Csc Government Solutions LLC v. United States , 129 Fed. Cl. 416 ( 2016 )

In the United States Court of Federal Claims
No. 16-1000C
(Filed Under Seal: November 22, 2016)
(Reissued: December 2, 2016)
)
CSC GOVERNMENT SOLUTIONS ) Post-award bid protest of an IT contract;
LLC, ) cost-realism analysis; application of FAR
) § 52.222-46 to realism of proposed
Plaintiff, ) salaries with regard to program continuity,
) retention of professional employees, and
v. ) “uninterrupted high-quality work;”
) consistency of the agency’s cost-price and
UNITED STATES, ) technical evaluations; past performance
) evaluation; discussions
Defendant, )
and )
)
HP ENTERPRISE SERVICES LLC, )
)
Defendant-Intervenor. )
)
)
Kevin P. Mullen and J. Alex Ward, Morrison & Foerster LLP, Washington, D.C. for
plaintiff. With them on the briefs and at the hearing was Sandeep N. Nandivada, Morrison &
Foerster LLP, Washington, D.C. Also with them on the briefs were Catherine L. Chapple and
Richard J. Vacura, Morrison & Foerster LLP, Washington, D.C.
Peter A. Gwynne, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C. for defendant. With him on the briefs and at the
hearing were Michael G. McCormack, Senior Trial Attorney, and Matthew J. Ruane, Attorney
Advisor, United States Air Force. Also with him on the briefs were Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director,
and Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C.
Kevin J. Maynard, Wiley Rein LLP, Washington, D.C. for defendant-intervenor. With
him on the briefs and at the hearing were Jon W. Burd, George E. Petel, Gary S. Ward, and Tara
L. Ward, Wiley Rein LLP, Washington, D.C. Also with him on the briefs was Rand L. Allen,
Wiley Rein LLP, Washington, D.C.
OPINION AND ORDER1
LETTOW, Judge.
This post-award bid protest arises from a solicitation by the United States Department of
the Air Force, United States Strategic Command (“USSTRATCOM” or “government”) for the
Information Technology Capabilities Contract II (“ITCC II”). The ITCC II contract provides for
information technology (“IT”) capabilities and services at USSTRATCOM’s current
headquarters at the Curtis E. LeMay Building in Omaha, Nebraska, as well as for transitioning IT
services at some time after the second year of the contract to USSTRATCOM’s future
headquarters at the Command and Control Facility (“C2F”), also located in Omaha. Following
several rounds of proposals and evaluations, the government awarded the ITCC II contract to HP
Enterprise Services, LLC (“HPES”) on April 18, 2016. CSC Government Solutions LLC
(“CSC”), the incumbent contractor and also an offeror on the ITCC II contract, initially protested
this award at the Government Accountability Office (“GAO”), challenging the government’s
evaluation of the offerors’ proposals and past performance and alleging that the government
conducted misleading and coercive discussions with CSC. On August 10, 2016, GAO denied
CSC’s protest on all grounds. CSC subsequently filed a bid protest in this court on August 12,
2016.
CSC now seeks an injunction against the award to HPES, reasserting its argument that
the government engaged in misleading, unequal, and coercive discussions, and further arguing
that USSTRATCOM failed to properly evaluate the proposals of HPES and another offeror,
[***], particularly in its cost realism analyses and evaluations of the offerors’ phase-in plans for
staffing and retention. Pending before the court are the parties’ cross-motions for judgment on
the administrative record. A hearing was held on October 26, 2016.
For the reasons stated, the court has concluded that the plaintiff’s motion should be
denied and the government’s and defendant-intervenor’s motions should be granted.
FACTS2
A. USSTRATCOM: Background and IT Needs
1
Because this opinion and order might have contained confidential or proprietary
information within the meaning of Rule 26(c)(1)(G) of the Rules of the United States Court of
Federal Claims (“RCFC”) and the protective order entered in this case, it was initially filed under
seal. The parties were requested to review this decision and provide proposed redactions of any
confidential or proprietary information. The resulting redactions are shown by brackets
enclosing asterisks, e.g., “[***].”
2
The recitations that follow constitute findings of fact by the court drawn from the
administrative record of the procurement filed pursuant to RCFC 52.1(a). See Bannum, Inc. v.
United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005) (specifying that bid protest proceedings
“provide for trial on a paper record, allowing fact-finding by the trial court”).
2
USSTRATCOM is “one of nine unified combatant commands in the Department of
Defense.” Def.’s Resp. in Opp’n to Pl.’s Mot. for Judgment on the Administrative Record and
Def.’s Cross-Mot. for Judgment on the Administrative Record (“Def.’s Cross-Mot.”) at 4, ECF
No. 48. It “conduct[s] global operations” for and with the Department of Defense and
government agencies to “deter and detect strategic attacks against the U.S. and its allies, and be
prepared to defend the nation as directed.” AR 4-689.3 The headquarters of USSTRATCOM is
located at the Curtis E. LeMay Building in Omaha, Nebraska. Am. Compl. ¶ 6. A new
headquarters, C2F, is under construction and is expected to be completed during the performance
of the ITCC II contract. See Am. Compl. ¶ 11; AR 5a-829.
To carry out its mission, USSTRATCOM requires “numerous information technology
(IT) systems of various classification levels.” AR 4-689. Its specific IT requirements include:
“command and control, robust nuclear and conventional planning and planning support tools,
integrated shared awareness portals, real-time web-enabled reporting vehicles, and several
collaborative voice and video capabilities spanning all levels of classification.” Id.
USSTRATCOM’s IT contractor thus provides crucial support services to the agency, including
“[o]perations [and] [m]aintenance, systems engineering, and program management.” Id. CSC is
the incumbent IT contractor for USSTRATCOM under the first ITCC contract (“ITCC I”). Am.
Compl. ¶ 6. Its specific responsibilities include: “managing desktops, servers, networks, and
related functional services; reducing the cost to USSTRATCOM of delivering desktop, server,
and network services; and facilitating IT management through the evolution of a more common
IT environment [to] enhance[e] system and product interoperability.” Am. Compl. ¶ 7.
B. The Solicitation of the ITCC II Contract
After consulting with industry professionals for over a year, see AR Tab 3; Def.’s Cross-
Mot. at 5, USSTRATCOM issued its Source Selection Plan for the ITCC II contract on June 30,
2014 and issued its Request for Proposals (“RFP”) (solicitation number FA4600-14-R-0017) on
October 1, 2014. AR Tabs 4-5.4 The solicitation contemplated the award of a single contract
with multiple contract line item (“CLIN”) types, including firm-fixed-price, cost-plus-incentive-
fee, cost-plus-fixed-fee, and no-fee cost reimbursable. AR 5a-802. The contract covers a ten-
year period, with a one-year base period and nine additional option years. AR 5a-950. The base
year includes a three-month phase-in period and a nine-month full-performance period. Id.
The ITCC II contract at issue here is a continuation of the services provided by CSC
under the ITCC I contract. Def.’s Cross-Mot. at 4. The specific objectives of the contract are to:
3
Citations to the administrative record refer to the record as filed on August 26, 2016 and
corrected on August 29, 2016 and October 3, 2016. The record is paginated sequentially and is
also divided into tabs. In citing to the administrative record, the court will first designate the tab,
followed by the page number, e.g., AR 4-689 refers to page 689, which is located in tab 4 of the
record.
4
The solicitation was amended eight times between October 17, 2014 and June 12, 2015
for reasons unrelated to the instant protest. See AR Tab 5e; see also AR 1-6 to -8.
3
1) provide high-quality IT services to USSTRATCOM.
2) provide IT capabilities that meet mission standards where appropriate, and industry
standards elsewhere.
3) provide the IT capabilities necessary for customers to perform their operational
mission.
4) reduce the cost to USSTRATCOM of delivering services.
5) permit the contractor maximum flexibility in implementing IT to satisfy cost, schedule,
and performance parameters.
6) maintain high customer satisfaction.
7) facilitate IT management through the evolution of a more common IT environment,
thereby enhancing system and product interoperability.
8) [m]aintain required IA standards.
AR 5a-804. The contractor is thus expected to continue the same types of support services
provided under the ITCC I contract, specifically “[p]rogram [m]anagement,” “IT [o]perations
and [m]aintenance,” “[e]ngineering,” and “[a]pplications [s]upport.” AR 5a-805. The contract
also contemplates undertaking and completing USSTRATCOM’s transition to its new
headquarters during the life of the contract. See AR 5a-829. The contractor is responsible for
maintaining IT services in the old facility during the transition, and continuing these services in
the new building once the transition is complete. AR 5a-804, -29.
The evaluation criteria in Section M of the RFP stated that the government would
conduct a “best value” analysis and award the contract based on an assessment of three factors:
“[t]echnical [a]pproach/[t]echnical [r]isk,” “[p]ast [p]erformance,” and “[c]ost/[p]rice.” AR 5a-
971 to -72. Past performance and technical risk were deemed to be of equal importance, and the
cost-price factor was more important than the past performance and technical-risk factors
combined. See AR 5a-971. Therefore, all offerors “found to have presented an [a]cceptable
technical approach without [h]igh [r]isk” would be considered equally, and the contract would be
awarded to the offeror with the lowest price. See id.; Am. Compl. ¶¶ 35-36. USSTRATCOM
also reserved the right to select the second-lowest-priced offer (within 5% of the lowest priced
offer) if the lowest priced offer did not present the “best value” and the second lowest offer
“present[ed] [s]ubstantial [c]onfidence and [l]ow [t]echnical [r]isk in all sub-factors.” AR 5a-
971 to -72. Additionally, the government retained discretion to select an offer which was priced
more than 5% above the lowest-priced offer if the higher-priced offer “present[ed] a remarkably
better value proposal in terms of its past performance record and/or plan for dealing with,
mitigating or eliminating program risk.” AR 5a-972.
In the RFP, the government indicated that it would potentially award the contract without
discussions with the offerors. AR 5a-971. If discussions were deemed necessary, the
government would only hold them with “those offerors determined to be in the competitive
range.” Id. The government retained discretion over whether an offeror was in the competitive
range, and could eliminate an offeror from consideration during the course of discussions even if
it was initially determined to be in the competitive range. Id. Discussions would “include
issuance of evaluation notices,” and each offeror remaining in consideration at the conclusion of
discussions would have the “opportunity to submit a Final Proposal Revision (FPR).” Id.
4
1. The technical-approach/technical-risk evaluation factor.
The RFP outlined five sub-factors within the technical-approach/technical-risk evaluation
factor: (1) Technical, (2) Management Approach, (3) IT Systems Optional Tasks, (4)
Engineering, and (5) Small Business Participation Plan. AR 5a-972. The Technical sub-factor
involved an assessment of the offerors’ “capability to perform IT Operations and Maintenance in
a large multi-classified operational environment,” specifically in the areas of: (1) “service
center,” (2) “end user provisioning,” (3) “network services,” (4) “servers,” and (5) “enterprise
database services.” AR 5a-957. The Management Approach sub-factor involved the evaluation
of three aspects of the offerors’ program management approach: (1) the “phase-in” plan, (2)
“staffing, security clearances, certifications and skillsets,” and (3) day-to-day program
management. AR 5a-957 to -58. The IT Systems Optional Tasks sub-factor primarily would
assess the offerors’ plans for transitioning USSTRATCOM’s IT capabilities to the new C2F
headquarters. AR 5a-958 to -59. This sub-factor also involved the evaluation of the operation
and maintenance of USSTRATCOM’s command and control phone-switching system, as well as
the potential transition of unclassified LAN services, “[u]nclassified and/or [s]ecret LAN
SharePoint hosting services,” and classified e-mail services to a provider other than the ITCC II
contractor. AR 5a-959. The Engineering sub-factor would assess the “internal processes for
engineering requirements and project management, technical solution development, testing and
implementation/integration.” Id. Finally, the Small Business Participation Plan sub-factor
would evaluate “the offeror’s identification of and commitment to small business in contract
performance on the ITCC II program” in accord with the government’s goals for small business
participation in subcontracts. AR 5a-959 to -60.
Each sub-factor would receive a rating for both technical approach and technical risk.
AR 5a-972. The technical-approach rating would “reflect[] the degree to which the proposed
approach meets or does not meet the minimum requirement” for the sub-factor. Id. Technical
approach would be rated as either “Acceptable” or “Unacceptable,” and any proposal that
received an “Unacceptable” rating for one or more sub-factors would receive an overall
“Unacceptable” rating for the technical-approach evaluation factor. Id. The technical-risk rating
would assess the weaknesses of each offeror’s proposal for each sub-factor, considering the
“potential for disruption of schedule, increased costs, degradation of performance, the need for
increased [g]overnment oversight, or the likelihood of unsuccessful contract performance.” AR
5a-973. Each sub-factor would receive a technical-risk rating of Low (the most favorable
rating), Moderate, or High. Id. Any proposal with a technical-risk rating of High for any sub-
factor would be deemed ineligible to be awarded the ITCC II contract. Id.
2. The past performance evaluation factor.
The past performance evaluation factor would assess “related contracts from each
offeror” to make an “overall assessment of the [g]overnment’s confidence that the offeror will
successfully perform this contract.” AR 5a-974. Each offeror had to submit at least three
performance references with its proposal, but the government would “not evaluate more than six
offeror provided references.” Id. The government also reserved the right to obtain and assess
offeror past performance data from other sources, such as the Past Performance Information
5
Retrieval System (“PPIRS”), other government databases, interviews with former program
managers and contracting officers, and commercial sources. Id.
In evaluating this factor, the government would first determine whether each contract
submitted as a past performance reference met recency requirements, specifically that it was
performed on or after June 1, 2011 and that the performance was at least one year in length as of
the submission of the reference to USSTRATCOM. AR 5a-974. The government would next
assess the relevancy of each reference “as it relates to the scope, magnitude, and complexity of
efforts described in the ITCC II solicitation.” Id. The relevancy of each reference would be
assessed under the following four sub-factors, which mirror the technical-approach/technical-risk
sub-factors: (1) Technical, (2) Management Approach, (3) Engineering, and (4) Small Business
Participation. AR 5a-974 to -75. Each sub-factor, as well as the reference as a whole, would
receive one of the following relevancy ratings: Very Relevant, Relevant, Somewhat Relevant, or
Not Relevant. AR 5a-976. Finally, each sub-factor and the reference as a whole would receive a
qualitative performance rating of Exceptional, Very Good, Satisfactory, Marginal,
Unsatisfactory, or Not Applicable. AR 5a-976 to -77. Upon integrating the analyses for
recency, relevancy, and performance, the government would assign each offeror one of five
confidence assessments for the past performance factor: Substantial Confidence, Satisfactory
Confidence, Unknown Confidence (Neutral), Limited Confidence, or No Confidence. AR 5a-
977.
3. The cost-price evaluation factor.
The RFP stated that the cost-price evaluation factor would be “assessed for fairness and
reasonableness.” AR 5a-978. The reasonableness assessment would determine whether the
offeror’s price was “a price that a prudent and competent buyer would be willing to pay, given
data on competition, supply and demand, and general economic conditions.” Id. The price
evaluation would also include an assessment of the offerors’ plans for compensating professional
employees in accord with 48 C.F.R. [Federal Acquisition Regulation (“FAR”)] § 52.222-46. AR
5a-978.
For CLIN X101 (Engineering), the CLIN primarily at issue in this case and the only cost-
reimbursable CLIN in the ITCC II contract, the government would evaluate the proposals for
both cost realism and cost reasonableness.5 AR 5a-963, -78. Cost realism would be assessed via
three factors: (1) that the costs “are realistic for the work to be performed,” (2) that such costs
“reflect a clear understanding of the requirements,” and (3) that the costs “are consistent with the
various elements of the offeror’s technical proposal.” AR 5a-978. Upon conducting this
analysis, the government reserved the right to make adjustments to the offerors’ proposed costs
before and after they submitted their final proposals. Id.
5
CLIN X101 makes up about 7% of the projected costs of the ITCC II contract. Hr’g Tr.
at 69:13-14 (Oct. 26, 2016) (The date will not be repeated in further citations to the transcript of
the hearing.).
6
Finally, the RFP required offerors to submit a Total Evaluated Price (“TEP”) for all
CLINs that included the base period and all option years. AR 5a-978. The TEP was evaluated
for fairness and reasonableness. Id.
C. USSTRATCOM’s Evaluation of Proposals and Award Decision
USSTRATCOM received proposals from five offerors: CSC, HPES, [***],[***], and
[***]. AR 25-41668. [***] was eliminated from the competitive range prior to discussions. See
AR 25-41670; 42-45627.
After [***] was eliminated from consideration, discussions opened with the four
remaining offerors on June 12, 2015. AR 27-42016. USSTRATCOM conducted three rounds of
discussions with CSC, as well as a third round addendum. Am. Compl. ¶ 41. In the first round,
the government issued an evaluation notice (“EN”) to CSC stating that its “[p]roposed labor mix
for Engineering, CLIN X101 ha[d] been evaluated as unrealistically low” because CSC had
estimated that the labor for this CLIN could be reduced from 121,000 historical hours to [***]
hours, and that CSC could reduce the [***] hour figure to [***] hours through various
efficiencies. AR 10a-10233 to -34.6 The EN requested that CSC provide a detailed explanation
of these efficiencies that would justify the “substantial difference” between the proposal and the
historical engineering labor mix. AR 10a-10233. During the second round of discussions, CSC
proposed various efficiencies to show why [***] hours was a realistic labor estimate for CLIN
X101, including [***]. AR 10b-16117 to -18. USSTRATCOM rejected these proposals and
left the EN open, stating that CSC did not “demonstrate any unique and innovative approaches,
[did not] provide an adequate explanation regarding the unrealistically low staffing, and fail[ed]
to explain how the reasons provided w[ould] result in a manning level of [***] hours.” AR 10b-
16119. In the third round of discussions, CSC adjusted its labor mix totals, starting with about
[***] hours for the base year, dropping to about [***] hours in the first option year, and
ultimately proposing [***] to [***] hours for each of the following option years. AR 10c-21326
to -29. CSC justified these reductions based on five categories of proposed efficiencies: [***].
AR 10c-21326. USSTRATCOM largely rejected these proposed efficiencies as well. See AR
10c-21329 to -30.
HPES also engaged in discussions with USSTRATCOM regarding its labor mix for
CLIN X101. Similar to its first EN to CSC, USSTRATCOM issued an EN to HPES stating that
its proposed labor mix for CLIN X101 was “unrealistically low” because it had proposed staffing
levels at [***]% of historical hours. AR 19a-38350 to -51. HPES explained in its response that
the other [***]% of hours were accounted for under other CLINs in the proposal. AR 19a-
38349. As with CSC, USSTRATCOM rejected HPES’s justification and left the EN open. AR
19a-38350. In the second round of discussions, HPES revised its CLIN X101 estimates to reflect
[***]% of historical hours ([***] hours, or [***] FTEs) for the base year, with staffing reduced
in the option years to [***] FTEs for years 2 through 4 and to [***] FTEs for years 5 through 10.
AR 19b-39248 to -49. HPES explained that these reductions in hours would be accomplished by
clearing out a backlog of engineering projects during the first year of the contract, moving to a
USSTRATCOM considered that a full-time equivalent (“FTE”) employee worked
6
approximately 1,900 hours per year. See AR 10a-10234.
7
and increased its proposed costs by $[***] million. AR 28-42120, -242.7 USSTRATCOM
deemed this price to be “fair and reasonable” in its cost-realism analysis of the CSC FPR. AR
27-42024. The FPR cost/price figures for both HPES and[***] were lower than their pre-FPR
figures. AR 28-42242. HPES’s price was deemed “fair and reasonable,” while a $[***]
probable cost adjustment upward for CLIN X101 was applied to [***]’s FPR as a result of the
cost-realism analysis. AR 27-42024 to -25.
The SSEB and Contracting Officer briefed the Source Selection Authority (“SSA”) on
their analyses of the offerors’ Final Proposal Revisions on April 13, 2016. AR 30-42979; see
also AR Tabs 27-29. The SSA determined that HPES’s proposal represented the best value as
defined in the RFP. AR 30-42974. USSTRATCOM awarded the ITCC II contract to HPES on
that basis. AR 30-42979.
D. CSC’s GAO Protect
After being notified by USSTRATCOM that HPES was being awarded the ITCC II
contract, see AR Tab 31, CSC timely filed a protest of the award decision at GAO on May 2,
2016. AR Tab 2. On August 10, 2016, GAO denied CSC’s protest. AR 54-45924. In its
decision, GAO determined that USSTRATCOM’s discussions with CSC were not misleading,
unequal, or coercive, and that USSTRATCOM’s evaluation of CSC’s proposal was reasonable.
AR 54-45928 to -35. CSC was found not to have been misled into raising its proposed costs
through its discussions with USSTRATCOM because the record showed that “the price
evaluators had reasonable concerns regarding the staffing, hours, and cost proposed in CLIN
X101.” AR 54-45933. GAO determined that CSC’s decision to adjust its proposed staffing
levels and costs for CLIN X101 “reflected the exercise of the firm’s own business judgment and
not improper conduct by the agency.” AR 54-45933 to -34. Furthermore, GAO also concluded
that the discussions were not unequal among the offerors because they were properly tailored to
each offeror’s specific proposed approach. AR 54-45935.
E. CSC’s Protest in this Court
On August 12, 2016, two days after GAO issued its decision, CSC filed its protest in this
court. See Compl. In its complaint, CSC asserted five counts regarding the ITCC II
procurement: (1) “the agency engaged in misleading, unequal, and coercive discussions,” (2)
“the agency’s cost[-]realism analysis was inadequate,” (3) “the agency’s evaluation of HPES’s
transition and staffing approach was unreasonable,” (4) “the agency’s past performance
evaluation ignored recent and relevant negative past performance information regarding HPES’s
ability to perform the ITCC II contract,” and (5) “the best value decision was arbitrary and
capricious.” Compl. ¶¶ 84-124. Contemporaneously with its complaint, CSC submitted an
application for a temporary restraining order and a motion for preliminary injunction. Pl.’s Mot.
for TRO and Prelim. Inj., ECF No. 5. The court granted HPES’s motion to intervene on August
15, 2016. Order of Aug. 15, 2016, ECF No. 14. During a hearing on August 16, 2016, “the
7
CSC’s final proposed cost was still $[***] million less than the most probable cost
calculated by USSTRATCOM in its pre-FPR evaluation of CSC’s proposal. Compare AR 26-
41728, with AR 28-42242.
10
parties represented that the government has agreed to voluntarily stay performance on the
contract at issue until at least November 23, 2016.” Order of Aug. 16, 2016, ECF No. 30. The
court therefore denied the application for a temporary restraining order as moot and consolidated
the motion for preliminary injunction with the proceedings on the merits. Id.
CSC filed an amended complaint on August 23, 2016 to remove its request for immediate
injunctive relief and to add a new count alleging that USSTRATCOM’s analysis of the offerors’
proposals was deficient under FAR § 52.222-46. See Mot. for Leave to File an Am. Compl.,
ECF No. 36. Pursuant to the court’s scheduling order, the government filed the administrative
record on August 26, 2016, ECF No. 40.8 The parties’ cross-motions for judgment on the
administrative record have been submitted and fully briefed and were addressed at a hearing on
October 26, 2016.
JURISDICTION
Pursuant to the Tucker Act, this court has jurisdiction to “render judgment on an action
by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a
proposed contract or to a proposed award or the award of a contract or any alleged violation of
statute or regulation in connection with a procurement or a proposed procurement.” 28
U.S.C. § 1491(b)(1), added by the Administrative Dispute Resolution Act, Pub. L. No. 104-
320, § 12, 110 Stat. 3870, 3874 (Oct. 19, 1996); see also Systems Application & Techs., Inc. v.
United States, 691 F.3d 1374, 1380-81 (Fed. Cir. 2012). To be an “interested party” under the
Tucker Act, the protestor must show that “(1) it was an actual or prospective bidder or offeror,
and (2) it had a direct economic interest in the procurement or proposed procurement.”
Distributed Solutions, Inc. v. United States, 539 F.3d 1340, 1344 (Fed. Cir. 2008). To prove
direct economic interest, the offeror must show that it had a “substantial chance” of receiving the
contract but for the government’s alleged errors in the procurement process, i.e., that it was
prejudiced by such errors. Information Tech. & Applications Corp. v. United States, 316 F.3d
1312, 1319 (Fed. Cir. 2003).
There is no dispute that CSC was an actual offeror for the ITCC II contract. Furthermore,
although CSC was not next in line for the contract behind HPES, it was still within the
competitive range of a winning bid. See Science and Mgmt. Res., Inc. v. United States, 117 Fed
Cl. 54, 62 (2014) (“[A] bidder need not be next in line for the consideration of an award in order
to possess standing; the substantial chance requirement is met where, but for the government’s
alleged error, the protestor would have been within the zone of active consideration.”) (internal
quotation marks and citations omitted). HPES, [***], and CSC all had the same ratings for
technical approach/technical risk and past performance, and CSC’s final cost-price proposal was
$[***] million greater than HPES’s proposal and $[***] million greater than [***]’s proposal,
which translates to [***]% and [***]% differences in price, respectively. See AR 30-42977.
Because CSC’s bid was quite close to the winning and second-place bids, it was within the
competitive range. CSC has therefore demonstrated jurisdictional prejudice and has standing to
bring this suit. Compare Information Tech. & Applications, 316 F.3d at 1319 (discussing
8
The government filed corrected versions of the administrative record on August 29,
2016, ECF No. 41, and October 3, 2016, ECF No. 51.
11
jurisdictional prejudice), with Bannum, 404 F.3d at 1356-57 (addressing merits prejudice
pursuant to the standards of 5 U.S.C. § 706, which sets out a “rule of prejudicial error”). See
Digitalis Educ. Solutions Inc. v. United States, 97 Fed. Cl. 89, 93 (2011) (“A protestor must
demonstrate prejudice twice: first to establish standing and then again to prevail upon the
merits.”) (citations omitted), aff’d, 664 F.3d 1380 (Fed. Cir. 2012); National Air Cargo Grp.,
Inc. v. United States, 127 Fed. Cl. 707, 716 (2016) (same).
STANDARDS FOR DECISION
The Administrative Procedure Act (“APA”), specifically 5 U.S.C. § 706, governs the
court’s review of an agency’s contract award. See 28 U.S.C. § 1491(b)(4) (“In any action
under this subsection, the courts shall review the agency’s decision pursuant to the standards
set forth in section 706 of title 5.”). A court may set aside an agency decision that was
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). The “arbitrary and capricious” standard is “highly deferential,” see Advanced Data
Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000), and the court may not
“substitute its judgment for that of the agency,” Keeton Corrs., Inc. v. United States, 59 Fed. Cl.
753, 755 (2004) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416
(1971), abrogated in part by Califano v. Sanders, 430 U.S. 99, 105 (1977)), recons. denied, 60
Fed. Cl. 251 (2004).
Notwithstanding this deferential standard, the court may set aside a procurement action if
“(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure
involved a violation of regulation or procedure.” Impresa Construzioni Geom. Domenico Garufi
v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001) (citations omitted). The “agency must
examine the relevant data and articulate a satisfactory explanation for its action including a
‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v.
United States, 371 U.S. 156, 168 (1962)). An agency’s decision lacks a rational basis, and is
therefore arbitrary and capricious, when the agency “entirely failed to consider an important
aspect of the problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or [the decision] is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.” Alabama Aircraft Indus., Inc.-Birmingham v.
United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting State Farm, 463 U.S. at 43).
ANALYSIS
A. Cost-Price Analysis
CSC advances three primary arguments regarding USSTRATCOM’s evaluation of the
cost-price factor: (1) that the government failed to properly conduct a cost-realism analysis for
CLIN X101 of HPES’s and [***]’s proposals, (2) that the government did not perform the
compensation analysis required by FAR § 52.222-46, and (3) that the cost-price evaluation was
inconsistent with the technical evaluation of CSC’s proposal regarding CLIN X101. See Mem.
In Support of Pl.’s Mot. for Judgment on the Administrative Record (“Pl.’s Mot.”) at 8-25, ECF
No. 44-1.
12
1. Cost-realism analysis of CLIN X101.
CSC argues that USSTRATCOM made two material errors in the cost-realism analysis of
its competitors’ proposals for CLIN X101. First, CSC asserts that the government failed to
assess the option year costs for CLIN X101 in the other offerors’ proposals, instead focusing
only on the base year numbers. Pl.’s Mot. at 8. Second, CSC argues that USSTRATCOM did
not “evaluate the cost realism of the offerors’ direct labor rates.” Id.
In applying the arbitrary and capricious standard, the court has held that “cost[-]realism
determinations are within an agency’s ‘sound discretion and expertise,’ [and] the [c]ourt will not
overturn a cost[-]realism determination unless the plaintiff demonstrates the absence of a rational
basis for the agency’s decision.” A-T Solutions, Inc. v. United States, 122 Fed. Cl. 170, 180
(2015) (quoting CTA Inc. v. United States, 44 Fed. Cl. 684, 693 (1999)). The cost-realism
analysis “need not have been performed with ‘impeccable rigor,’” but it “must reflect that the
agency considered the information available and did not make ‘irrational assumptions or critical
miscalculations.’” Westech Int’l, Inc. v. United States, 79 Fed. Cl. 272, 286 (2007) (quoting
OMV Med., Inc. v. United States, 219 F.3d 1337, 1344 (Fed. Cir. 2000)). In a best value
procurement such as this one, the contracting officer inherently exercises significant discretion.
See Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004).
Regarding the assessment of option year costs, CSC argues that the government did not
account for HPES’s reduced option year staffing when it closed the pertinent EN and accepted
the company’s proposal for CLIN X101 as realistic. See Pl.’s Mot. at 8-10. In response to the
evaluator’s assessment that HPES’s initial cost proposals were too low, HPES adjusted its
staffing approach to [***]% of historical hours, providing for [***] FTEs during the base period
and reducing staffing levels in the option years to [***] FTEs in option years 1 through 3 and to
[***] FTEs for the rest of the contract. AR 19b-39248 to -49. USSTRATCOM accepted this
proposal, stating:
The contractor increased the baseline engineering tasks to [***]% of historical hours and
states the remaining hours are covered through expansion tasking. The [***]% is based
on work done at other COCOM[, i.e., Combat Commands,] similar to STRATCOM size.
The contractor also assigns staff with specific skillsets to the appropriate WBS[, i.e.,
Work Breakdown Structure,] elements. There are no entry level Engineers and a good
mix of skill levels.
AR 19b-39249. CSC argues that this EN assessment indicates that USSTRATCOM evaluators
only considered the base period staffing and failed to evaluate the cost realism of the staff
reductions in the option period. Pl.’s Mot. at 10. Furthermore, CSC asserts that if the
government had properly performed the cost-realism analysis, it would have adjusted the option
year periods to reflect [***]% of historical hours, which would result in a probable cost
adjustment of $[***] (placing it at a higher cost than CSC’s proposal). Id. at 11 & Attach. Aff.
13
of Stephen J. Kiraly ¶ 16(d) (“Kiraly Aff.”), ECF No. 44-2.9 CSC makes similar arguments
regarding USSTRATCOM’s evaluation of [***]’s staffing and cost for CLIN X101 in the option
years.10
Contrary to CSC’s assertions, the record indicates that USSTRATCOM considered all
option years of HPES’s proposal in its cost-realism analysis. The final Proposal Analysis Report
states that the price analysis of all CLINs included the base period and all option years. AR 29-
42663. This is supported by USSTRATCOM’s calculations of engineering staffing levels in its
final cost evaluation of HPES’s proposal. See AR Tabs 23 and 44. Furthermore, the proposed
cost of CLIN X101 “was determined realistic and reasonable in accordance with the stated
methodology in M.3.3.2 [of the RFP].” AR 29-42663. These recitations and data adequately
indicate that USSTRATCOM considered the option periods in CLIN X101 in its cost-realism
analysis of HPES’s proposal, and thus had a rational basis for its realism findings.11 The
alternative calculations presented by CSC do not show that USSTRATCOM’s findings were
irrational; rather, they reflect disagreement with the evaluators’ assessment of the “unique
methods of performance” in the offerors’ proposals. See FAR § 15.404-1(d)(1).
Secondly, CSC argues that USSTRATCOM failed to evaluate the realism of the offerors’
proposed direct labor rates. CSC asserts that the government only compared the rates proposed
with rates on file with the Defense Contract Audit Agency (“DCAA”), and that neither the
government nor DCAA analyzed whether the proposed rates were actually realistic. Pl.’s Mot. at
12. USSTRATCOM requested field pricing assistance from DCAA for its assessment of direct
labor rates, and DCAA’s results “w[ere] relied upon as the primary form of cost analysis for
CLIN X101.” AR 29-42653. DCAA could not verify HPES’s proposed rates because they were
9
Pending before the court is the government’s motion to strike the Kiraly Affidavit, ECF
No. 49. The affidavit was filed as an exhibit to CSC’s motion for judgment on the administrative
record and evaluates USSTRATCOM’s cost-price assessment of HPES’s proposal. See
generally Kiraly Aff. The motion is granted in part and denied in part. The court will consider
Mr. Kiraly’s affidavit as part of the record in this case related to prejudice but not as an addition
or supplement to the administrative record.
10
CSC contends that “[t]he record is likewise devoid of any evidence that
[USSTRATCOM] conducted any meaningful analysis of the realism of [***]’s staffing and
associated cost for CLIN X101 in the option years.” Pl.’s Mot. at 10. Mr. Kiraly calculated that
if USSTRATCOM had adjusted [***]’s proposed costs in the option years to reflect the same
staffing levels proposed in the base period, it would have applied a probable cost upward
adjustment of $[***]. Kiraly Aff. ¶ 23.
11
The record also reflects that USSTRATCOM considered all years of [***]’s proposal in
its cost-realism analysis. See AR 89b-51342 (explaining that [***]’s proposed CLIN X101
staffing approach was realistic because, among other things, it included an “average of [***]
FTE - [***] FTE” over the contract period); AR 29-42801 to -02 (“The TEP is inclusive of all
CLINs for the base period (including the phase-in period), all option periods, and the 6-month
extension period . . . [and] CLIN X101 was determined realistic and reasonable in accordance
with the stated methodology in M.3.3.2.”).
14
based on the Economic Research Institute’s Salary Assessor Tool rather than the Forward
Pricing Rate Proposal rates on file with DCAA. See AR 23-41253, -56.12 CSC asserts that the
government did not perform any further cost-realism analysis of HPES’s direct labor rates, and
that this failure led it to overlook that HPES’s rates were “consistently and significantly lower”
than the rates paid by CSC as the incumbent contractor. Pl.’s Mot. at 13-14. Because HPES
“plan[ned] to rely extensively on incumbent personnel to perform the ITCC II [c]ontract,” CSC
argues that HPES’s proposed labor rates were unrealistic to actually retain incumbent personnel.
Id. at 14. According to Mr. Kiraly, had USSTRATCOM properly subjected HPES’s direct labor
rates to a cost-realism analysis, it would have made a proposed cost adjustment to CLIN X101 of
[***]. Kiraly Aff. ¶ 30.13
CSC incorrectly assumes that USSTRATCOM did not perform any cost-realism analysis
of the offerors’ direct labor rates. In fact, the record shows that USSTRATCOM performed an
independent cost-realism evaluation. Unless a specific methodology for conducting this analysis
has been specified, agencies have broad discretion to determine the realism of a cost proposal.
See Crowley Tech. Mgmt., Inc. v. United States, 123 Fed. Cl. 253, 260 (2015) (citing Afghan Am.
Army Servs. Corp. v. United States, 90 Fed. Cl. 341, 357-58 (2009) and Northeast Military Sales,
Inc. v. United States, 100 Fed. Cl. 103, 118 (2011)). As the government points out in its motion,
the DCAA analysis was merely the evaluation of the proposed direct rates during the assessment
of the initial proposals. Def.’s Cross-Mot. at 19. After introducing the DCAA analysis, the
Proposal Analysis Report explained that the government conducted a check against the
Economic Research Institute’s rates, leading to the conclusion that HPES’s “proposed direct
labor rates appear[ed] to accurately reflect its expected actual direct labor costs.” AR 29-42654.
Furthermore, the Proposal Analysis Report indicates that USSTRATCOM conducted a cost-
realism analysis of HPES’s Final Proposal Revision before issuing its final decision. The
USSTRATCOM evaluators again conducted a comparative analysis, in this instance between
HPES’s final proposed direct rates and the rates on file with DCAA. AR 29-42655. Although
the rates were slightly different, the government determined that both rates were “based on a
realistic and acceptable methodology” and that HPES’s rates were reasonable for performing the
work under CLIN X101. AR 29-42655 to -56. CSC has not demonstrated that this analysis was
insufficient to satisfy the cost-realism requirements of the RFP.14
12
CSC also asserts that the government’s analysis of [***]’s direct labor rates was limited
to the DCAA rate check. Pl.’s Mot. at 13. DCAA compared four similar job categories from its
data to [***]’s proposed direct labor rates, and the discrepancy between the selected rates ranged
from [***]% to [***]%. AR 29-42791. DCAA considered that the discrepancy between the
rates was explicable because the organization does not maintain “reliable and verifiable
information” for these types of labor rates and relied on a different salary survey to address the
comparison. AR 29-42794. [***] did not base its labor rates solely on either the DCAA
information or the alternative salary survey used in the DCAA analysis. Id.
13
Mr. Kiraly did not perform a similar analysis for [***]’s proposed direct labor rates.
14
CSC also has not demonstrated that USSTRATCOM’s analysis of [***]’s direct labor
rates was insufficient to satisfy the cost-realism requirements of the RFP. The Proposal Analysis
Report indicates that USSTRATCOM independently evaluated DCAA’s rate check analysis. See
15
In sum, CSC has failed to show that USSTRATCOM’s cost-realism analysis of CLIN
X101 lacked a rational basis.
2. Analysis under FAR § 52.222-46.
Next, CSC claims that USSTRATCOM failed to evaluate the offerors’ compensation
plans under FAR § 52.222-46, which was incorporated into the RFP by reference. See AR 5a-
970. This provision addresses offerors’ proposals that may reduce compensation (both salary
and fringe benefits) for incumbent employees. FAR § 52.222-46(a). It requires offerors to
“submit a total compensation plan setting forth salaries and fringe benefits proposed for the
professional employees who will work under the contract.” Id. The government then must
assess the plan “in terms of its impact upon recruiting and retention, its realism, and its
consistency with a total plan for compensation.” Id. Proposed compensation rates that are lower
than incumbent rates are “evaluated on the basis of maintaining program continuity,
uninterrupted high-quality work, and availability of required competent professional service
employees.” FAR § 52.222-46(b).
CSC contends that USSTRATCOM needed to follow a two-step analysis in assessing the
offerors’ compensation plans under FAR § 52.222-46: first, determining “whether each offeror’s
compensation package [is] generally consistent with the salaries being paid by the incumbent
contractor,” and second, determining “whether each offeror’s staffing plan is realistic, i.e.
whether it indicate[s] that the offeror under[stands] the scope of the work.” Pl.’s Mot. at 19-20
(citing OMV Med., 219 F.3d at 1343, and CRAssociates, Inc. v. United States, 95 Fed. Cl. 357,
371 (2010)). CSC argues that USSTRATCOM did not perform the first step of this analysis,
claiming that it “did not compare any offeror’s proposed compensation structure for the ITCC II
[c]ontract with the compensation paid under the incumbent contract.” Pl.’s Mot. at 20. Without
this analysis, according to CSC, USSTRATCOM failed to account for the fact that “[i]n ten of
eleven CLIN X101 labor categories, HPES proposed salaries that are anywhere from[***]% to
[***]% . . . lower than incumbent salaries.” Id. at 21 (citing Kiraly Aff. ¶¶ 48-49). CSC thus
argues that the government “was in no position to determine whether HPES or [***] had the
ability ‘to provide uninterrupted, high quality work,’ to recruit and retain professional
employees, and to ‘encourage continuity of work force,’” or whether their “proposed
compensation was realistic.” Id. at 24 (citing AR 29-42614 to -15, -750).
As an initial matter, CSC’s reliance on OMV is overstated. That decision does not lay out
a mandatory two-prong framework for all analyses to be conducted under FAR § 52.222-46.
AR 29-42794 (“The Cost Team reviewed each of the prime labor categories proposed by [***]
under CPIF CLIN X101, and did a comparative analysis between the [***] direct labor rates and
the DCAA Rate Check rates.”). USSTRATCOM determined that the discrepancy between the
rates could be understood by the difference in rate methodologies, see supra n. 12, and therefore
“t[ook] no exception to the [d]irect [l]abor [r]ates as proposed” and determined that the rates
were “realistic and reasonable.” AR 29-42791, -93. Similar to the analysis of HPES’s proposal,
these steps demonstrate that USSTRATCOM sufficiently considered the available information to
arrive at a rational cost-realism decision for [***]’s proposed direct labor rates. CSC’s assertion
that no such analysis was performed is contrary to the record.
16
Rather, the two-step analytical method addressed in OMV was advanced by the Air Force in the
RFP for the procurement at issue in that case. See OMV Med., 219 F.3d at 1343 (“As provided
in the RFPs, there were two components to the Air Force’s review of the offerors’ compensation
packages . . . .”). The RFP here contained no such instruction. Therefore, USSTRATCOM was
obliged to follow the requirements of FAR § 52.222-46 itself, not also additional criteria set out
in the RFP. According to the Federal Circuit in OMV, FAR § 52.222-46 does “not require the
preparation of minimum acceptable salary levels” and “nothing prohibit[s] the [government]
from awarding the contract to an offeror with salary levels lower than the minimum salary
levels” derived from incumbent rates. Id. at 1344. OMV thus does not superimpose a
requirement on FAR § 52.222-46 to compare incumbent salary rates with proposed rates.
Rather, based on the text of the regulation, the procuring agency must conduct a rational analysis
of the realism of the offerors’ proposed salaries with regard to program continuity, retention, and
“uninterrupted high-quality work.” Id. at 1339.15
USSTRATCOM satisfied the requirements of FAR § 52.222-46, as reflected in the
administrative record. In its final cost-price analysis of HPES’s proposal, USSTRATCOM
explained that the proposal satisfies FAR § 52.222-46 wholly apart from the overall cost-price
evaluation. The Proposal Analysis Report states:
HP’s Compensation Plan for Professional Employees was assessed in accordance with
FAR [§] 52.222-46 and found realistic, as the Plan reflects a sound management
approach and the ability to provide uninterrupted, high[-]quality work. No negative
impact to recruiting and retention of professional employees is expected, as HP offers its
employees a variety of benefits that encourage continuity of work force. These benefits
include a total rewards philosophy, including base pay, variable pay (pay for results),
rewards and recognition, a retirement plan, health and insurance benefits, and paid time
off.
AR 29-42614 to -15. CSC asserts that this analysis does not account for the fact that HPES’s
salary rates are lower than CSC’s incumbent rates. However, USSTRATCOM indicates that
HPES’s extensive offering of fringe benefits satisfies the requirements of FAR § 52.222-46 for
recruiting, retention, and continuity of high-quality work. Unlike in CRAssociates, where the
administrative record showed “no indication whatsoever that anyone at the [agency] focused
upon the requirements of this professional services clause during the evaluation process,” 90
15
CSC also cites the court’s decision in CRAssociates to support its argument that FAR §
52.222-46 requires a comparison between incumbent salaries and the offerors’ proposed salary
rates. See CRAssociates, 95 Fed. Cl. at 370-71 (applying OMV’s two-step test to a procurement
that did not mandate those particular criteria in the RFP). In the context of this case, the court
does not find the reasoning in CRAssociates persuasive and thus does not apply it here. Unless
the RFP directs the procuring agency to perform its analysis according to a particular process or
formula, a rational evaluator only needs to follow the general guides regarding compensation rate
evaluations as set forth in FAR § 52.222-46. Additionally, as the government notes in its brief,
the imposition of additional evaluation criteria outside the text of the FAR “would place an
unfair burden on agencies, who would then be required to perform FAR analyses with an eye to
every decision of the court.” Def.’s Cross-Mot. at 29 n. 11; see also Hr’g Tr. at 56:19-25.
17
Fed. Cl. at 372, USSTRATCOM noted specific examples from HPES’s proposal and tied them
to the requirements of FAR § 52.222-46. This explanation thus provides a sufficient basis to
conclude that USSTRATCOM’s analysis of HPES’s compensation proposal under FAR §
52.222-46 was rational and within the bounds of the government’s discretion.16
3. Consistency between USSTRATCOM’s cost-price analysis and its evaluation of
technical approach/technical risk.
CSC argues that USSTRATCOM’s cost-price analysis of its proposal was inconsistent
with the “Acceptable” rating given to its technical proposal, thus rendering the cost-price
determination irrational. The Management Approach sub-factor of the technical proposal
required an evaluation of staffing, specifically requiring offerors to “ensure adequate staffing”
during the phase-in process and the transition to the C2F building, and to “provide a staffing
approach to adequately manage the ITCC II contract with properly qualified, security cleared,
and certified personnel.” AR 5a-958. After modifying and fleshing out its proposal in response
to ENs, CSC’s Final Proposal Revision regarding this sub-factor was deemed Acceptable and
Low Risk. See AR 29-42291 to -98. CSC argues that this determination is inconsistent with
CSC’s discussions with the government regarding the cost-price factor, during which the
government considered that CSC had proposed “unrealistically low” staffing levels for CLIN
X101 that “could result in an MPC adjustment” if CSC failed to increase them. Pl.’s Mot. at 16.
The RFP stated that costs would be assessed under CLIN X101 according to the
following factors: whether they “(1) are realistic for the work to be performed, (2) reflect a clear
understanding of the requirements; and (3) are consistent with the various elements of the
offeror’s technical proposal.” AR 5a-978. CSC asserts that the government ignored the third
prong of this analysis by performing separate technical and cost-price evaluations and finding
that the staffing approach was Acceptable for the technical evaluation factor but not realistic on a
cost-price basis, thus leading to an “arbitrary and unreasonable” decision that prevented the
contract from being awarded to CSC. Pl.’s Mot. at 15-18.
16
Similarly, USSTRATCOM’s evaluation of [***]’s compensation proposal satisfied the
requirements of FAR § 52.222-46. In its assessment of [***]’s proposal in the Proposal Analysis
Report, USSTRATCOM explained:
[***] Compensation Plan for Professional Employees was assessed in accordance with
FAR [§] 52.222-46 and found realistic, as the Plan reflects a sound management
approach and the ability to provide uninterrupted, high quality work. No negative impact
to recruiting and retention of professional employees is expected, as [***] offers its
employees a competitive salary structure, a “promote-from-within” policy, and a variety
of benefits that encourage continuity of work force. These benefits include a retirement
plan, medical and dental coverage, life insurance, compensatory time off, and paid time
off.
AR 29-42750. By focusing on specific details of [***]’s proposal, including salary and fringe
benefits, to support its conclusion that the plan is realistic, USSTRATCOM’s analysis is rational
and sufficient to satisfy the requirements of FAR § 52.222-46.
18
CSC’s argument ignores the fact that its cost-price proposal was deemed realistic in
USSTRATCOM’s final analysis, and USSTRATCOM did not impose a probable cost
adjustment at that final stage. See AR 29-42404 (“The [g]overnment found each of the cost
elements to be realistic and reasonable based upon the above explanation, and no Probable Cost
Adjustment is required. CLIN X101’s pricing is hereby determined ‘realistic and reasonable.’”).
After the evaluators had assessed CSC’s proposed staffing levels to be “unrealistically low”
during the discussion phase, see, e.g., AR 10b-16116 to -17; AR 10c-21325, CSC voluntarily
adjusted its staffing levels in its Final Proposal Revision to improve the realism assessment. See
AR 12c-32411 (“CSC agrees with the [g]overnment’s assessment and most probable cost
adjustment for engineering and adjusted Volume III-Cost/Price accordingly.”).17 Ultimately, the
evaluations of CSC’s technical approach and cost-price plan were consistent because both
received the most positive rating possible in the final assessment.
Furthermore, regardless of the final assessment of the technical and cost-price factors, the
analysis of these factors during discussions was not inconsistent. The criteria for assessing
staffing levels was different under the technical and cost-price evaluation factors. The
Management Approach sub-factor of the technical assessment was evaluated based on processes,
structure, and management of staff, and offerors were explicitly told that their technical
proposals “shall not include cost/price information.” AR 5a-957 to -58. Contrastingly, the cost-
price analysis assessed the realism of the proposed costs and whether those costs accurately
reflected the approach proposed under the technical sub-factor. AR 5a-978. The factors thus
were related, but not the same. In short, although “the two ratings arguably should have a close
correlation,” they need not be identical to be rational. See Innovative Test Asset Solutions LLC v.
United States, 125 Fed. Cl. 201, 220 n. 20 (2016). USSTRATCOM’s technical evaluators could
logically find that CSC’s staffing approach was adequate, but the agency’s cost evaluators could
also conclude that CSC’s proposed cost proffered before the Final Proposal Revision was not
realistic to support that adequate staffing approach.
In sum, any differences between USSTRATCOM’s evaluation of the technical and cost-
price factors of CSC’s proposal during the final phases of the discussions were explicable,
rational, and within the government’s discretion, and the government’s final assessment
ultimately contained no such inconsistencies.
B. Technical Evaluation of Phase-In Staffing
Similar to its arguments regarding cost realism, CSC further contends that
USSTRATCOM did not have a rational basis for its findings related to the phase-in section of
the Management Approach sub-factor of the technical evaluation because it “failed to consider
whether offerors would be able to attract incumbent personnel given each offeror’s compensation
plan.” Pl.’s Mot. at 36. CSC reasserts that HPES’s proposed salaries were lower than the
incumbent rates, which created the “potential risk that HPES would not be able to hire most or
17
CSC asserts that toward the conclusion of the discussion phase, USSTRATCOM
coerced the company to make such an adjustment. The court is unpersuaded. See infra, at 25-
27.
19
all of the incumbents it proposed to retain.” Id. at 37. CSC asserts that HPES sought to retain
[***]% of incumbent personnel, an allegedly unrealistic figure when considering the proposed
salary differentials. See Am. Compl. ¶ 126; Pl.’s Mot at 38. CSC argues that USSTRATCOM
gave only cursory consideration to the salary and retention issue and baldly accepted HPES’s
proposals. Pl.’s Mot. at 36-41. CSC contends that a proper analysis would have yielded an
“Unacceptable” technical rating for the Management Approach sub-factor, which would have
disqualified HPES from consideration for the ITCC II contract. Id. at 41.18
As in its cost-realism analysis, CSC has failed to show that USSTRATCOM’s assessment
of phase-in staffing lacks a rational basis. In a bid protest, “[t]he deference afforded to an
agency’s decision must be even greater when a trial court is asked to review a technical
evaluation” because of the highly specialized, detailed, and discretionary analyses frequently
conducted by the government in that regard. L-3 Commc’ns EOTech, Inc. v. United States, 83
Fed. Cl. 643, 650 (2008) (citing E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir.
1996)), appeal dismissed, 356 Fed. Appx. 390 (Fed. Cir. 2009).
For the ITCC II contract, a proposal that met “the minimum requirements of the
solicitation” under the technical evaluation sub-factor would receive an “Acceptable” rating for
that sub-factor. AR 5a-972. The phase-in plan, an element of the Management Approach sub-
factor, had three requirements: (1) “[i]mplement a phase-in process that is reasonable and
realistic for assumption of full responsibility with no interruption or degradation of service for
ITCC II requirements,” (2) “[i]dentify phase-in risks and measures to mitigate them,” and (3)
“[e]nsure adequate staffing with the appropriate security clearances, skillsets, and certifications
to ensure a successful phase-in.” AR 5a-958. CSC takes issue with USSTRATCOM’s
evaluation of the third requirement, claiming that the proposed incumbent staffing levels are not
“adequate” because the government failed to account for differences in salary levels.
First, CSC’s statement that HPES sought to retain [***]% of incumbent personnel is
incorrect. HPES sought to staff [***]% of the ITCC II contact with incumbent personnel. AR
21a-40528. Under HPES’s phase-in-plan, however, its proposal reduced the number of FTE
employees from 309 under the ITCC I contract to [***]. See AR 48-45723. To staff [***]% of
the contract with incumbent employees, HPES would have to retain [***] incumbent FTEs,
which equals only [***]% of the ITCC I personnel. Def.’s Cross-Mot. at 21.
Further, USSTRATCOM properly assessed HPES’s proposal for phase-in staffing in
light of the RFP requirements and its relatively low retention goals, and provided sufficient
reasoning to show that its assessments were rationally based. In the Proposal Analysis Report,
USSTRATCOM cites to HPES’s proposal for phase-in staffing to determine that the “plan is
well thought out and shows some experience phasing into contract support” and “clearly meets
18
CSC similarly avers that USSTRATCOM failed to assess [***]’s proposed retention of
incumbent personnel in light of [***]’s proposed reduced salaries. See Pl.’s Mot. at 41 (arguing
that USSTRATCOM “credited [***] for proposing to staff [***]% of the ITCC II contract with
incumbent personnel – calling it a ‘reasonable goal’ – even though the [government] never
evaluated whether [***]’s proposed [p]hase-[i]n plan was feasible given its proposed
compensation”).
20
the minimum requirements” of the solicitation. AR 29-42559. In that proposal, HPES detailed
how it would retain incumbent personnel and attract new employees, including the use of
dedicated recruitment websites, targeted job fairs, succession planning, and competitive and
comprehensive benefits plans. AR 21a-40583 to -88. HPES also emphasized its significant
experience in completing phase-in projects and recruiting and retaining highly qualified
personnel. See, e.g., AR 21a-40580 (“We have successfully completed more than 1,000
transitions using our Transition and Transformation Methodology (TTM), including hiring
incumbent staff and changing the contract approach.”). USSTRATCOM relied upon this
specific, detailed plan and experience to support its “Acceptable” rating of HPES’s phase-in
plan. That reliance is rational in light of the record.19
C. Past Performance Evaluation
CSC next asserts that USSTRATCOM’s “Substantial Confidence” assessment of HPES’s
past performance was arbitrary and capricious. CSC claims that the government should have
sought out and evaluated HPES’s performance on the 2014 NASA ACES contract, an IT
contract with parameters to similar to those of the ITCC II contract. See Pl.’s Mot. at 42. This
evaluation allegedly would have shown that HPES had “significant problems implementing the
ACES contract,” leading to continued difficulty throughout contract performance. Id. (citing
Paul K. Martin, National Aeronautics and Space Administration, Review of NASA’s Agency
Consolidated End-User Services Contract (IG-14-013) (Jan. 30, 2014),
https://oig.nasa.gov/audits/reports/FY14/IG-14-013.pdf.).
“In reviewing an agency’s rating of past performance, this court should focus on whether
‘the evaluation was reasonable, consistent with the stated evaluation criteria[,] and compli[ant]
with the relevant statutory and regulatory requirements.’” RISC Mgmt. Joint Venture v. United
States, 69 Fed. Cl. 624, 634 (2006) (quoting JWK Int’l Corp. v. United States, 52 Fed. Cl. 650,
659 (2002), aff’d, 56 Fed. Appx. 474 (Fed. Cir. 2003)). Agencies are given “broad discretion” in
evaluating past performance information, including the extent to which a prior contract is
considered “relevant.” Glenn Defense Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901,
910-11 (Fed. Cir. 2013) (citing 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
performance falls within the [Source Selection Authority’s] considered discretion.”)).
19
Similarly, USSTRATCOM’s “Acceptable” rating for [***]’s phase-in plan is rationally
based on [***]’s detailed proposal. The government determined that “[t]he [t]echnical
[a]pproach rating [for the phase-in plan] of [A]cceptable is supported based on detailed
information in the contractor’s proposal that addressed each criteri[on] of the RFP; [p]hase-in,
staffing, security clearances, certifications, skillsets, and [p]rogram [m]anagement.” AR 29-
42689. [***] sought to staff the ITCC II contract with [***]% incumbent personnel. Id. In
[***]’s proposal, it explained how it would retain incumbent employees, such as through a
“talent engagement website,” in-person recruitment events, and career development programs, as
well as how it would attract new employees to fill the remainder of the positions. See AR 92a-
57275 to -83. This specific proposal provides a rational basis for USSTRATCOM’s
determination that [***] met the minimum requirements of the RFP for the phase-in plan.
21
It was within USSTRATCOM’s discretion to evaluate only the references provided by
HPES. According to the RFP, offerors were to submit at least three but no more than six
references of contracts they had performed since June 1, 2011. AR 5a-974. USSTRATCOM
reserved the right to seek out and assess other information regarding the offerors’ past
performance, including information from various government databases, AR 5a-974, but it was
not required to conduct such additional research. In HPES’s case, HPES submitted six
references that were deemed relevant, and USSTRATCOM located three additional contracts
that were deemed not to be relevant. AR 29-42585. USSTRATCOM conducted a detailed
evaluation of the six relevant references, see AR 29-42587 to -611, and determined that “HPES
has five Very Relevant past performance record[s] with two considered Exceptional and three
Very Good in Quality Performance, and one determined to be Relev[a]nt with Exceptional in
performance.” AR 29-42612. CSC does not dispute that this aspect of USSTRATCOM’s
evaluation was reasonable. See Def.’s Cross-Mot. at 44. According to the RFP, a Substantial
Confidence rating is warranted where “a minimum of two of the offeror-provided references . . .
[are] given both a Past Performance Relevancy Rating of either V[ery ]R[elevant] or R[elevant]
and a Performance Rating of either E[xceptional] or V[ery Good].” AR 5a-977. HPES’s past
performance review markedly exceeded the minimum requirements for the past performance
rating it received from USSTRATCOM.
Even so, CSC presses its contention, arguing that USSTRATCOM did not follow the
RFP when it searched for relevant contracts because it restricted its search to contracts that
started after June 1, 2011, rather than including all contracts that had been in the midst of
performance at that time. Pl.’s Mot. at 43. According to CSC, this resulted in the government’s
failure to consider the “highly-relevant” ACES contract. Id. Contrary to CSC’s assertions,
USSTRATCOM was not obligated to apply any particular search criteria when researching
offerors’ past performance; in fact, it was not obligated to conduct this research at all. It merely
had to ensure that the past contracts to be considered fit within the specifications of the RFP, i.e.,
that they had been performed after June 1, 2011 for at least one year.
CSC urges further that USSTRATCOM’s failure to analyze the ACES contract was
arbitrary and capricious because “an agency may not ignore prior performance information of
which it is aware.” Pl.’s Mot. at 44 (quoting BCPeabody Constr. Servs., Inc. v. United States,
112 Fed. Cl. 502, 512 (2013), appeal withdrawn, 559 Fed. Appx. 1033 (Fed. Cir. 2014)). It
argues that USSTRATCOM must have been aware of the ACES contract because HPES
referenced it in its proposal. Id.; see also Def.’s Cross-Mot. at 46. There is no indication in the
record, however, that USSTRATCOM actually was aware of HPES’s poor performance
evaluation under the ACES contract. HPES only referred to the contract fleetingly in its
proposal, see AR 21a-40527, -580, -593, -678, -731, and those references cannot be said to have
led the government to the ACES contract evaluation for use in its past performance assessment.
CSC has thus failed to show that it was irrational for USSTRATCOM to issue a past
performance evaluation for HPES in the absence of considering the ACES contract.
Finally, even if USSTRATCOM had negatively evaluated the ACES contract in its past
performance assessment, it would have no effect on HPES’s Substantial Confidence rating. As
previously explained, CSC does not dispute that USSTRATCOM’s evaluation of the contracts
provided by HPES was rational. The ratings given to the six references in that evaluation
22
exceeded the RFP requirements of two Very Relevant/Relevant and Exceptional/Very Good
references. The addition of the ACES contract would not bear on those ratings, and the
Substantial Confidence rating would therefore remain rational.
In sum, USSTRATCOM had a rational basis for giving HPES a Substantial Confidence
rating for the past performance factor, and CSC has failed to show that the decision was arbitrary
and capricious.
D. USSTRATCOM’s Discussions with Offerors
Finally, CSC maintains that its discussions with USSTRATCOM were misleading,
unequal, and coercive. Generally, discussions with offerors must be “meaningful,” meaning that
they “generally lead offerors into the areas of their proposals requiring amplification or
correction, which means that discussions should be as specific as practical considerations
permit.” Advanced Data Concepts, Inc. v. United States, 43 Fed. Cl. 410, 422 (1999), aff’d, 216
F.3d 1054. And, “[a] contracting officer has broad discretion in conducting discussions” as long
as they are meaningful. DMS All-Star Joint Venture v. United States, 90 Fed. Cl. 653, 668
(2010) (internal quotation marks and citations omitted).
1. USSTRATCOM’s discussions were not misleading.
“Discussions are misleading when a procuring agency issues ‘incorrect, confusing or
ambiguous’ communications that misdirect an offeror attempting to revise its proposal.” CEdge
Software Consultants, LLC v. United States, 117 Fed. Cl. 419, 434-35 (2014) (citing DMS All-
Star Joint Venture, 90 Fed. Cl. at 670); see also D&S Consultants, Inc. v. United States, 101 Fed.
Cl. 23, 40-41 (2011) (“[A]n agency is not permitted to mislead an offeror ‘into responding in a
manner that does not address the agency’s concerns; or that misinforms the offeror concerning its
proposal weaknesses or deficiencies.’”) (quoting Analytical & Res. Tech., Inc. v. United States,
39 Fed. Cl. 34, 48 (1997)), aff’d, 484 Fed. Appx. 558 (Fed. Cir. 2012). Here, CSC contends that
USSTRATCOM “affirmatively misled” it into raising its CLIN X101 costs “to a degree far
greater than was necessary to be considered realistic and eligible for the ITCC II [c]ontract
award.” Pl.’s Mot. at 26. Specifically, CSC argues that USSTRATCOM did not have a rational
basis for rejecting the efficiencies it proposed to justify the reduction of engineering hours from
its proposed [***]-hour baseline to [***] hours. Id. CSC further argues that USSTRATCOM
made a “greater than necessary MPC adjustment to [CSC’s] proposed CLIN X101 engineering
costs” that caused CSC to excessively raise its costs in the Final Proposal Revision. Id.
CSC proposed the [***] hour historical baseline for CLIN X101, and proposed various
efficiencies that would reduce actual hours to [***]. AR 10a-10233; 10b-16117 to -18. By the
final round of discussions, CSC had proposed five categories of efficiencies: [***]. AR 10c-
21326. USSTRATCOM considered these proposed efficiencies in its response. It first accepted
that [***] and [***] would contribute to reducing CLIN X101 hours. AR 10c-21329 to -30. In
rejecting the other proposed efficiencies, USSTRATCOM explained that CSC had not
“demonstrate[d] any unique and innovative approaches, [had not] provide[d] an adequate
explanation regarding the unrealistically low staffing, and fail[ed] to explain how the reasons
provided w[ould] result in a manning level of [***] hours.” AR 10c-21325; see also AR 10c-
23
21329 to -30. This explanation sets out a rational basis for rejecting CSC’s proposed efficiencies
because CSC had not justified how those efficiencies would realistically reduce engineering
hours for CLIN X101. CSC could not have been misled by these specific grounds for rejecting a
portion of its proposal.
CSC also claims that USSTRATCOM’s reliance on [***] hours as the baseline estimate
for CLIN X101 engineering hours prevented the government from considering any of its
proposed efficiencies. Pl.’s Mot. at 27. This argument lacks merit. First, as explained supra, it
is evident that USSTRATCOM did consider all of CSC’s efficiencies, accepting a few and
finding most to be unrealistic for reducing engineering hours to [***]. Further, CSC proposed
the [***]-hour estimate, not the government. The government performed its own calculations
and determined that required staffing levels for CLIN X101 would be approximately 76,800
hours, see AR 65b-46113 (Engineering tab, cell M39), but in the context of CSC’s proposal it
accepted the [***]-hour figure, AR 10a-10233. USSTRATCOM’s problem with CSC’s
proposed reduction in hours was not with the [***]-hour estimate, but rather was with CSC’s
failure to adequately justify the further reduction in hours from [***] to [***] via efficiencies.
The agency’s approach during discussions was rational and supported by the record, and
therefore was not misleading.
USSTRATCOM’s proposed MPC adjustment to CSC’s proposal was also not
misleading. In the pre-Final Proposal Revision stage, USSTRATCOM imposed an MPC
adjustment to CSC’s CLIN X101 proposal, resulting in an MPC of $[***]. AR 28-42117. CSC
claims that this MPC adjustment was misleading because it resulted in an MPC for CSC that was
$[***] million greater than the MPC for HPES, “despite finding that HPES’s Technical proposal
was not materially different from [CSC’s] proposal.” Pl.’s Mot. at 29. As a result, CSC asserts
that it would not have raised its proposed costs in its Final Proposal Revision but for this
allegedly misleading MPC adjustment. Id. However, as previously explained, USSTRATCOM
had a rational basis for rejecting CSC’s proposed efficiencies, and issued the MPC adjustment
when CSC failed to explain fully how it would reduce CLIN X101 engineering hours in light of
those rejections. CSC does not contend that HPES had similar cost-related disputes with the
government in the pre-FPR stage, and the government was under no obligation to explain the
posture of other offerors or differences between their proposals and CSC’s offering. See
WorldTravelService v. United States, 49 Fed. Cl. 431, 439 (2001) (“[A]gencies need not discuss
every aspect of the proposal that receives less than the maximum score or identify relative
weaknesses in a proposal that is technically acceptable but presents a less desirable approach
than others.”) (citations omitted). Furthermore, CSC explicitly accepted the MPC adjustment in
its Final Proposal Revision and provides no further evidence to show that the adjustment was
incorrect or improper. See AR 12c-32411 (“CSC agrees with the [g]overnment’s assessment and
most probable cost adjustment for engineering and adjusted Volume III-Cost/Price
accordingly.”). The MPC was rationally based, and CSC accepted it as such in exercising its
own business judgment by putting forward its Final Proposal Revision, so it cannot now claim to
have been misled because it failed to win the contract. See Academy Facilities Mgmt. v. United
States, 87 Fed. Cl. 441, 458 (2009) (finding that pricing differences between offerors arising
from discussions with the government were the result of the offerors’ business decisions).
2. USSTRATCOM’s discussions were not unequal.
24
CSC further asserts that the discussions were unequal and therefore unfair. The
government is required to conduct discussions with “integrity, fairness, and openness.” FAR
§ 1.102(b)(3). This duty of fairness in discussions bars the government from engaging in
“impermissible and prejudicial conduct favoring one offeror over another.” DMS All-Star Joint
Venture, 90 Fed. Cl. at 672. However, although preferential treatment is impermissible, the
government is “not required to conduct identical discussions with each offeror.” Id. (citing
Femme Comp. Inc. v. United States, 83 Fed. Cl. 704, 735 (2008)). Rather, discussions should be
tailored to each offeror’s proposal “with the scope and extent of discussions resting squarely
within the judgment of the contracting officer.” Id. (citing WorldTravelService, 49 Fed. Cl. at
440; FAR § 15.306(d)(3)).
CSC contends that USSTRATCOM unfairly held it to a higher standard than HPES in
discussions, “painstaking[ly] review[ing]” CSC’s proposals for CLIN X101 while allowing
HPES to escape scrutiny. Pl.’s Mot. at 30-31. CSC alleges that HPES and CSC proposed
similar efficiencies to reduce engineering hours for CLIN X101, but USSTRATCOM only
approved the efficiencies in HPES’s proposal. Id. at 31-33. What CSC fails to acknowledge,
however, is that both CSC’s and HPES’s initial hourly estimates were rejected by
USSTRATCOM in the first round of discussions as unrealistically low. See AR 10a-10235; 19a-
38351. Whereas CSC stuck to its [***] hour figure throughout discussions without explaining to
USSTRATCOM‘s satisfaction how that number was realistic for CLIN X101, HPES adjusted its
base year estimates upward to [***]% of historical hours and slowly decreased those hours over
the life of the contract (while keeping staffing levels significantly above [***] hours for all
years). Compare AR 10b-16117 to -19 and AR 10c-21329 to -30 (CLIN X101 staffing
discussions with CSC), with AR 19b-39248 to -49 (CLIN X101 staffing discussions with HPES).
USSTRATCOM only accepted HPES’s proposed efficiencies and its CLIN X101 proposal as
realistic when HPES made that significant adjustment to its estimates. AR 19b-39249. It was
not unequal for USSTRATCOM to accept HPES’s proposal and reject CSC’s when CSC failed
to account for the significant difference in engineering hours between the two proposals through
proposed efficiencies. USSTRATCOM’s treatment of HPES and CSC in discussions was
rational in light of the differences between these offerors’ proposals, so the court therefore
rejects CSC’s contention that discussions were unfair and unequal.
3. USSTRATCOM’s discussions were not coercive.
Finally, CSC asserts that USSTRATCOM’s discussions coerced it into raising its
proposed costs for CLIN X101 to levels that caused it to lose the ITCC II contract. As CSC puts
it, USSTRATCOM “threatened” CSC in its FPR request with a potential adverse responsibility
determination for failing to raise its CLIN X101 costs to realistic levels. Pl.’s Mot. at 33-34. In
pertinent respect, USSTRATCOM stated:
The significant discrepancy between [CSC’s] proposed costs for CLIN X101 and the
probable cost as determined [by USSTRATCOM] raises questions as to whether [CSC’s]
proposal meets the requirements of FAR [§] 9.104-1. Solicitation paragraph M1, Basis of
Award, states that “[a]ward will be made to the offeror who is deemed responsible in
accordance with FAR Part 9 . . . ,” while FAR [§] 9.103(c) states that “[t]he award of a
25
contract to a supplier based on lowest evaluated price alone can be false economy if there
is subsequent default, late deliveries, or other unsatisfactory performance resulting in
additional contractual or administrative costs. While it is important that [g]overnment
purchases be made at the lowest price, this does not require an award to a supplier solely
because that supplier submits the lowest offer. A prospective contractor must
affirmatively demonstrate its responsibility, including, when necessary, the responsibility
of its proposed subcontractors.” Should [CSC’s] FPR require a probable cost
adjustment and include a significant discrepancy between the proposed costs and
the probable cost, this may preclude the Contracting Officer from making an
affirmative determination of responsibility. The absence of an affirmative
determination of responsibility would render [CSC’s] proposal ineligible for award.
AR 11-32043 (emphasis in original). CSC argues that in light of USSTRATCOM’s emphatic
statement, it “had no choice but to acquiesce” and raised its price to avoid an adverse
responsibility determination that could have “undermined the company’s competitive position
for the foreseeable future.” Pl.’s Mot. at 34.
Even though USSTRATCOM’s FPR request affected CSC’s strategy in responding, CSC
cannot reasonably argue that it was coerced. First, the statement could have been true –
USSTRATCOM might have issued an adverse responsibility determination under the FAR if
CSC had not raised its prices or adequately justified its drastic reduction in engineering costs.
See 48 FAR §§ 9.103, 9.104. In any event, any adjustments that CSC made in its Final Proposal
Revision after receiving USSTRATCOM’s notice were made within the company’s business
judgment. Although CSC was “free to make any adjustment to its cost-savings proposals, or
none at all, based on its assessment of the validity of the [government’s] concerns,” Innovative
Test Asset Solutions, 125 Fed. Cl. at 226, it chose to acknowledge the pre-FPR MPC adjustment
and the concerns raised in USSTRATCOM’s notice, and raised its costs for CLIN X101 in its
FPR. See AR 12c-32411 (“CSC agrees with the [g]overnment’s assessment and most probable
cost adjustment for engineering and adjusted Volume III-Cost/Price accordingly.”). There is no
evidence in the record to show that CSC was coerced into making this adjustment. Because CSC
voluntarily made this change, and did so in a way that acknowledged the government’s concerns,
the court cannot find that USSTRATCOM’s actions were in any way improper. See Academy
Facilities Mgmt., 87 Fed. Cl. at 459 (concurring with an advisory opinion by GAO that a firm’s
decision to adjust prices as a result of discussions with the agency “reflects the exercise of the
firm’s own business judgment, not improper conduct by the agency”) (quoting Academy
Facilities Mgmt., B-401094.3, Advisory Opinion, at 6 (Comp. Gen. May 21, 2009)).
In sum, CSC has failed to demonstrate that USSTRATCOM’s discussions regarding
CLIN X101 were coercive or beyond the scope of its discretion.20
20
Because this court has found that USSTRATCOM’s evaluations with regard to the
technical, past performance, and cost-price factors were not arbitrary and capricious, it need not
independently address CSC’s summarizing argument that USSTRATCOM’s best-value
determination was flawed by the alleged errors in the evaluation process. See Pl.’s Mot. at 45.
26
CONCLUSION
For the reasons stated, CSC’s motion for judgment on the administrative record is
DENIED. The government’s and HPES’s cross-motions for judgment on the administrative
record are GRANTED. As a result, CSC’s motion for a preliminary injunction is also DENIED.
The government’s motion to strike the Kiraly affidavit is GRANTED IN PART and DENIED IN
PART for the reasons explained supra, at 13-14 n. 9.21 The clerk is directed to issue final
judgment in accord with this disposition.
No costs.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Judge
21
CSC’s motion for leave to file an amended complaint, ECF No. 36, see also ECF No.
39, is GRANTED.
27