erred in “[r]equiring
GDMA to establish that it is ‘clear’ that a trade-off analy-
sis would have resulted in GDMA receiving [an] award.”
Appellant’s Br. at 64. Contrary to GMDA’s argument, the
Court of Federal Claims did not require it to show it
would ‘clearly’ have received the contract award but for
the alleged error. Rather, the Court of Federal Claims
stated that “it is not at all clear” that GDMA would have
received the contract award but for the past performance
rating. It thoroughly recited the “substantial chance”
standard in its standard of review section, see Glenn
Defense Marine, 105 Fed. Cl. at 558-59, and applied that
standard in its analysis of the facts.
United States Court of Appeals
for the Federal Circuit
______________________
GLENN DEFENSE MARINE (ASIA), PTE LTD.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee,
AND
MLS-MULTINATIONAL LOGISTIC SERVICES LTD,
Defendant-Appellee.
______________________
2012-5125
______________________
Appeal from the United States Court of Federal
Claims in No. 11-CV-718, Judge Marian Blank Horn.
______________________
MOORE, Circuit Judge, dissenting.
The majority in this case affirms the decision by the
Court of Federal Claims granting judgment on the admin-
istrative record in favor of the government. I dissent
because the court erred by concluding that the U.S. Navy
had a rational basis for finding that Glenn Defense Ma-
rine (Asia), PTE Ltd. (GDMA) deserved an overall rating
of “Less than Satisfactory” for its past performance. That
rating lacks a rational basis, both legally and mathemati-
cally. All of GDMA’s references rated its past perfor-
mance as “Outstanding,” “Better,” or “Satisfactory.”
2 GLENN DEFENSE MARINE v. US
As part of the U.S. Navy’s process of awarding a con-
tract for maritime husbanding services in the South Asia
region, a Past Performance Evaluation Team (PPET)
evaluated the offerors’ past performance. The PPET was
instructed to use adjectival ratings: “Outstanding,” “Bet-
ter,” “Satisfactory,” “Less than Satisfactory,” or “Neutral.”
Four of GDMA’s references provided feedback regard-
ing its past performance. The PPET determined that one
of the prior contracts, the South Asia contract, was highly
relevant to the contract at issue while the other three
were moderately relevant. Of the moderately relevant
contracts, two reviewers rated GDMA as “Outstanding”
while the third gave it a rating of “Better.” The reviewer
for the highly relevant contract rated GDMA as “Better.”
The PPET received a second questionnaire regarding the
South Asia contract from the contracting officer, who
rated GDMA as “Satisfactory.” The chart below summa-
rizes the references’ overall ratings of GDMA’s past
performance.
Reference Overall Rating
South Asia Contract
First Reference Better
Second Reference Satisfactory
Thailand Contract Better
Singapore Contract Outstanding
BIMET Contract Outstanding
Despite these high past performance ratings, the
PPET gave GDMA an overall past performance rating of
“Satisfactory.” This seems inconsistent with the ratings
themselves. Even more perplexingly, based on no new or
GLENN DEFENSE MARINE v. US 3
additional information, the PPET later revised GDMA’s
past performance rating downward to “Less than Satis-
factory.” The purported basis for such a low rating was
negative comments that some of GDMA’s references
included in the past performance questionnaires they
submitted. GDMA’s references, however, did not them-
selves believe that their own negative comments warrant-
ed such a low rating. And GDMA’s references were
uniquely positioned to consider the appropriate impact to
give their own negative comments on GDMA’s overall
rating, given their interaction with GDMA over the course
of the contracts at issue. The PPET group, which decided
to give GDMA a less than satisfactory rating, based their
decision exclusively on these references; they had no
additional or independent information which would
warrant lowering the ratings. GDMA received two “Out-
standing,” two “Better,” and one “Satisfactory” rating. In
what universe do these ratings average out to an overall
rating of “Less than Satisfactory”? The Navy lacked a
rational basis for giving GDMA a lower rating than any of
the company’s references and for weighing the negative
comments on the questionnaires far more heavily than
the references themselves did.
It is important to understand that each of these re-
views had an overall past performance rating, nine sub-
category ratings, and a section for comments. It is true
that one of the two reviewers for the South Asia contract
listed a number of problems that he encountered with
GDMA in the performance of the contract. Even this
reviewer, who rated GDMA “Satisfactory” overall, gave
GDMA one “Better,” four “Satisfactory,” and four “Less
than Satisfactory” subcategory ratings. And the primary
reviewer for the South Asia contract, who gave GDMA a
“Better” overall rating for the same contract, gave GDMA
four “Outstanding,” four “Better,” and one “Satisfactory”
rating for the same nine subcategory rating criteria. This
reviewer noted in her comments some of the same prob-
lems, but also included positive comments such as, “[t]hey
are very professional and their staff are very knowledgea-
4 GLENN DEFENSE MARINE v. US
ble and experience[d].” She further explained that, “[t]he
ports in South Asia ha[ve] limited infrastructure and
GDMA has the ability to support a carrier visit to Chen-
nai with limited services available.” In the other three
contracts, there were a total of twelve “Outstanding,” six
“Better,” and one “Satisfactory” subcategory rating. In
light of this record, PPET did not have a rational basis for
rating GDMA “Less than Satisfactory” overall for past
performance.
PPET did its own cumulative version of the nine sub-
category rating criteria, and its conclusions regarding the
subcategories seem just as divorced from the underlying
data as the overall ratings. For example, the PPET gave
GDMA an overall rating of “Satisfactory” for the subfactor
“Reliability and consistency of the company’s key person-
nel.” The individual ratings for this subfactor, however,
were three “Outstanding” ratings, one “Better,” and one
“Satisfactory.” Similarly, for the subfactor of “Timeliness
in providing goods and/or services in accordance with the
contract schedule,” the PPET rated GDMA as “Satisfacto-
ry” even though GDMA’s references gave it three “Out-
standing” ratings, one “Better,” and one “Satisfactory.”
GDMA’s past performance was not flawless, as the
ratings clearly reflect. Certainly this record would have
supported a past performance rating of “Better” or maybe
even “Satisfactory,” but there is no rational basis for
PPET’s decision to rate GDMA “Less than Satisfactory.”
GDMA was one of only two bidders in the competitive
range, and its price was roughly 64% lower than the other
bidder. GDMA was rated equal to the other bidder on
every factor except past performance, where the other
bidder received a rating of “Better.” Based on GDMA’s
lower price and equivalency in other areas, I believe that
it would have had a substantial chance to receive the
contract but for the Navy’s errors regarding past perfor-
mance. See Bannum, Inc. v. United States, 404 F.3d 1346,
1351 (Fed. Cir. 2005). Therefore, I dissent.