Sh Synergy, LLC. v. United States ( 2023 )

In the United States Court of Federal Claims
SH SYNERGY, LLC and
VCH PARTNERS, LLC, Nos. 22-cv-1466, 22-cv-1468
(consolidated)
Plaintiffs,
Filed Under Seal: April 21, 2023
v.
Publication: April 28, 2023 1
THE UNITED STATES,
Defendant,
John D. Levin, Maynard, Cooper & Gale, P.C., Huntsville, AL for Plaintiffs. With him on the
briefs were W. Brad English, Emily J. Chancey, Joshua B. Duvall, and Nicholas P. Greer, all from
Maynard, Cooper & Gale, P.C., Huntsville, AL.
John H. Roberson, Senior Trial Counsel, United States Department of Justice, Civil Division,
Washington, D.C. for Defendant. With him on the briefs were Brian M. Boynton, Principal Deputy
Assistant Attorney General, Washington, D.C.; Patricia M. McCarthy, Director, United States
Department of Justice, Civil Division, Washington, D.C.; Douglas K. Mickle, Assistant Director,
United States Department of Justice, Civil Division, Washington, D.C.; Barbara Behn Ayala,
Assistant General Counsel, U.S. General Services Administration, Washington, D.C.; Carmody
Gaba Daman, Assistant General Counsel, U.S. General Services Administration, Washington,
D.C.; Michael Blumenthal, Trial Attorney, U.S. Small Business Administration, Office of General
Counsel, Washington, D.C.
MEMORANDUM AND ORDER
Plaintiffs SH Synergy, LLC (SHS) and VCH Partners, LLC (VCH) (collectively, Plaintiffs)
filed this pre-award bid protest to contest the General Service Administration’s (GSA’s) $60 to
$100 billion small business set-aside government-wide acquisition contract (GWAC) for
information technology (IT) services known as the “Polaris Program.” Plaintiff SH Synergy,
1
This Memorandum and Order was filed under seal in accordance with the Amended Protective
Order entered in this case (ECF No. 22) and was publicly reissued after incorporating all
appropriate redactions proposed by the parties (ECF No. 44-1). The sealed and public versions of
this Memorandum and Order are otherwise substantively identical, except for the publication date,
the correction of minor typographical errors, and this footnote.
1
LLC’s Motion for Judgment on the Administrative Record and Incorporated Brief (ECF No. 34)
(SHS MJAR) at 9; Plaintiff VCH Partners, LLC’s Motion for Judgment on the Administrative
Record and Incorporated Brief (ECF No. 33) (VCH MJAR) at 9; AR at 2826. 2 The protest
challenges the legality of three solicitations under the Polaris Program: the Small Business (SB)
Pool Solicitation; the Women-Owned Small Business (WOSB) Pool Solicitation; and the Service-
Disabled Veteran-Owned Small Business (SDVOSB) Pool Solicitation (collectively, the
Solicitations or the Polaris Solicitations). SHS MJAR at 9; VCH MJAR at 9. Plaintiffs allege that
certain Solicitation requirements violate federal procurement statutes and agency regulations
governing procurements involving small business offerors. See generally SHS MJAR at 14; VCH
MJAR at 14.
Having considered the parties’ arguments, applicable law, and the Administrative Record,
this Court GRANTS in part and DENIES in part Plaintiffs’ Motions for Judgment on the
Administrative Record (ECF Nos. 33, 34) and GRANTS in part and DENIES in part
Defendant’s Cross-Motion for Judgment on the Administrative Record (ECF No. 37). As
described more fully below, Defendant is ENJOINED from evaluating proposals and awarding
IDIQ contracts under the current versions of the SB, WOSB, and SDVOSB Pool Solicitations.
Should Defendant opt to proceed with the procurement, it must amend the SB, WOSB, and
SDVOSB Pool Solicitations, and evaluate proposals submitted under those Solicitations,
consistent with and in compliance with this Memorandum and Order.
2
Citations throughout this Memorandum and Order to the Administrative Record correspond to
the pagination within that document. Citations to all other documents, including briefing and
exhibits, reference the ECF-assigned page numbers, which do not always correspond to the
pagination within the document.
2
BACKGROUND
I. The Parties
SHS and VCH are IT service providers and mentor-protégé joint ventures (JVs) formed
under the Small Business Association’s (SBA’s) Mentor-Protégé Program. See generally SHS
Amended Complaint (ECF No. 25) (SHS Compl.); SHS MJAR; VCH Amended Complaint (ECF
No. 26) (VCH Compl.); VCH MJAR. SHS qualifies as a women-owned small business and is an
actual offeror on the WOSB Pool Solicitation under the Polaris Program. SHS Compl. ¶¶ 2, 5.
VCH qualifies as a service-disabled veteran-owned small business and is an actual offeror on the
SDVOSB Pool Solicitation under the Polaris Program. VCH Compl. ¶¶ 2, 5. Both SHS and VCH
also claim to be prospective offerors on the SB Pool Solicitation. SHS Compl. ¶ 5; VCH Compl.
¶ 5. Both SHS and VCH state they have prepared, but not yet formally submitted, proposals in
response to the SB Pool Solicitation. SHS Compl. at 2 n.1; VCH Compl. at 2 n.1. Plaintiffs allege
that GSA has prohibited them from proposing on the SB Pool Solicitation “[b]ecause Plaintiffs’
mentor member is already submitting a proposal through another SBA-approved protégé joint
venture, [and] the SB Solicitation prohibits” mentor-protégé JVs with the same mentor from
bidding on a single Solicitation. SHS MJAR at 20; VCH MJAR 20; SHS Compl. ¶¶ 37–38; VCH
Compl. ¶¶ 38–39.
GSA is a federal government agency charged with centralized procurement services for the
Federal Government, focusing primarily on real estate and technology services. 3 GSA, in
conjunction with the Department of Defense and NASA, issues government-wide regulations for
federal procurements under the Federal Acquisition Regulation (FAR), which is “the primary
3
Mission and Background, U.S. General Services Administration, https://www.gsa.gov/about-
us/mission-and-background (last visited Apr. 19, 2023).
3
regulation for use by all executive agencies in their acquisition of supplies and services with
appropriated funds.” 4
II. SBA Mentor-Protégé Program
Through the SBA’s Mentor-Protégé Program, small businesses with limited industry
experience (protégés) partner with experienced government contractors (mentors) to compete for
federal procurement contracts. 5 The Mentor-Protégé Program “is designed to enhance the
capabilities of protégé firms by requiring approved mentors to provide business development
assistance to protégé firms and to improve the protégé firms' ability to successfully compete for
federal contracts.” 13 C.F.R. § 125.9(a). SBA regulations establish the criteria firms must meet
to qualify as either a protégé or mentor under the Mentor-Protégé Program. See 13 C.F.R.
§ 125.9(c)(1) (outlining the qualifications for protégés); 13 C.F.R. § 125.9(b)(1)–(2) (outlining the
qualifications for mentors). Importantly, firms need not individually qualify as small businesses
to serve as mentors in the program. See 13 C.F.R. § 125.9(b) (“Any concern that demonstrates a
commitment and the ability to assist small business concerns may act as a mentor and receive
benefits as set forth in this section. This includes other than small businesses.”). All mentor-
protégé relationships are vetted and approved by the SBA upon formation, and a mentor may only
have up to three protégés at one time. See 13 C.F.R. § 125.9(b)(3)(ii). However, for the SBA to
approve a second or third mentor-protégé relationship, “the mentor and proposed additional
4
Federal Acquisition Regulation (FAR), U.S. General Services Administration,
https://www.gsa.gov/policy-regulations/regulations/federal-acquisition-regulation-far (last visited
Apr. 19, 2023) (“The Department of Defense (DoD), GSA, and the National Aeronautics and
Space Administration (NASA) jointly issue the FAR.”).
5
SBA Mentor-Protégé Program, Small Business Administration, https://www.sba.gov/federal-
contracting/contracting-assistance-programs/sba-mentor-protege-program (last visited Apr. 19,
2023).
4
protégé must demonstrate that the added mentor-protégé relationship will not adversely affect the
development of either protégé firm (e.g., the second firm may not be a competitor of the first
firm).” 13 C.F.R. § 125.9(b)(3).
By allowing mentor firms to assist proteges with “the performance of contracts set aside or
reserved for small business,” the Mentor-Protégé Program constitutes an exception to the SBA’s
standard rules governing affiliation between firms. 13 C.F.R. § 125.9(a); see 13 C.F.R. § 121.103(defining “affiliation” and carving out exceptions to affiliation, including § 121.103(b)(6), which
reiterates the exception for mentor-protégé relationships). Traditionally, firms can lose their small
business status by affiliating with larger companies. See FAR 52.219-6(a) (noting that whether an
entity qualifies as a “small business concern” for set-aside procurements depends on the combined
size of the entity itself and any of the entity’s affiliates); 13 C.F.R. § 121.103 (defining the
circumstances that create affiliation between two firms). Through the Mentor-Protégé Program,
however, “[a] protégé and mentor may joint venture as a small business for any government prime
contract, subcontract or sale, provided the protégé qualifies as small for the procurement or sale.”
13 C.F.R. § 125.9(d)(1). “Such a joint venture may seek any type of small business contract (i.e.,
small business set-aside, 8(a), HUBZone, SDVO, or WOSB) for which the protégé firm qualifies
. . . .” Id. Thus, the size and nature of the protégé firm, rather than the mentor firm, dictate the
specific procurements for which a mentor-protégé team can bid. See 13 C.F.R. § 125.9(d).
Importantly here, though a mentor may have more than one protégé, it cannot bid on the same
Solicitation multiple times using different protégé relationships. See 13 C.F.R. § 125.9(b)(3)(i).
Specifically, the law dictates that “[a] mentor that has more than one protégé cannot submit
competing offers in response to a solicitation for a specific procurement through separate joint
ventures with different proteges.” 13 C.F.R. § 125.9(b)(3)(i).
5
III. The Polaris Program
The Polaris Program is a small business set-aside procurement designed to deliver
“customized [IT] services and IT services-based solutions” to qualifying federal agencies.
Administrative Record (ECF Nos. 30, 32) (AR) at 1024, 2063, 2553. GSA estimates that
procurements for IT services under the Polaris Program will total approximately $6 billion per
year and between $60 billion to $100 billion over the lifetime of the program. AR at 2826. Under
the Polaris Program, GSA issued multiple Solicitations designed to form groups, or “pools,” of
approved, small business IT service-providers. AR at 1024, 2063, 2553. GSA intends to form
these pools by awarding multiple-award indefinite-delivery, indefinite-quantity (IDIQ) contracts
to a pre-determined number of awardees who meet the small business qualifications outlined
within each Solicitation (i.e., SB, WOSB, SDVOSB, etc.). AR at 1112–14, 2152–54, 2643–45.
These IDIQ contracts will be for a term of five years, with a five-year option to extend the
cumulative term of the contract to ten years. AR at 1039, 2078, 2568.
Once the pools of eligible IT service providers are formed under each Solicitation,
authorized federal agencies interested in procuring IT services may issue individual task orders
upon which the IDIQ contract awardees may bid. AR at 1024, 2063, 2553. Accordingly, the
specific IT services required by an agency are contracted for and performed at the task order level
rather than at the IDIQ level under the Solicitations. In this manner, the IDIQ contract serves as a
“contract vehicle” connecting qualified small business IT providers and federal agencies through
the individual task orders. See Defendant’s Response to Plaintiffs’ MJARs and Cross-Motion for
Judgment on the Administrative Record (ECF No. 37) (Cross-MJAR) at 13–14. The Solicitations
permit agencies to issue various forms of task order contracts, including fixed-price, cost-
reimbursement, incentive, time-and-materials, and labor-hour contracts. AR at 1025, 2064, 2554.
6
However, the Solicitations state a preference for “Firm-Fixed Price Performance-Based Task
Order[s].” Id.As noted, Plaintiffs’ protest implicates three solicitations 6 under the program: the SB Pool
Solicitation (47QTCB22R0001), AR at 1021–1144; the WOSB Pool Solicitation
(47QTCB22R003), AR at 2060–2184; and the SDVOSB Pool Solicitation (47QTCB22R0007),
AR at 2550–2674. See SHS MJAR at 9; VCH MJAR at 9; Cross-MJAR at 13. 7 GSA intends to
award 100 IDIQ contracts under the SB Pool Solicitation, 80 IDIQ contracts under the WOSB
Pool Solicitation, and 70 IDIQ contracts under the SDVOSB Pool Solicitation. See AR at 1112–
14, 2152–54, 2643–45. Thus, each pool will consist of between 70 and 100 successful offerors.
A. Eligible Offerors Under the Polaris Solicitations
Since the Polaris Solicitations are for small business set-aside procurements, competition
for award under the Solicitations is limited to offerors who qualify as SBs, WOSBs, or SDVOSBs
under SBA regulations. AR at 3, 1162, 2201; see FAR 52.219-6 (noting set-asides are
procurements for which “[o]ffers are solicited only from small business concerns. . . . [and] [a]ny
6
GSA prepared the Solicitations through an iterative process during which GSA published initial
versions of the Solicitations and issued amendments modifying the Solicitations’ terms to respond
to industry feedback or other pre-award protests. In total, GSA issued eight versions of the SB
and WOSB Solicitations and three versions of the SDVOSB Solicitation. See generally AR at 11–
2683 (documenting every version of each Solicitation issued). The SDVOSB Solicitation received
fewer amendments because GSA first issued the SDVOSB Solicitation on September 15, 2022,
after it had initially issued the SB and WOSB Solicitations on March 25, 2022. Compare AR at
11, 1171, with AR at 2202. Accordingly, earlier amendments to the SB and WOSB Solicitations
were preemptively incorporated into the initial version of the SDVOSB Solicitation. See AR at
2202–2359. GSA issued the final amended versions of the SB and WOSB Solicitations on
September 20, 2022, and issued the final amended SDVOSB Solicitation on October 20, 2022.
See AR at 1021, 2060, 2550.
7
The fourth Solicitation under the Polaris Program, reserved for HUBZone offerors, is not at issue
in this protest. See, e.g., Cross-MJAR at 10 n.2 (“The HUBZone solicitation has not been
challenged.”).
7
award resulting from [the] solicitation will be made to a small business concern.”). The
Solicitations allow SB, WOSB, and SDVOSB offerors to prepare proposals using two different
kinds of small business teaming arrangements: (1) prime contractor/subcontractor teaming
arrangements, and (2) joint ventures. See AR at 1088, 2127, 2618. In a prime
contractor/subcontractor teaming arrangement, “[a] potential prime contractor agrees with one or
more other companies to have them act as its subcontractors” for contracts and task orders issued
under the Solicitation. AR at 1088, 2127, 2618; see FAR 52.207-6 (defining “Small Business
Teaming Arrangement” to include when “[a] small business offeror agrees with one or more other
small business concerns to have them act as its subcontractors under a specified Government
contract”); AR at 1083, 2122, 2613 (incorporating FAR 52.207-6 by reference in the Solicitations).
Alternatively, SB, WOSB, and SDVOSB companies can submit proposals by forming joint
venture entities that serve as offerors under the Solicitation. See AR at 1088–89, 2127–28, 2618–
19. This umbrella of offerors includes mentor-protégé JVs, which may also submit proposals as
offerors under the Polaris Solicitations. See AR at 1088–89, 2127–28, 2618–19. Joint venture
entities may likewise serve as prime contractors and team with subcontractors to submit proposals
under the Polaris Solicitations. See AR at 1088–89, 2127–28, 2618–19.
Generally, “[a] small business concern may participate under multiple proposals (e.g.,
Offeror, proposed subcontractor, joint venture member).” AR at 1084, 2123, 2614. This includes
mentor-protégé JVs, as “nothing in the [Solicitations] prohibits a Mentor-Protégé Joint Venture
from submitting a proposal against a solicitation and also participating in the same procurement as
a subcontractor for another Prime offeror.” Cross-MJAR at 35. Additionally, nothing in the
Solicitations “bars a Mentor, that is a small business and fits within an appropriate set-aside
category (e.g., SB, WOSB, SDVOSB) from submitting a proposal that competes directly with a
8
Mentor Protégé Joint Venture in which it is the Mentor.” Id. However, mentor-protégé JVs that
share the same mentor may not submit competing proposals under the same Solicitation. See Small
Business Pool Question and Response Document #4, Question 292 (AR at 890) (citing 13 C.F.R.
§ 125.9(b)(3)(i)). Thus, the Solicitations prohibit mentor-protégé JVs that share a mentor from
being members of the same pool of eligible providers.
B. Evaluation of Proposals – Highest Technically Rated Qualifying
(HTRQ) Offerors
Under the Polaris Solicitations, GSA will award IDIQ contracts to the highest technically
rated qualifying (HTRQ) offerors. See AR at 1112, 2152, 2643; see also Acquisition Plan for
Polaris GWAC Program (AR at 2856) (“For Polaris, the best value basis for awards will be
determined by the Highest Technically Rated Qualifying Offerors.”). The evaluation process
begins with qualifying offerors (i.e., SBs, WOSBs, and SDVOSBs) submitting self-scored
proposals using a points scheme derived from scoring tables contained in the Solicitations. AR at
1113, 2153, 2644. Offerors earn points based on how well their proposals meet the Solicitations’
four primary “evaluation factors”: (1) Relevant Experience; (2) Past Performance; (3) Systems,
Certifications, and Clearances; and (4) Risk Assessment. See AR at 1114–18, 2154–58, 2645–49.
Offerors can claim a maximum of 95,000 points for their proposals. AR at 1118, 2158, 2649.
Additionally, GSA will separately assess each offeror’s Responsibility, evaluated on a pass/fail
basis. AR at 1118, 2158, 2649.
Once GSA receives all offerors’ proposals, the agency will “rank the proposals in order
from highest total claimed score to lowest total claimed score.” AR at 1113–14, 2153–54, 2644–
45. The 100 proposals (or 80 proposals for the WOSB Solicitation, or 70 proposals for the
SDVOSB Solicitation) with the highest claimed score are called Preliminary Qualifying Proposals
(PQPs). AR at 1113, 2153, 2644. GSA verifies the PQPs’ claimed scores by reviewing all
9
supporting documentation submitted by offerors and performing an Acceptability Review 8 over
the proposals. AR at 1113–14, 2153–54, 2644–45. If any PQP is eliminated from consideration
after these review processes, the next highest rated proposal (based on the offeror’s claimed score)
will replace the eliminated proposal as a PQP. AR at 1113–14, 2153–54, 2644–45. In other words,
the entire list of remaining PQPs shifts up one position.
Once GSA has verified, through the evaluation and validation process, the point totals
claimed by the 100/80/70 highest-scoring offerors, GSA will cease evaluations and award IDIQ
contracts to the successful, verified bidders. AR at 1114, 2154, 2645. If, after the evaluation
process has concluded, multiple offerors have identical scores in the pool’s final position (position
100, 80, or 70, depending on the Solicitation), all offerors tied for the pool’s last spot will receive
an award. AR at 1112, 2152, 2643. Thus, if this narrow circumstance occurs, more than 100/80/70
offerors can receive IDIQ contracts under the Solicitations. AR at 1112, 2152, 2643. 9
i. Evaluation Criteria - Relevant Experience
Plaintiffs’ protest places particular scrutiny on the Solicitations’ treatment of the Relevant
Experience evaluation factor. See generally SHS MJAR at 26–32; VCH MJAR at 26–32; Plaintiffs
SHS’s and VCH’s Consolidated Reply in Support of Plaintiffs’ MJARs and Response to
Defendant’s Cross-MJAR (ECF No. 38) (Pl. Reply) at 13–21. The Relevant Experience evaluation
8
Through the Acceptability Review, GSA ensures that each offeror’s “proposal submission
information meets the criteria for the information requested in [the Solicitation] and is current,
accurate, and complete.” AR at 1114, 2154, 2645.
9
The Solicitations emphasize the rule for ties only applies to the final position within a pool (i.e.,
spot 100, 80, or 70, depending on the Solicitation), and not to ties at any other rank. AR at 1112,
2152, 2643. Thus, if ties occur at any other rank in the pool, the tie does not result in two or more
offerors holding that same numbered position. AR at 1112, 2152, 2643. For example, if two
offerors receive identical verified scores at position 10, one offeror will take the 10th position, and
the other offeror will move down to the 11th position. AR at 1112, 2152, 2643.
10
factor is divided into two sub-categories: Primary Relevant Experience Projects and Emerging
Technology Relevant Experience Projects. AR at 1093–1103, 2132–42, 2623–34. Primary
Relevant Experience Projects equal or exceed $250,000 in contract value and involve one of the
following services: (1) Data Processing, Hosting, and Related Services; (2) Custom Computer
Programming Services; (3) Computer Systems Design Services; (4) Computer Facilities
Management Services; or (5) Other Computer Related Services. AR at 1095–96, 2134–35, 2625–
26. All offerors must submit a minimum of three and maximum of five Primary Relevant
Experience Projects as part of their proposals. See AR at 1094, 2133, 2625. Additionally, the
Solicitations evaluate Past Performance “using Projects submitted under [the] Primary Experience
Submission.” AR at 1103–05, 2143–45, 2634–35. For each Primary Relevant Experience Project,
offerors must submit a Past Performance assessment, the requirements of which are outlined in
greater detail in the Solicitations. AR at 1103, 2143, 2634.
Offerors can earn a maximum of 56,000 points for their Primary Relevant Experience
Projects, making Primary Relevant Experience the evaluation factor that contributes the largest
number of points to an offeror’s overall score. See AR at 1116–17, 2156–57, 2647–48. Each
Primary Relevant Experience Project gives offerors 4,000 points, contributing a potential total of
20,000 base points to an offeror’s total score. See AR at 1116–17, 2156–57, 2647–48. Offerors
can earn the full 56,000 points for Primary Relevant Experience Projects by submitting projects
that meet certain specialized criteria. See AR at 1116–17, 2156–57, 2647–48. For example,
offerors that submit projects with a contract value equal to or greater than $10 million can earn an
additional 3,000 points per qualifying Primary Relevant Experience Project. See AR at 1116–17,
2156–57, 2647–48. Further, offerors can earn additional points for Primary Relevant Experience
by submitting (1) projects completed for various government customers; (2) cost-reimbursement
11
projects; (3) task order awards on multiple-award contracts; (4) projects outside the contiguous
United States; (5) projects related to cybersecurity experience; and (6) projects demonstrating a
breadth of technological experiences. See AR at 1112–18, 2152–58, 2643–49. In addition to the
56,000 possible points earned for Primary Relevant Experience Projects, offerors can earn an
additional 20,000 points for Past Performance, which GSA also evaluates based on the Primary
Relevant Experience Projects an offeror submits. AR at 1117–18, 2157, 2648.
In contrast, Emerging Technology Relevant Experience Projects have a contract value of
$250,000 or greater and involve performance of one of the following technologies: (1) Advanced
and Quantum Computing, (2) Artificial Intelligence, (3) Automation Technology, (4) Distributed
Ledger Technology, (5) Edge Computing, or (6) Immersive Technology. See AR 1101–02, 2140–
41, 2632. Emerging Technology Relevant Experience Projects target cutting-edge technological
fields, and fewer small businesses will have experience in such fields. See Transcript of Oral
Argument, dated Feb. 15, 2023 (ECF No. 41) (Oral Arg. Tr.) at 50:1–7 (Defendant’s counsel
acknowledging “[t]he emerging technology experiences included past experience with artificial
intelligence, edge computing, immersive technology, advanced and quantum computing. . . . A
small business, they’re not all going to be [able to] do that”). As such, the submission of Emerging
Technology Relevant Experience Projects is entirely optional under the Solicitations, and an
offeror may submit a maximum of three such projects for consideration. See AR at 1100, 2140,
2631. Each submitted Emerging Technology Relevant Experience Project contributes 1,000 points
to an offeror’s overall score. AR at 1117, 2157, 2648. Offerors may also earn up to an additional
1,000 points if the submitted Emerging Technology Relevant Experience Projects demonstrate
breadth of experience in emerging technologies. AR at 1117, 2157, 2648. Thus, Emerging
12
Technology Relevant Experience Projects can contribute a maximum of 4,000 points to an
offeror’s score. AR at 1117, 2157, 2648.
Generally, Relevant Experience Projects (either Primary Relevant Experience Projects or
Emerging Technology Relevant Experience Projects) “may be from the Offeror or any proposed
subcontractor.” AR at 1090, 2129, 2620; see also 13 C.F.R. § 125.2(g). However, the Solicitations
include several provisions qualifying that rule. The Solicitations state: “For offers from SBA
Mentor-Protégé joint ventures, a minimum of one Primary Relevant Experience Project or
Emerging Technology Relevant Experience Project must be from the Protégé or the offering
Mentor-Protégé Joint Venture. No more than three Primary Relevant Experience Projects may be
provided by the Mentor.” 10 AR at 1088, 2127, 2619. The WOSB and SDVOSB Solicitations
likewise include the additional requirement that, for JVs involving WOSB or SDVOSB members,
at least one Primary Relevant Experience Project or Emerging Technology Relevant Experience
Project must be from a WOSB or SDVOSB member of the JV, respectively, or from the offering
JV itself. See AR at 2127, 2619. Finally, for any WOSB or SDVOSB offerors, including small
business teaming arrangements, “a minimum of one Primary Relevant Experience Project or
Emerging Technology Relevant Experience Project must be from” a WOSB or SDVOSB,
respectively. AR at 2132, 2624. However, this last requirement may be fulfilled by “the offeror
10
GSA added this provision to the Solicitations in response to a GAO protest filed on March 28,
2022. See AR at 3047–53. The protest criticized a prior version of the Solicitations that allowed
all of a mentor-protégé JV’s Relevant Experience requirements to come from the mentor, without
any contributions made by the protégé. AR at 3056. The protesting party alleged that the
Solicitations violated 13 C.F.R. § 125.8(e), which requires agencies to “consider work done and
qualifications held individually by each partner to the joint venture.” AR at 3049. In response,
GSA filed a notice of corrective action to address the concerns raised through the protest. AR at
3054–55. The GAO accordingly dismissed the protest as “academic” on April 25, 2022. AR at
3056–57. To remedy the identified issue, GSA amended the Solicitations to incorporate the
requirement that either the protégé firm or the mentor-protégé JV must provide at least one
Relevant Experience Project for consideration. AR at 167–339; AR at 1327–1499.
13
itself, a proposed subcontractor, or a member of a joint venture.” AR at 2944; see id. at 2129,
2620.
C. Evaluation of Proposals – No Consideration of Price at IDIQ-Level
Pursuant to Class Deviation CD-2020-14
Traditionally, agencies must “include cost or price to the Federal Government as an
evaluation factor that must be considered in the evaluation of proposals.” 41 U.S.C.
§ 3306(c)(1)(B); see also FAR 15.304(c)(1)(i) (“Price or cost to the Government shall be evaluated
in every source selection . . . .”). However, the Polaris Solicitations do not include cost or price to
the government as an evaluation criterion for awarding the IDIQ contracts. AR at 1112, 2152,
2643. Instead, GSA states it will evaluate cost and price at the individual task order level. AR at
1025, 2064, 2554. In making this choice, GSA relied on 41 U.S.C. § 3306(c)(3), which provides
an exception for “certain indefinite delivery, indefinite quantity multiple-award contracts . . . for
services acquired on an hourly rate.” 41 U.S.C. § 3306(c)(3). The statute reads as follows:
If an executive agency issues a solicitation for one or more contracts for services to
be acquired on an hourly rate basis . . . and the executive agency intends to make a
contract award to each qualifying offeror and the contract or contracts will feature
individually competed task or delivery orders based on hourly rates . . . the
contracting officer need not consider price as an evaluation factor for contract
award; and . . . cost or price to the Federal Government shall be considered in
conjunction with the issuance . . . of any task or delivery order under any contract
resulting from the solicitation.
41 U.S.C. § 3306(c)(3). Though this statute is binding on federal agencies, the FAR has not yet
been updated to incorporate 41 U.S.C. § 3306(c)(3). 11
11
In August 2018, the FAR Council opened a case to implement this statutory change into the
FAR. See FAR Council Case Number 2018-14 (opened August 22, 2018). The Council’s report
on this proposed rule change is due May 24, 2023. Id.14
On August 14, 2020, GSA issued Class Deviation 12 CD-2020-14 to informally alter the
language of the FAR and adopt the exception found in Section 3306(c)(3). FAR Class Deviation
- Enhancing Competition at the Order Level for Certain Indefinite Delivery, Indefinite Quantity
Multiple-Award Contracts (Class Deviation CD-2020-14 or Class Deviation). 13 Class Deviation
CD-2020-14 applies to all GSA contracting activities for acquisitions that are “[f]or the award of
[IDIQ] multiple-award contracts for services that will be acquired on an hourly rate basis.” Id.
¶ 4. Under the Class Deviation, “[t]o be eligible for consideration [for the application of the 41
U.S.C. § 3306(c)(3) exception] by the [Senior Procurement Executive], the predominant amount
of the acquisition must be for services that will be acquired on an hourly rate basis.” Id. ¶ 5(emphasis added). The Class Deviation sought to “amend” several FAR provisions, including
FAR 4.1005-2(a)(2), 13.106-1, 15.304, 16.5, and 16.601, to reflect the exception in Section
3306(c)(3). Id. ¶ 8. In doing so, GSA made the most extensive changes to FAR Subpart 16.5 “to
implement the exception provided by 41 U.S.C. § 3306(c)(3) for certain IDIQ multiple-award
contracts.” Id. The Class Deviation amended language for FAR Subpart 16.5 as follows:
A contracting officer need not consider price as an evaluation factor for award . . .
when all of the following conditions exist—
(1) The solicitation is to establish multiple-award indefinite-delivery,
indefinite-quantity contracts for services to be acquired on an hourly
rate basis;
(2) The solicitation states the Government intends to make award to each
qualifying offeror and defines the criteria for what constitutes a
qualifying offeror;
12
Deviations are policies, procedures, solicitation provisions, contract clauses, methods, or
practices of conducting acquisitions that are “inconsistent with the FAR.” FAR 1.401 (defining
“deviation”). “[D]eviations from the FAR may be granted . . . when necessary to meet the specific
needs and requirements of each agency.” FAR 1.402. “Class deviations affect more than one
contract” and “may be authorized by agency heads or their designees.” FAR 1.404.
13
Acquisition Policy Library & Resources – Class Deviations: CD-2020-14, U.S. General Services
Administration, https://www.gsa.gov/policy-regulations/policy/acquisition-policy/acquisition-
policy-library-resources#ClassDeviations (last visited Feb. 23, 2023).
15
(3) The resultant contracts will feature individually competed task or
delivery orders based on hourly rates; and
(4) Cost or price shall be considered in conjunction with the issuance of any
task or delivery order issued under any contract resulting from the
solicitation . . . .
Class Deviation CD-2020-14 at 5.
On March 1, 2022, GSA’s Senior Contracting Officers for the Polaris Program drafted a
memorandum for the Senior Procurement Executive requesting approval to apply Class Deviation
CD-2020-14 to the Polaris Solicitations. AR at 2906–13. In their request, the Contracting Officers
indicated that application of the Class Deviation would be appropriate for the Polaris Solicitations
because,
AR at 2907. In response, the Senior Procurement Executive issued Supplement 2
to Class Deviation CD-2020-14 on March 18, 2022, approving the “use of Class Deviation 2020-
14 authority for awarding labor rates with no stated price on the line item or sub-line item at the
contract level for [the] ‘Polaris Program’ of [IDIQ] multiple-award contracts.” Supplement 2 to
Class Deviation CD-2020-14 (Supplement 2), AR at 2904. The Senior Procurement Executive
further elaborated that Class Deviation CD-2020-14 “allowed for the use of ‘unpriced labor’
categories at the contract level for certain IDIQ multiple-award contracts.” Id. Supplement 2 does
not, however, include further explanation regarding why the Polaris Solicitations qualify for the
Section 3306(c)(3) exception.
JURISDICTION AND STANDARD OF REVIEW
The United States Court of Federal Claims maintains jurisdiction over pre-award bid
protests pursuant to 28 U.S.C. § 1491(b). See 28 U.S.C. § 1491(b). Section 1491(b)(1) grants the
16
court jurisdiction over protests filed “by an interested party objecting to a solicitation by a Federal
agency for bids or proposals for a proposed contract . . . or any alleged violation of statute or
regulation in connection with a procurement or a proposed procurement. . . . without regard to
whether suit is instituted before or after the contract is awarded.” See 28 U.S.C. § 1491(b)(1). An
interested party is “an actual or prospective bidder or offeror whose direct economic interest would
be affected by the award of the contract.” CGI Fed. Inc. v. United States, 779 F.3d 1346, 1348
(Fed. Cir. 2015) (quoting Am. Fed’n of Gov’t Emps. v. United States, 258 F.3d 1294, 1299 (Fed.
Cir. 2001)). The court evaluates bid protests using the same standard of review applied under the
Administrative Procedure Act (APA) to review agency action. See 28 U.S.C. § 1491(b)(4)
(adopting the standard of review outlined in 5 U.S.C. § 706); see Weeks Marine, Inc. v. United
States, 575 F.3d 1352, 1358 (Fed. Cir. 2009) (citing Bannum v. United States, 404 F.3d 1346, 1351
(Fed. Cir. 2005)). Specifically, the court shall not set aside agency procurement action unless it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5
U.S.C. § 706(2)(A).
To succeed in a bid protest under this standard, a protestor must demonstrate that either
“(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure
involved a violation of regulation or procedure.” Nat’l Gov’t Servs., Inc. v. United States, 923
F.3d 977, 981 (Fed. Cir. 2019) (quoting Weeks Marine, 575 F.3d at 1358); see also Tinton Falls
Lodging Realty, LLC v. United Sates, 800 F.3d 1353, 1358 (Fed. Cir. 2015) (“In applying
[“arbitrary and capricious” review] to bid protests, our task is to determine whether the
procurement official’s decision lacked a rational basis or the procurement procedure involved a
violation of regulation or procedure.”). The protestor must also demonstrate that any alleged error
in the procurement process somehow prejudiced the protesting firm. See, e.g., Am. Relocation
17
Connections, LLC v. United States, 789 F. App’x 221, 226–27 (Fed. Cir. 2019) (citing Bannum,
404 F.3d at 1357–58) (“[W]e must turn to the merits of the party’s claim and determine whether it
can prove it was prejudiced based on the record evidence.”); Glenn Def. Marine (ASIA), PTE Ltd.
v. United States, 720 F.3d 901, 912 (Fed. Cir. 2013) (citing Bannum, 404 F.3d at 1351) (“To prevail
in a bid protest case, the protestor must show that it was prejudiced by the government's actions.”).
“[O]nly a ‘clear and prejudicial’ violation of a procurement statute or regulation warrants relief.”
Cent. Ark. Maint., Inc. v. United States, 68 F.3d 1338, 1342 (Fed. Cir. 1995) (quoting CACI Field
Servs., Inc. v. United States, 854 F.2d 464, 466 (Fed. Cir. 1988)).
Courts apply a less stringent prejudice standard to pre-award protests due to the more
limited factual landscape involved in such cases. See Weeks Marine, 575 F.3d at 1361–62
(acknowledging “there is no factual foundation for a ‘but for’ prejudice analysis” in the context of
a pre-award protest of a solicitation); cf. Orion Tech., Inc. v. United States, 704 F.3d 1344, 1348–
49 (Fed. Cir. 2013) (applying the “substantial chance” test for prejudice where there was “an
adequate factual predicate to ascertain under the traditional ‘substantial chance’ standard whether
[the protestor] was prejudiced”). Whereas a post-award protestor must demonstrate it had a
“substantial chance” of receiving the award absent the alleged procurement error, a pre-award
protestor need only allege a “non-trivial competitive injury which can be addressed by judicial
relief” to show prejudice. Weeks Marine, 575 F.3d at 1359–63. 14 The U.S. Court of Appeals for
14
In Weeks Marine, the Federal Circuit ascribed the “non-trivial competitive injury” standard for
prejudice within the context of standing to file a pre-award bid protest. See Weeks Marine, 575
F.3d 1359–63 (“[W]e conclude that in a pre-award protest such as the one before us, [a] prospective
bidder or offeror must establish ‘a non-trivial competitive injury which can be redressed by judicial
relief’ to meet the standing requirement of § 1491(b)(1).”). Per the Federal Circuit, to establish
standing in a bid protest, an “interested party” must demonstrate it has a “direct economic interest”
that “would be affected by the award of the contract or failure to award the contract.” Id. at 1359
(quoting Am. Fed’n of Gov’t Emps., 258 F.3d at 1302). To establish a “direct economic interest”
18
the Federal Circuit (Federal Circuit) has expounded on the issue of prejudice in a pre-award protest,
noting that courts should apply something akin to the “harmless error” rule that courts generally
apply in ordinary civil cases. Am. Relocation Connections, 789 F. App’x at 228. Specifically, the
Federal Circuit has noted that a pre-award protestor must demonstrate “a greater-than-insignificant
chance” that correcting the agency’s errors could lead to a different result for the protestor. Id.
DISCUSSION
Plaintiffs’ pre-award bid protest challenges the propriety of the SB, WOSB, and SDVOSB
Pool Solicitations on three grounds. Specifically, Plaintiffs’ protest alleges that GSA violated
various procurement laws and regulations in both the design and the administration of the Polaris
Solicitations. First, Plaintiffs argue GSA’s decision to prohibit mentor-protégé JVs that share a
mentor from bidding on the same Solicitation renders the Polaris Solicitations “unduly restrictive”
sufficient for standing, the protestor must demonstrate that the agency action injured, or
prejudiced, the protestor. See id. at 1359.
Thus, the Federal Circuit has treated the prejudice inquiry for bid protests as inextricably linked
with the standing inquiry. See, e.g., Weeks Marine, 575 F.3d at 1359–63; Myers Investigative &
Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369–70 (Fed. Cir. 2002) (“To some extent, the
Court of Federal Claims appears to have treated the question of whether [the protestor] was
prejudiced by the [agency] as different from the question of whether [the protestor] has standing.
In fact, prejudice (or injury) is a necessary element of standing.”). In other cases, however, the
Federal Circuit has emphasized a distinction between the prejudice inquiry relevant to standing
and the merits-based prejudice inquiry required for a successful bid protest. See, e.g., Am.
Relocation Connections, 789 F. App’x at 227 (“We acknowledge that many of our bid protest
cases discuss the requirement to show prejudice in the context of standing. . . . But we do not read
those cases as holding that satisfying § 1491(b)(1)’s standing requirements necessarily establishes
that any procedural error committed by the procuring agency was prejudicial error on the merits.”);
Labbatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1378–79 (Fed. Cir. 2009) (emphasizing
the distinction between the “direct economic interest” inquiry and the “prejudice” inquiry to
underscore that an economically interested party may nevertheless suffer a non-prejudicial error
insufficient to invalidate a procurement). As no party contests Plaintiffs’ standing here, this Court
will assess prejudice from a merits-based perspective.
19
of competition and rests on an inappropriate interpretation of SBA regulation 13 C.F.R.
§ 125.9(b)(3)(i). See SHS MJAR at 16–23; VCH MJAR at 16–23. Second, Plaintiffs assert the
Solicitations violate regulations governing how an agency may evaluate mentor-protégé JVs,
WOSB JVs, and SDVOSB JVs during a procurement by subjecting these entities to “the same”
evaluation criteria as offerors generally. SHS MJAR at 26–34; VCH MJAR at 26–34. Third,
Plaintiffs contend the Polaris Solicitations violate federal procurement statute 41 U.S.C. § 3306(c)
by failing to consider price as an evaluation factor at the IDIQ level. SHS MJAR at 34–37; VCH
MJAR at 34–37. This Court considers each of Plaintiffs’ claims in turn.
I. GSA Properly Excluded Mentor-Protégé JVs with the Same Mentor from
Bidding on the Small Business Pool Solicitation Pursuant to 13 C.F.R.
§ 125.9(b)(3)(i).
Plaintiffs first argue they are improperly barred from submitting proposals on the SB Pool
Solicitation due to GSA’s purported misinterpretation and misapplication of SBA regulation 13
C.F.R. § 125.9(b)(3)(i). See SHS MJAR at 16–23; VCH MJAR at 16–23. Plaintiffs note that
because their respective mentor members have already submitted proposals on the SB Pool
Solicitation through another mentor-protégé JV, GSA has prohibited Plaintiffs from likewise
proposing on the SB Pool Solicitation pursuant to 13 C.F.R. § 125.9(b)(3)(i). SHS Compl. ¶¶ 37–
38; VCH Compl. ¶¶ 38–39; SHS MJAR at 20; VCH MJAR 20. The terms of the Polaris
Solicitations do not expressly reference Section 125.9(b)(3)(i); instead, GSA invoked Section
125.9(b)(3)(i) in answering a question it had received from a member of industry regarding the
Solicitations. See Small Business Pool Question and Response Document #4, Question 292 (AR
at 890). Question 292 inquired whether a mentor belonging to multiple mentor-protégé JVs may
submit multiple proposals in the same Solicitation pool so long as the JVs do not rely on the same
Relevant Experience Projects in their bids. Id. Responding in the negative, GSA specifically
referenced 13 C.F.R. § 125.9(b)(3)(i) to reiterate that “a mentor that has more than one protégé
20
cannot submit competing offers in response to a solicitation for a specific procurement through
separate joint ventures with different proteges.” Id. Said differently, under GSA’s interpretation
of Section 125.9(b)(3)(i) as applied to the Polaris Solicitations, if two mentor-protégé JVs share
the same mentor, the JVs cannot submit competing offers to enter the SB pool.
Plaintiffs make several arguments in support of their position. First, Plaintiffs contend
GSA’s reliance on Section 125.9(b)(3)(i) in imposing such a prohibition is misplaced because 13
C.F.R. § 125.9 “expressly deals with entering into the SBA Mentor-Protégé Program” and does
not govern procurement activity after the mentor-protégé JV has been formed. SHS MJAR at 20;
VCH MJAR at 20; Oral Arg. Tr. at 6:13–15 (“First, 13 C.F.R. 125.9 is not a procurement
regulation. It is a regulation that deals with entry into the Mentor-Protégé Joint Venture
Program.”). Second, Plaintiffs also argue that even if Section 125.9(b)(3)(i) were to apply beyond
the formation of a mentor-protégé relationship, the regulation should still not apply to the Polaris
Solicitations because the Solicitations do not involve “competing offers” at the IDIQ level. SHS
MJAR at 21; VCH MJAR at 21. Rather than involving “competing offers,” according to Plaintiffs,
the self-scoring regime used in the Polaris Solicitations involves no true competition, as it forces
each bidder to compete against itself rather than against other offerors. SHS MJAR at 21–22;
VCH MJAR at 21–22 (same); see Pl. Reply at 8–9. Instead, Plaintiffs contend competition exists
only at the task order level because that is the level at which discrete service projects are awarded
based on competitive bidding. SHS MJAR at 21–23; VCH MJAR at 21–23; Oral Arg. Tr. at 17:1–
3 (“[T]he trigger for competition is actually at the task order level. It’s not at the upper level.”).
Third, applying Section 125.9(b)(3)(i)’s prohibition to the Polaris Solicitations is further
inappropriate, according to Plaintiffs, because it is the protégé, and not the mentor, that has
authority to make operational decisions for the JV under SBA regulation. See SHS MJAR at 22–
21
23; VCH MJAR at 22–23. Thus, according to Plaintiff, the decision to preclude mentor-protégé
JVs that share a mentor from bidding on the same Solicitation harms protégés, unduly restricts
competition, and violates federal procurement law. See SHS MJAR at 20–23; VCH MJAR at 20–
23.
Defendant disagrees, both with Plaintiffs’ interpretation of 13 C.F.R. § 125.9(b)(3)(i) and
with Plaintiffs’ understanding of what constitutes a “competing offer.” Cross-MJAR at 24–37.
Defendant argues that 13 C.F.R. § 125.9(b)(3)(i) expressly prohibits mentor-protégé JVs with the
same mentor from competing against one another on future procurements. Cross-MJAR at 25–26.
Defendant contends that because the SBA’s rulemaking and regulations have the “force and effect
of law,” GSA lacked any discretion to disregard 13 C.F.R. § 125.9(b)(3)(i). Id. (citing Otis Steel
Prods. Corp v. United States, 316 F.2d 937, 940 (Ct. Cl. 1963)). According to Defendant, that the
offers are self-scored does not eliminate competition, as Plaintiffs suggest, because “scoring is
relative to the total group of offerors, and only the top scoring offerors will make it into the top
100 or 80 or 70 offeror tranches and thus be eligible to be awarded contracts.” Cross-MJAR at 30.
Thus, Defendant asserts that offerors with scores too low to be included within the tranche do not
receive an IDIQ contract. Id.The parties’ disagreement comes down to two issues: (1) the scope of Section
125.9(b)(3)(i), and (2) the appropriate interpretation of the term “competing offers” as used in that
regulation. On both issues, this Court agrees with Defendant: GSA reasonably prohibited mentor-
protégé JVs with the same mentor from proposing on the same Polaris Solicitation by applying 13
C.F.R. § 125.9(b)(3)(i).
In interpreting federal regulations, this Court must “apply the same interpretive rules
[courts] use when analyzing the language of a statute.” Boeing Co. v. Sec’y of Air Force, 983 F.3d
221321, 1327 (Fed. Cir. 2020) (citing Mass. Mut. Life Ins. Co. v. United States, 782 F.3d 1354, 1365
(Fed. Cir. 2015)). Thus, a court must “first consider the ‘plain language [of the regulation] and
consider the terms in accordance with their common meaning.’” Mass. Mut. Life Ins. Co., 782
F.3d at 1365 (quoting Lockheed Corp. v. Widnall, 113 F.3d 1225, 1227 (Fed. Cir. 1997)) (alteration
in original). As part of this process, the court must consider “the text of the regulation as a whole,
reconciling the section in question with sections related to it.” Id. (quoting Lengerich v. Dep’t of
Interior, 454 F.3d 1367, 1370 (Fed. Cir. 2006)). “If the regulatory language is clear and
unambiguous, the inquiry ends with the plain meaning.” Hanser v. McDonough, 56 F.4th 967,
970 (Fed. Cir. 2022) (quoting Goodman v. Shulkin, 870 F.3d 1383, 1386 (Fed. Cir. 2017)). Section
125.9(b)(3)(i) states, “A mentor that has more than one protégé cannot submit competing offers in
response to a solicitation for a specific procurement through separate joint ventures with different
protégés.” 13 C.F.R. § 125.9(b)(3)(i). As detailed below, this Court finds that GSA’s
interpretation of Section 125.9(b)(3)(i) and its application to the Polaris Solicitations reflects a
reasonable reading of the regulation’s clear and unambiguous language.
A. SBA Regulation 13 C.F.R. § 125.9(b)(3)(i) Governs a Mentor-Protégé
JV’s Procurement Activity Beyond Entry into the Mentor-Protégé
Program.
GSA correctly interpreted 13 C.F.R. § 125.9(b)(3)(i) as governing a mentor-protégé JV’s
procurement activity beyond the formation of the mentor-protégé relationship. Contrary to
Plaintiffs’ assertions, the scope of 13 C.F.R. § 125.9 extends beyond a firm’s mere entry into the
SBA Mentor-Protégé Program, as the regulation addresses the general “rules governing SBA’s
small business mentor-protégé program.” See 13 C.F.R. § 125.9 (titled “What are the rules
governing SBA’s small business mentor-protégé program?”). Indeed, Section 125.9 provides
guidance regarding which firms may serve as mentors and protégés under the program. See §§
125.9(b)–(c). It also details the written mentor-protégé agreement that parties must execute to
23
enter the program. See § 125.9(e). Additionally, Section 125.9(a) addresses the overall goals for
the Mentor-Protégé Program; Section 125.9(d) outlines the benefits of participating in such a
program; Section 125.9(g) establishes an annual evaluation scheme to assess the success of a
mentor-protégé relationship; and Section 125.9(h) provides rules governing the termination of a
mentor-protégé relationship. Thus, it is incorrect to suggest, as Plaintiffs do here, that Section
125.9 in its entirety just “addresses how a mentor and a protégé can be approved for [the Mentor-
Protégé Program].” Oral Arg. Tr. at 6:16–17. Section 125.9 provides the general framework for
how mentor-protégé relationships shall be conducted at every phase of the relationship’s life cycle,
including during its procurement activities.
Likewise, the plain reading of Section 125.9(b)(3)(i) prohibits the precise conduct Plaintiffs
urge this Court to allow: the regulation prevents mentor-protégé JVs comprised of the same
mentor, but different protégés, from submitting competing proposals on a procurement. See 13
C.F.R. § 125.9(b)(3)(i). Nothing in the regulation’s language obviously suggests its prohibitive
scope applies only upon the formation of a mentor-protégé relationship. In positing such an
interpretation, Plaintiffs reference 13 C.F.R. § 125.9(b)(3), which provides guidelines for the
formation of certain mentor-protégé relationships (i.e., those relationships formed between a
mentor and its second and/or third protégé). See SHS MJAR at 19–20; VCH MJAR at 19–20; 13
C.F.R. § 125.9(b)(3). However, the plain language of Section 125.9(b)(3) likewise underscores
the prohibition on competition between mentor-protégé JVs that share the same mentor. See 13
C.F.R. § 125.9(b)(3) (“In order for SBA to agree to allow a mentor to have more than one protégé
at a time, the mentor and proposed additional protégé must demonstrate that the added mentor-
protégé relationship will not adversely affect the development of either protégé firm (e.g., the
second firm may not be a competitor of the first firm).”) (emphasis added). Plaintiffs acknowledge,
24
as they must, that Section 125.9(b)(3) requires “mentors and additional protégés [to] make a
commitment to SBA prior to entering the SBA Mentor-Protégé Program [that] (1) the
additional protégé will not have an adverse impact on existing protégés and (2) the new protégé
relationship will not compete for the same work.” SHS MJAR at 19 (emphasis in original); VCH
MJAR at 19 (same). Yet, such a commitment rings hollow if, as Plaintiffs suggest, the restriction
in Section 125.9(b)(3)(i) applies only upon entry into the SBA Mentor-Protégé Program and does
not apply during a mentor-protégé JV’s participation in a procurement. There is no support for
the interpretation Plaintiffs suggest; the regulation applies throughout the life of the mentor-
protégé JV’s participation in the Program.
Even further, adopting Plaintiffs’ interpretations of Sections 125.9(b)(3) and 125.9(b)(3)(i)
would render Section 125.9(b)(3)(i) superfluous. By its plain language, Section 125.9(b)(3)
already forbids a mentor from forming a second or third mentor-protégé relationship if the
additional protégés are “competitor[s] of the first [protégé] firm.” 13 C.F.R. § 125.9(b)(3). Section
125.9(b)(3)(i), in turn, emphasizes the forward-looking consequences that accompany the
commitment not to compete that all mentors make upon forming second and third mentor-protégé
relationships: mentor-protégé JVs with the same mentor cannot submit competing offers on future
procurements. See 13 C.F.R. § 125.9(b)(3)(i). Section 125.9(b)(3)(i) must govern activity beyond
the formation of mentor-protégé relationships for it to perform any work within the larger
regulatory scheme of 13 C.F.R. § 125.9. This is the only interpretation that gives meaning to both
Sections 125.9(b)(3) and 125.9(b)(3)(i), and “it is a ‘cardinal principle of statutory construction
that courts must give effect, if possible, to every clause and word of a statute [or regulation].’”
Shea v. United States, 976 F.3d 1292, 1300 (Fed. Cir. 2020) (quoting Williams v. Taylor, 529 U.S.
362, 364 (2000)); see Kungys v. United States, 485 U.S. 759, 778 (1988) (plurality opinion)
25
(acknowledging the “cardinal rule of statutory interpretation that no provision should be construed
to be entirely redundant”); Sierra Club v. EPA, 536 F.3d 673, 680 (D.C. Cir. 2008) (“It is [a court's]
duty to give effect, if possible, to every clause and word of a statute. . . . The same is true for
regulations.”) (alteration in original) (quotations and citations omitted). Thus, this Court agrees
with Defendant in concluding Section 125.9(b)(3)(i) operates to prohibit mentor-protégé JVs with
the same mentor from submitting competing offers on future procurements, including the Polaris
Solicitations.
SBA commentary in the Federal Register Notice of Final Rulemaking for Section 125.9
further demonstrates the strength of GSA’s interpretation of 13 C.F.R. § 125.9(b)(3)(i). See
Consolidation of Mentor-Protégé Programs and Other Government Contracting Amendments, 85
Fed. Reg. 66,146, 66,168 (Oct. 16, 2020). Contrary to Plaintiffs’ insinuations, the SBA made clear
that its intent in including the relevant language in Section 125.9(b)(3)(i) was to “clarif[y] that a
mentor that has more than one protégé cannot submit competing offers in response to a solicitation
for a specific procurement through separate joint ventures with different protégés.” Id. The SBA
underscored this purpose by highlighting that in acquiring a second protégé, the mentor “has
already assured SBA that the two protégés would not be competitors. If the two mentor-protégé
relationships were approved in the same [North American Industry Classification System] code,
then the mentor must have already made a commitment that the two firms would not compete
against each other.” Id. (emphasis added). The Supreme Court has acknowledged that regulatory
interpretations issued by an agency through the Federal Register carry enough agency authority to
merit deference by a reviewing court. See Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019)
(acknowledging precedent deferring to interpretations published in the Federal Register by the
promulgating agency). Thus, even if the language in Section 125.9(b)(3)(i) somehow qualified as
26
ambiguous such that deference to the SBA’s interpretation were required, SBA’s comments in the
Federal Register support Defendant’s interpretation of Section 125.9(b)(3)(i).
B. The Polaris Solicitations Require the Submission of “Competing
Offers” at the IDIQ Level, Making 13 C.F.R. § 125.9(b)(3)(i)
Applicable to this Procurement.
Plaintiffs’ suggestion that the Polaris Solicitations do not require the submission of
“competing offers” at the IDIQ level is unavailing. Such a suggestion conflicts with the plain
language and meaning of “competing offers” as used in 13 C.F.R. § 125.9(b)(3)(i). See Mass.
Mut. Life Ins. Co., 782 F.3d at 1365 (acknowledging a court must “first consider the plain language
[of the regulation] and consider the terms in accordance with their common meaning”) (alteration
in original) (internal quotations omitted). Because SBA regulations do not define “competing
offers,” this Court turns to dictionary definitions to discern the term’s plain meaning. See id. at
1367 (quoting Am. Express Co. v. United States, 262 F.3d 1376, 1381 n.5 (2001)) (“It is
appropriate to consult dictionaries to discern the ordinary meaning of a term not explicitly defined
by statute or regulation.”). “Compete” is defined as “to strive consciously or unconsciously for an
objective (as position, profit, or a prize); [or to] be in a state of rivalry.” Compete, Merriam-
Webster’s Collegiate Dictionary (11th ed. 2003); see Competing, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/competing (last visited Mar. 7, 2023) (defining
“competing” as being “in a state of rivalry or competition (as for position, profit, or a prize)”).
“Rivalry” is defined as “the act of rivaling; [or] the state of being a rival,” and a “rival” is “one of
two or more striving to reach or obtain something that only one can possess.” Rivalry, Merriam-
Webster’s Collegiate Dictionary (11th ed. 2003); Rival, Merriam-Webster’s Collegiate Dictionary
(11th ed. 2003). Finally, “competition,” defined generally as “the act or process of competing,”
also describes “the effort of two or more parties acting independently to secure the business of a
27
third party by offering the most favorable terms.” Competition, Merriam-Webster’s Collegiate
Dictionary (11th ed. 2003).
Based on these terms’ common meanings, the procurement structure employed under the
Polaris Solicitations clearly involves the submission of “competing offers” as conceived under 13
C.F.R. § 125.9(b)(3)(i). 15 Under the Polaris Solicitations, each offeror is independently vying to
secure one of a limited number of positions within the Solicitation’s pool of eligible IT service
providers. AR at 1112–14, 2152–54, 2643–45. An offeror secures such a position by preparing a
proposal that presents “the most favorable terms,” relative to other offerors’ submissions, by
maximizing points earned for Relevant Experience; Past Performance; Systems, Certifications,
and Clearances; and Risk Assessment. See Competition, Merriam-Webster’s Collegiate
Dictionary (11th ed. 2003); AR at 1114–18, 2154–58, 2645–49. By capping the number of firms
allowed within each Solicitation pool, GSA has ensured that certain offerors will be excluded
15
Plaintiffs argue the term “competing offers” is subject to multiple interpretations due to
statements made by the SBA in the Federal Register Final Rule Notice for 13 C.F.R. § 125.9. See
SHS MJAR at 21; VCH MJAR at 21; Oral Arg. Tr. at 20:5–23:6; 85 Fed. Reg. at 66168. The SBA
made the referenced statement to address a specific hypothetical posed during the Notice &
Comment period for Section 125.9. 85 Fed. Reg. 66168. The hypothetical involved a single
solicitation for an IDIQ contract that encompassed separate pools for small business, WOSB, and
SDVOSB offerors. Id. The commenter queried whether two mentor-protégé JVs with the same
mentor could bid on the single solicitation but compete for different pools under the solicitation.
Id. In addressing the hypothetical, the SBA noted the “same mentor could submit an offer as a
joint venture with one protégé for one pool and another offer as a joint venture with a second
protégé for a different pool on the same solicitation because they would not be deemed competitors
with respect to that procurement.” Id. Thus, proposals submitted on different pools are not
competing offers, even if submitted under a single solicitation. However, the natural corollary to
this notion is that proposals submitted for the same pool likely would be considered competing
offers. The outcome, according to the SBA, depended on an “interpretation of what ‘competing
offers’ means” as used in 13 C.F.R. § 125.9(b)(3)(i). Id. Far from suggesting unfettered
interpretations exist for what may constitute a “competing offer,” SBA’s commentary suggests
“competing offers” do exist under the Polaris Solicitations at the IDIQ level, where two mentor-
protégé JVs would be forced to compete for positions within the same pool.
28
entirely from receiving IDIQ contract awards. 16 AR at 1113–14, 2153–54, 2644–45. In other
words, the Solicitations force GSA to choose winners and losers. 17 Yet, Plaintiffs suggest that the
self-scoring structure of the Polaris Solicitations eliminates the competitive nature of the
procurement. See, e.g., SHS MJAR at 21–22 (“[T]o the extent ‘competing offers’ even exist[], [it]
is with each bidder itself, and its own business judgment in forming a team and what score it thinks
is enough to merit an award.”) (emphasis in original); VCH MJAR at 21–22 (same); Oral Ar. Tr.
at 10:5–7 (“[C]ompetition involves . . . some sort of tradeoff between offerors, some sort of
evaluation of how offerors are against one another, and that’s not the case here. The case here is
how each offeror stacks up on its own.”). This is incorrect.
Plaintiffs’ assertion ignores the evaluation process outlined within the Solicitations. In
compliance with each Polaris Solicitation, GSA will evaluate, verify, and rank the proposals
16
Plaintiffs’ counsel ultimately agreed with this understanding of the Solicitations’ structure
during Oral Argument. See Oral Arg. Tr. at 9:14–19 (“[I]f an offeror does not have the same
number of points, if it’s the 130th offeror and it doesn’t have the same number of points as the
90th offeror, then the solicitation says the 90th offeror gets in and the 130th doesn’t.”).
17
Plaintiffs suggest that the Solicitation provision permitting ties in the final position in each pool
eliminates competition from the procurement because it purportedly renders the size of each pool
limitless. SHS MJAR at 21–22; VCH MJAR at 21–22; see Pl. Reply at 8. This argument is a red
herring. Under the Solicitations’ scoring scheme, an offeror’s proposal can earn a maximum of
95,000 points. AR at 1118, 2158, 2649. Those points are allocated between the four primary
evaluation factors: (1) Relevant Experience; (2) Past Performance; (3) Systems, Certifications, and
Clearances; and (4) Risk Assessment. See AR at 1114–18, 2154–58, 2645–49. These four primary
factors, in turn, are further segregated into several layers of sub-criteria, each with independently
assigned points totals. See AR at 1114–18, 2154–58, 2645–49. For example, offerors can earn
varying amounts of points for Relevant Experience based on the contract value of the projects
submitted, the degree of demonstrated experience with multiple federal government customers,
and the breadth of relevant experience demonstrated, among other sub-criteria. See AR at 1114–
18, 2154–58, 2645–49. Given the wide variety of points-generating criteria, it defies reason to
suggest that a problematic number of offerors will prepare proposals with identical scores in the
pool’s final position. Furthermore, Plaintiffs failed to offer convincing evidence to demonstrate
that there is a high likelihood ties will occur at any position, let alone at precisely the final position
in a pool. See, e.g., SHS MJAR at 22 (citing, without further elaboration, “common industry
knowledge” to assert that successful offerors will prepare proposals with “a perfect or near-perfect
score”); VCH MJAR at 22 (same).
29
against one another to ensure only the highest-rated, technically qualified offerors receive an
award. AR at 2856 (“For Polaris, the best value basis for awards will be determined by the Highest
Technically Rated Qualifying Offerors.”); AR at 1113–14, 2153–54, 2644–45 (acknowledging the
agency will “rank[] the proposals in order from highest total claimed score to lowest total claimed
score”). The Solicitations’ self-scoring points system merely offers a numerical method to
evaluate an offeror’s ability to meet the agency’s needs, as expressed through the Solicitations’
stated evaluation criteria. Correspondingly, the ranking and verification process inherently
compares the relative strength of each proposal against proposals submitted by competing offerors,
thereby eliminating from consideration those offerors that fail to prepare the highest-scoring
proposals. Contractors in every government procurement must make strategic decisions about
how to best design a proposal to achieve award. See Defendant’s Reply in Support of its Cross-
MJAR (Def. Reply) at 8 (“Competition in a business context always involves choices and decisions
by contractors about how to structure a proposal in order to try to receive an award.”). Such an
exercise is a hallmark of competition rather than evidence that competition is lacking. Thus, this
Court must conclude the offers submitted on the Polaris Solicitations are indeed “competing
offers” under Section 125.9(b)(3)(i). 18
C. Plaintiffs’ Arguments Alleging Harms to Protégés Merely Reflect
Plaintiffs’ Disagreement with SBA’s Regulations.
Plaintiffs argue GSA’s decision to apply 13 C.F.R. § 125.9(b)(3)(i) to the Polaris
Solicitations lacks a rational basis because it conflicts with SBA regulations defining the structure
18
At Oral Argument, Defendant’s counsel suggested that under the Solicitations’ terms, a mentor-
protégé JV could act as a subcontractor on a proposal for a position in a pool in which another
mentor-protégé joint venture with the same mentor is already competing. See Oral Arg. Tr. at
53:1–57:17. This Court disagrees with such an interpretation of the Solicitations and would
consider this circumstance as constituting “competing offers” under 13 C.F.R. § 125.9(b)(3)(i).
30
of mentor-protégé relationships and ultimately harms protégés. See SHS MJAR at 21–23; VCH
MJAR at 21–23. These arguments, however, are unpersuasive.
Certain SBA regulations require that the protégé member of the JV control the JV’s
operations. See SHS MJAR at 22; VCH MJAR at 22; see, e.g., 13 C.F.R. § 125.8(b)(2)(ii) (making
the protégé member the JV’s managing venturer charged with making day-to-day decisions for the
JV); 13 C.F.R. § 125.8(b)(2)(iii) (requiring the protégé member to own at least 51% of the joint
venture). According to Plaintiffs, these regulations indicate that mentors could never submit
competing offers through two mentor-protégé JVs because the authority to make decisions for the
JV rests squarely with the protégé. SHS MJAR at 22; VCH MJAR at 22. It is the protégé who
decides whether to submit proposals on future procurements, and excluding mentor-protégé JVs
from proposing on a solicitation due to Section 125.9(b)(3)(i) unnecessarily prevents protégés from
accessing opportunities to grow as a business. SHS MJAR at 22–23; VCH MJAR at 22–23.
Such a critique, however, merely highlights Plaintiffs’ disagreement with the SBA’s
regulations and does not suggest arbitrary and capricious conduct by GSA. Section 125.9(b)(3)(i)
states that a “mentor . . . cannot submit competing offers in response to a solicitation for a specific
procurement through separate joint ventures with different protégés.” 13 C.F.R. § 125.9(b)(3)(i).
Adopting an interpretation that mentors can never actually submit competing offers under the
SBA’s regulations would presume the SBA passed a regulation (Section 125.9(b)(3)(i)) that has
no practical application or purpose. This Court will not fault GSA for interpreting Section
125.9(b)(3)(i) in a manner that gives the provision meaning, despite any apparent incongruities
which exist across the various SBA regulations. Sullivan v. McDonald, 815 F.3d 786, 790 (Fed.
Cir. 2016) (“[W]e attempt to give full effect to all words contained within that statute or regulation,
thereby rendering superfluous as little of the statutory or regulatory language as possible.”)
31
(quoting Glover v. West, 185 F.3d 1328, 1332 (Fed. Cir. 1999)). Further, Plaintiffs’ argument that
GSA’s interpretation of 13 C.F.R. § 125.9(b)(3)(i) harms protégés has broad implications. If
exclusion from bidding on the SB Solicitation indeed harms either protégé member of SHS or
VCH, perhaps this suggests the mentor-protégé relationships should not have been approved in the
first instance. See 13 C.F.R. § 125.9(b)(3) (“In order for SBA to agree to allow a mentor to have
more than one protégé at [a] time, the mentor and proposed additional protégé must demonstrate
that the added mentor-protégé relationship will not adversely affect the development of either
protégé firm (e.g., the second firm may not be a competitor of the first firm).”) (emphasis added).
It does not suggest, however, that GSA should simply ignore 13 C.F.R. § 125.9(b)(3)(i).
For the foregoing reasons, this Court holds GSA correctly excluded Plaintiffs from
submitting proposals on the SB Pool Solicitation pursuant to 13 C.F.R. § 125.9(b)(3)(i).
II. The Polaris Solicitations Violate SBA Regulations Governing How an Agency
May Evaluate Mentor-Protégé, WOSB, and SDVOSB JV Offerors During a
Procurement.
In their second claim, Plaintiffs argue that the Polaris Solicitations violate SBA regulation
13 C.F.R. § 125.8(e), 19 which governs joint venture offerors on government procurements and
19
Plaintiffs allege that in addition to violating 13 C.F.R. § 125.8, the Polaris Solicitations violate
13 C.F.R. §§ 127.506 and 125.18. See SHS MJAR at 27; VCH MJAR at 27. These regulations
address SBA requirements for WOSB and SDVOSB offerors, respectively. See 13 C.F.R.
§ 127.506; 13 C.F.R. § 125.18 (2022). However, in their MJARs, both parties’ arguments focus
primarily on the Polaris Solicitations’ alleged violation of 13 C.F.R. § 125.8, the regulation
governing mentor-protégé JV offerors. See generally SHS MJAR at 26–34; VCH MJAR at 26–
34; Pl. Reply at 13–22; Cross-MJAR at 38–51; Def. Reply at 14–23. Accordingly, this Court will
likewise focus its discussion on Section 125.8 and other regulations governing mentor-protégé JV
offerors. However, to the extent there is overlap between the regulations governing mentor-
protégé JVs and the regulations governing WOSB and SDVOSB JVs, the Court’s holdings on the
former apply with equal force to the latter.
Further, both parties’ MJAR briefs cite 13 C.F.R. § 125.18 as the relevant SBA regulation
governing SDVOSB offerors for purposes of this protest. See, e.g., SHS MJAR at 27; VCH MJAR
at 27; Cross-MJAR at 39; see also 13 C.F.R. § 125.18 (2022). However, effective January 1, 2023,
32
prescribes specific rules applicable to mentor-protégé JV offerors. See generally SHS MJAR at
26–34; VCH MJAR at 26–34; Pl. Reply at 13–22; 13 C.F.R. § 125.8. Section 125.8(e) reads as
follows:
When evaluating the capabilities, past performance, experience, business systems
and certifications of an entity submitting an offer for a contract set aside or reserved
for small business as a joint venture established pursuant to this section, a procuring
activity must consider work done and qualifications held individually by each
partner to the joint venture as well as any work done by the joint venture itself
previously. A procuring activity may not require the protégé firm 20 to individually
meet the same evaluation or responsibility criteria as that required of other offerors
generally. The partners to the joint venture in the aggregate must demonstrate the
past performance, experience, business systems and certifications necessary to
perform the contract.
13 C.F.R. § 125.8(e). 21
all SBA regulations pertaining to SDVOSBs were moved to 13 C.F.R. § 128.400, et seq. See 13
C.F.R. § 128.400–408. The language previously incorporated in 13 C.F.R. § 125.18(b)(5), which
is the provision specifically addressed in the parties’ briefs, was moved to 13 C.F.R. § 128.402(f).
Compare 13 C.F.R. § 125.18(b)(5) (2022), with 13 C.F.R. § 128.402(f). Because the Polaris
Solicitations were issued and this protest was filed in 2022, prior to the regulatory change, this
Court will reference 13 C.F.R. § 125.18 throughout this Memorandum.
20
The term “protégé firm” appears only once in Section 125.8. See 13 C.F.R. § 125.8(e).
However, the term is used extensively throughout 13 C.F.R. § 125.9, which governs the Mentor-
Protégé Program, to describe the protégé member of a mentor-protégé JV. See 13 C.F.R. § 125.9.
For example, Section 125.9(c) discusses the requirements to qualify as a “protégé firm” and obtain
a mentor through the Mentor-Protégé Program. 13 C.F.R. § 125.9(c). Likewise, Section
125.9(d)(3)(iii) states that if a “protégé firm no longer qualifies as a small business . . . any joint
venture between the protégé and its mentor will no longer be able to seek additional contracts or
subcontracts as a small business.” 13 C.F.R. § 125.9(d)(3)(iii) (emphasis added). Finally, Section
125.9(h)(1)(iii), which outlines consequences for when a mentor fails to provide the required
assistance to its protégé, draws a clear distinction between the protégé firm and the joint venture
entity: “Where a protégé firm is able to independently complete performance of any such contract,
SBA may recommend to the procuring agency to authorize a substitution of the protégé firm for
the joint venture.” 13 C.F.R. § 125.9(h)(1)(iii). These provisions, among others, clarify that the
term “protégé firm,” as used in Section 125.8(e), references the protégé member of the mentor-
protégé JV, rather than the JV itself.
21
See 13 C.F.R. § 127.506(f) (“When evaluating the capabilities, past performance, experience,
business systems, and certifications of an entity submitting an offer for an EDWOSB or WOSB
contract as a joint venture established pursuant to this section, a procuring activity must consider
work done and qualifications held individually by each partner to the joint venture as well as any
33
Plaintiffs assert certain requirements contained in the Polaris Solicitations violate Section
125.8(e)’s limitation that “[a] procuring activity may not require the protégé firm to individually
meet the same evaluation or responsibility criteria as that required of other offerors generally.” 13
C.F.R. § 125.8(e). First, Plaintiffs criticize the Solicitations’ requirement that for mentor-protégé
JV offerors, “a minimum of one Primary Relevant Experience Project or Emerging Technology
Relevant Experience Project must be from the Protégé or the offering Mentor-Protégé Joint
Venture.” SHS MJAR at 28 (citing the Solicitations); VCH MJAR at 28 (same); see AR at 1088,
2127, 2619. 22 Plaintiffs do not dispute that under 13 C.F.R. § 125.8(e), the agency must require
the protégé to submit a Relevant Experience Project for consideration. See Pl. Reply at 16 (“[T]he
question of whether or not the Agency should consider or require a Relevant Experience project
from a protégé (or the protégé by virtue of its joint venture) is not in dispute.”) (emphasis in
work done by the joint venture itself previously. A procuring activity may not require the
EDWOSB or WOSB small business concern to individually meet the same evaluation or
responsibility criteria as that required of other offerors generally. The partners to the joint venture
in the aggregate must demonstrate the past performance, experience, business systems, and
certifications necessary to perform the contract.”); 13 C.F.R. § 125.18(b)(5) (2022) (“When
evaluating the capabilities, past performance, experience, business systems, and certifications of
an entity submitting an offer for an SDVO contract as a joint venture established pursuant to this
section, a procuring activity must consider work done and qualifications held individually by each
partner to the joint venture as well as any work done by the joint venture itself previously. A
procuring activity may not require the SDVO SBC to individually meet the same evaluation or
responsibility criteria as that required of other offerors generally. The partners to the joint venture
in the aggregate must demonstrate the past performance, experience, business systems, and
certifications necessary to perform the contract.”).
22
In addition to the requirement placed on mentor-protégé JVs, the WOSB and SDVOSB
Solicitations include the additional requirement that, for JVs involving WOSB or SDVOSB
members, at least one Primary Relevant Experience Project or Emerging Technology Relevant
Experience Project must be from a WOSB or SDVOSB member of the JV, respectively, or from
the offering JV itself. See AR at 2127, 2619. These Solicitations also include the requirement that
for any WOSB or SDVOSB offerors, including small business teaming arrangements, “[a]
minimum of one Primary Relevant Experience Project or Emerging Technology Relevant
Experience Project must be from” a WOSB or SDVOSB, respectively. AR at 2132, 2624.
34
original). Instead, Plaintiffs assert the Solicitations impose a heightened 23 evaluation criterion on
protégé firms relative to offerors generally by “allow[ing] prime/subcontractor teams to obtain all
Relevant Experience projects from subcontractors, while protégé firms and their joint ventures
must produce one of their own projects independent of any subcontractors they propose.” SHS
MJAR at 28–30; VCH MJAR at 28–30 (same). Second, Plaintiffs argue that the Solicitations
further violate SBA regulations by assessing a protégé’s Relevant Experience Project using the
same evaluation criteria and points scale as projects submitted by offerors generally. See SHS
MJAR at 30–31; VCH MJAR at 30–31.
Defendant disagrees with both of Plaintiffs’ assertions. See generally Cross-MJAR at 38–
51; Def. Reply at 14–23. According to Defendant, the Solicitations “do not require proteges to
meet the same criteria as other offerors” because a protégé (or its associated mentor-protégé JV)
is only required to individually provide one Relevant Experience Project, whereas “an offeror must
demonstrate at least three Primary Relevant Experience projects.” Cross-MJAR at 38 (emphasis
in original). Defendant also argues that Plaintiffs’ assertions fail to perceive “the critical
distinctions between a joint venture offeror, an individual member of that joint venture (such as a
protégé), and a prime contractor offeror working with a subcontractor.” Cross-MJAR at 40
(emphasis in original); see id. at 46 (noting Plaintiffs “incorrectly equate the status of a protégé
with that of the joint venture offeror (within which the protégé sits in a mentor-protégé
relationship)”). Because the Solicitations require either the protégé or the mentor-protégé JV to
23
Both parties agree that the phrase “the same evaluation or responsibility criteria,” as used in
Section 125.8(e), likewise prohibits imposing heightened, or more arduous, evaluation and
responsibility criteria on protégé firms. See, e.g., SHS MJAR at 29 (“[T]he Agency is prohibited
from holding protégés to the same or heightened evaluation requirement.”) (emphasis in original);
VCH MJAR at 29 (same); Oral Arg. Tr. at 72:5–12 (Court: “[W]ould you agree that it would not
be okay to impose a heightened requirement on the protégés?” Defendant’s Counsel: “[I]f that
were the case here, then, right, we’d be violating 125.8(e).”).
35
submit an individually completed Relevant Experience Project, Defendant contends that GSA has
not imposed any requirement on the “protégé firm” individually that would violate Section
125.8(e). Cross-MJAR at 41. Further, Defendant emphasizes that the points scale included within
the Solicitations measures the offeror’s overall performance and does not individually assess the
protégé firm in a manner that would violate Section 125.8(e). Id. at 46–48.
For the reasons stated below, this Court disagrees with Plaintiffs’ assertion that the Polaris
Solicitations violate 13 C.F.R. § 125.8(e) by requiring (1) the protégé firm or the mentor-protégé
JV to submit an individually performed Relevant Experience Project, and (2) by allowing prime
contractor offerors to submit projects performed by first-tier subcontractors to satisfy the
Solicitations’ Relevant Experience Requirement. However, this Court agrees with Plaintiffs that
the Polaris Solicitations violate Section 125.8(e) by applying the same evaluation criteria both to
projects submitted by protégés and to those projects submitted by offerors generally.
A. GSA Did Not Violate SBA Regulations by (1) Requiring the Protégé or
Mentor-Protégé JV to Submit an Individually Performed Relevant
Experience Project, or (2) Allowing Prime Contractors to Rely on
Projects Performed by First-Tier Subcontractors.
Plaintiffs claim the Polaris Solicitations’ requirements for evaluating Relevant Experience
Projects creates a disparity between offerors that hinders protégé firms and violates 13 C.F.R.
§ 125.8(e). As noted, the Polaris Solicitations state: “For offers from SBA Mentor-Protégé joint
ventures, a minimum of one Primary Relevant Experience Project or Emerging Technology
Relevant Experience Project must be from the Protégé or the offering Mentor-Protégé Joint
Venture. No more than three Primary Relevant Experience Projects may be provided by the
Mentor.” AR at 1088, 2127, 2619. However, the Solicitations do not contain an analogous
provision requiring prime contractor offerors to submit individually performed projects. See
generally AR at 1021–1144, 2060–2184, 2550–2674. Instead, the Solicitations permit prime
36
contractors to submit projects entirely performed by the first-tier subcontractors listed on the
proposal. See AR at 1090, 2129, 2620 (stating that, generally, “Relevant Experience Projects may
be from the Offeror or any proposed subcontractor”). According to Plaintiffs, requiring the protégé
or the mentor-protégé JV to submit an individually performed project, without placing the same
requirement on prime contractor offerors, arbitrarily limits the field of projects available for
submission by protégé firms. SHS MJAR at 28–30; VCH MJAR at 28–30 (same). This, Plaintiffs
contend, violates Section 125.8(e) because it purportedly subjects protégés to heightened
evaluation criteria as compared to offerors generally and makes it harder for mentor-protégé JVs
to compete against more experienced firms with larger portfolios of past work. SHS MJAR at 28–
30; VCH MJAR at 28–30 (same).
As noted, this Court applies the same interpretive rules to analyze both statutes and federal
regulations. See Boeing, 983 F.3d at 1327 (citing Mass. Mut. Life Ins. Co., 782 F.3d at 1365); see
also supra Discussion Section I. It is a “fundamental canon of statutory construction that the words
of a statute must be read in their context and with a view to their place in the overall statutory
scheme.” Nielson v. Shinseki, 607 F.3d 802, 807 (Fed. Cir. 2010) (quoting FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 133, (2000)); see Obsidian Sols. Grp., LLC v. United
States, 54 F.4th 1371, 1374 (Fed. Cir. 2022) (quoting King v. Burwell, 576 U.S. 473, 486 (2015))
(“We do not look at the text in a vacuum, but rather, we must consider the words ‘in their context
and with a view to their place in the overall statutory scheme.’”). Therefore, this Court may not
construe Section 125.8(e) in isolation and must instead interpret the provision as part of a
“symmetrical and coherent regulatory scheme . . . fit[ting], if possible, all parts into [a] harmonious
whole.” Nielson, 607 F.3d at 807 (quoting Brown & Williamson Tobacco Corp., 529 U.S. at 133)
(internal quotation marks omitted).
37
In arguing the Polaris Solicitations create an illegal disparity between offerors based on the
type of project each offeror may submit for evaluation, Plaintiffs ignore the broader regulatory
regime governing small business procurements. By SBA regulation, agencies “evaluating the
capabilities, past performance, experience, business systems and certifications of . . . a joint
venture [offeror] . . . must consider work done and qualifications held individually by each partner
to the joint venture.” 13 C.F.R. § 125.8(e); 15 U.S.C. § 644 (federal statute requiring agencies,
“[w]hen evaluating an offer of a joint venture of small business concerns” for certain multiple
award contracts, to “consider the capabilities and past performance of each member of the joint
venture as the capabilities and past performance of the joint venture”). 24 As Plaintiffs
acknowledge, the requirement to individually assess the capabilities of JV members applies
equally to mentor-protégé JVs. Oral Arg. Tr. at 27:23–28:1 (Plaintiffs’ Counsel: “There’s no
question that the protégé has to submit its own experience. . . . We’ve never disputed that that is
the case.”). Thus, both parties agree requiring a protégé firm to submit an individually performed
project complies with Section 125.8(e). See, e.g., id.; Cross-MJAR at 42–44.
Plaintiffs’ true concern, therefore, lies in the fact that the Polaris Solicitations allow prime
contractor offerors to rely on subcontractor projects, giving prime contractors greater flexibility in
the projects they may submit for evaluation. Yet, Plaintiffs’ position fails to acknowledge that
another SBA Regulation, 13 C.F.R. § 125.2, mandates such flexibility for prime contractors.
Section 125.2, which governs the Polaris Solicitations as small business set-aside procurements,
24
The GAO has affirmed that SBA regulations require agencies to evaluate the capabilities and
experience of the individual members of a JV offeror, including mentor-protégé JVs. See, e.g.,
AttainX, Inc., B-421216, B-421216.2, 2023 WL 1860802, at *7 (Comp. Gen. Jan. 23, 2023) (“SBA
regulations require the agency to evaluate each joint venture member individually when the joint
venture itself does not demonstrate it has the required experience; the agency does not have license
to ignore SBA regulations in its evaluation.”). Though not binding on this Court, the GAO’s
decision is persuasive authority.
38
lists a “procuring agency’s responsibilities when providing contracting assistance to small
businesses.” 13 C.F.R. § 125.2. Specifically, Section 125.2(g) addresses how a procuring agency
should treat projects completed by the first-tier subcontractors listed on an offeror’s proposal,
stating:
When an offer of a small business prime contractor includes a proposed team of
small business subcontractors and specifically identifies the first-tier
subcontractor(s) in the proposal, the head of the agency must consider the
capabilities, past performance, and experience of each first tier subcontractor that
is part of the team as the capabilities, past performance, and experience of the small
business prime contractor if the capabilities, past performance, and experience of
the small business prime does not independently demonstrate capabilities and past
performance necessary for award.
13 C.F.R. § 125.2(g). 25 Said differently, if a prime contractor lacks the experience necessary for
award, this provision requires the procuring agency to treat the experiences of first-tier
subcontractors as if they belonged to the prime contractor. See Oral Arg. Tr. at 67:24–68:1
(Defendant’s Counsel: “GSA is obligated to consider and to take into account the first-tier
subcontractor’s experience under SBA regulations.”). Thus, the SBA’s regulatory regime
mandates the precise disparity that underlies Plaintiffs’ concerns: Section 125.8(e) requires the
agency to evaluate the individual performance of a mentor-protégé JV’s protégé member, and
Section 125.2(g) requires that the agency allow prime contractors to submit projects completely
performed by subcontractors. See 13 C.F.R. §§ 125.8(e), 125.2(g). In navigating Sections 125.8(e)
and 125.2(g), respectively, GSA drafted the Polaris Solicitations to (1) require protégé firms to
submit one Relevant Experience Project for consideration, and (2) allow prime contractors to rely
25
In their MJAR briefs, Plaintiffs originally argued that the Polaris Solicitations violated Section
125.2(g) by preventing mentor-protégé JVs from using subcontractor projects to fulfill all Relevant
Experience Project requirements. See SHS MJAR at 32–34; VCH MJAR at 32–34; Pl. Reply at
21–22. However, at Oral Argument, Plaintiffs’ counsel agreed with Defendant that Section
125.2(g) does not apply to mentor-protégé JVs. See Oral Arg. Tr. at 33:13–19 (“[W]e do not
believe that 125.2 applies to the . . . mentor-protégé joint venture . . . [, and] 13 CFR 125.8(e) is
the rule that applies to mentor-protégé joint ventures.”).
39
solely on Relevant Experience Projects completed by their first-tier subcontractors. Any resulting
disparity in the nature of the projects available for submission by different offerors does not reflect
an arbitrary decision by the agency to disadvantage mentor-protégé JV offerors, but instead reflects
a reasonable attempt to comply with the complex regulatory regime governing the procurement.
Plaintiffs, therefore, are incorrect to assert that this aspect of the Polaris Solicitations violates
Section 125.8(e).
B. The Polaris Solicitations Violate Section 125.8(e) by Applying the Same
Evaluation Criteria to Assess Relevant Experience Projects Submitted
by Protégé Firms and by Offerors Generally.
Plaintiffs next assert that by applying the same evaluation criteria for Relevant Experience
to the projects submitted by all offerors, including protégé firms, the Polaris Solicitations violate
the requirement in 13 C.F.R. § 125.8(e) that “[a] procuring activity may not require the protégé
firm to individually meet the same evaluation or responsibility criteria as that required of other
offerors generally.” 13 C.F.R. § 125.8(e); see SHS MJAR at 30–31; VCH MJAR at 30–31. 26 To
reiterate, under the Polaris Solicitations, GSA will award IDIQ contracts to the highest technically
rated qualifying proposals based on how well the proposals score on the Solicitations’ standardized
points system. See AR at 1112–13, 2152–53, 2643–44. The same standardized point system is
applicable to all offerors under the current Solicitations. Offerors are awarded points based on
how well their proposals comply with the Solicitations’ four primary “evaluation factors”:
(1) Relevant Experience; (2) Past Performance; (3) Systems, Certifications, and Clearances; and
(4) Risk Assessment. See AR at 1112–18, 2152–58, 2643–49. Underneath each evaluation factor,
the Solicitations list additional sub-factors that the proposals must meet to earn maximum points.
26
See supra note 23 (noting the parties agree that “the same evaluation or responsibility criteria,”
as used in Section 125.8(e), prohibits agencies from imposing heightened, or more onerous, criteria
on protégé firms).
40
See AR at 1112–18, 2152–58, 2643–49. For example, offerors can earn additional points for
Relevant Experience by submitting (1) projects with high contract values; (2) projects completed
for various government customers; (3) cost-reimbursement projects; (4) task order awards on
multiple-award contracts; (5) projects outside the contiguous United States; (6) projects related to
cybersecurity experience; (7) projects demonstrating a breadth of technological experiences; and
(8) projects that demonstrate breadth of experience in emerging technology. See AR at 1112–18,
2152–58, 2643–49. Each of these sub-factors appears as an entry on the Solicitations’ scoring
tables, and GSA awards points based on the degree to which each submitted project satisfies each
sub-factor. See AR at 1112–18, 2152–58, 2643–49. Offerors are then sorted into and out of the
IDIQ pools based on their verified scores for all evaluation factors. AR at 1113–14, 2153–54,
2644–45.
The parties disagree on whether the Polaris Solicitations as designed subject protégé firms
to the same evaluation criteria for Relevant Experience as offerors generally, in contravention of
Section 125.8(e). Plaintiffs answer this question in the affirmative, on the basis that GSA intends
to use the same evaluation factors and points table to evaluate all projects, including those
submitted individually by the protégé firm. See SHS MJAR at 30–31; VCH MJAR at 30–31.
Plaintiffs express particular concern over the sub-factor applicable to Primary Relevant Experience
Projects that provides offerors additional points based on a project’s contract value. See SHS
MJAR at 30–31; VCH MJAR at 30–31. According to Plaintiffs, this provision violates Section
125.8(e) because both protégé firms and offerors generally must submit projects with the same
contract value, specifically $10 million, to receive maximum points for the project. See SHS
MJAR at 30–31; VCH MJAR at 30–31. In contrast, Defendant argues the Polaris Solicitations do
not require protégé firms to meet the same evaluation criteria as offerors generally because the
41
protégé firm must only submit one Relevant Experience Project, either Primary or Emerging
Technology, whereas offerors generally must submit at least three Primary Relevant Experience
Projects. Cross-MJAR at 38. For the reasons stated below, this Court agrees with Plaintiffs and
holds that the Polaris Solicitations violate Section 125.8(e) by applying the same evaluation criteria
to all Relevant Experience Projects, regardless of whether the project is submitted by a protégé
firm or by offerors generally.
The plain language of 13 C.F.R. § 125.8(e) requires agencies to measure the individual
capabilities of protégé members of mentor-protégé JVs using alternative evaluation criteria relative
to offerors generally. See 13 C.F.R. § 125.8(e). Section 125.8 details the general requirements a
JV must satisfy “to submit an offer for a procurement or sale set aside or reserved for small
business.” 13 C.F.R. § 125.8. Section 125.8(e) governs the way an agency must “evaluat[e] the
capabilities, past performance, experience, business systems and certifications” of a joint venture
offeror on a small business procurement. 13 C.F.R. § 125.8(e). The regulation begins by requiring
agencies to evaluate not only the capabilities and experience of the JV offeror itself, but also the
“work done and qualifications held individually by each partner to the joint venture.” Id. The
second sentence of Section 125.8(e) further elaborates that in individually evaluating each JV
member, the agency “may not require the protégé firm to individually meet the same evaluation or
responsibility criteria as that required of other offerors generally.” Id. Thus, the second sentence
of Section 125.8(e) informs agencies how to comply with the requirements detailed in the Section’s
first sentence: in measuring the protégé firm’s individual capabilities and experience, the agency
must assess the protégé firm using different evaluation criteria than the criteria applied to other
42
offerors generally. 27 See Obsidian Sols. Grp., 54 F.4th at 1374 (quoting King, 576 U.S. at 486)
(urging courts to avoid interpreting text “in a vacuum” and to instead “consider the words ‘in their
context’”). Section 125.8(e) concludes by stating as long as “the joint venture in the aggregate . . .
demonstrate[s] the past performance, experience, business systems and certifications necessary to
perform the contract,” the JV offeror is eligible for award. 13 C.F.R. § 125.8(e).
To determine the precise agency conduct prohibited by Section 125.8(e)’s second sentence,
this Court must first interpret the plain meaning of “evaluation criteria.” Boeing, 983 F.3d at 1326
(“In construing a statute or regulation, we begin by reviewing its language to ascertain its plain
meaning.”) (quoting Am. Airlines, Inc. v. United States, 551 F.3d 1294, 1299 (Fed. Cir. 2008)).
SBA regulations do not expressly define “evaluation criteria,” so this Court once again consults
the dictionary to determine the plain meaning of the term. See Mass. Mut. Life Ins. Co., 782 F.3d
at 1367 (quoting Am. Express, 262 F.3d at 1381 n.5). “Criteria” is the plural form of “criterion,”
which is defined as “a standard on which a judgment or decision may be based.” Criterion,
Merriam-Webster’s Collegiate Dictionary (11th ed. 2003). The term “evaluation” is used as an
adjective to modify “criteria” and clarifies precisely which type of criteria the SBA intended to
address in drafting Section 125.8(e): criteria used for evaluation. To “evaluate” something means
“to determine or fix the value of; to determine the significance, worth, or condition of usu[ally] by
careful appraisal and study.” Evaluate, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003);
27
Such a reading is consistent with how Defendant has described the application of Section
125.8(e). See Cross-MJAR at 40–41 (“SBA’s regulations, specifically at § 125.8(e), provide that,
when evaluating the experience ‘of an entity submitting an offer for a contract set aside or reserved
for small business as a joint venture,’ the procuring agency must consider the work and
qualifications of each partner to the joint venture. 13 C.F.R. § 125.8(e). And in that context, a
procuring agency ‘may not require the protégé firm to individually meet the same evaluation or
responsibility criteria as that required of other offerors generally.’ Id. Thus, the regulation’s
prohibition bars the protégé individually from being required to meet the same evaluation as other
offerors.”) (emphases in original).
43
see Evaluation, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/evaluation (last visited Mar. 30, 2023) (“[T]he act or result of evaluating;
. . . [a] determination of the value, nature, character, or quality of something or someone.”). Thus,
by its plain meaning, “evaluation criteria” as used in the second sentence of Section 125.8(e)
addresses the standards with which an agency intends to “determine or fix the value . . . [,]
significance, worth, or condition” of a protégé firm’s “capabilities, past performance, experience,
business systems and certifications.” Evaluate, Merriam-Webster’s Collegiate Dictionary (11th
ed. 2003); 13 C.F.R. § 125.8(e).
Based on this understanding of “evaluation criteria,” the Polaris Solicitations violate
Section 125.8(e). To comply with Section 125.8(e)’s requirement that agencies assess the
individual capabilities of each JV member, the Solicitations require protégé firms to submit one
individually performed Relevant Experience Project for evaluation. See AR at 1088, 2127, 2619;
13 C.F.R. § 125.8(e). The Polaris Solicitations indicate that “[t]he Government will evaluate
proposals in accordance with the instructions and evaluation criteria set forth in Sections L and M
of this solicitation.” AR at 1085, 2124, 2614 (emphasis added). Section L lists the four scored
evaluation factors each proposal must satisfy (Relevant Experience; Past Performance; Systems,
Certifications, and Clearances; and Risk Assessment) and defines various sub-factors offerors may
demonstrate to earn maximum points for each primary evaluation factor (e.g., contract value,
breadth of relevant experience, experience with multiple government customers, etc.). AR at
1083–1111, 2122–51, 2613–42. Section M reiterates the “evaluation factors for award,” describes
the Polaris Solicitations’ evaluation procedures, and includes a scoring table that allocates points
to each evaluation factor and sub-factor introduced in Section L. AR at 1112–19, 2152–59, 2643–
44
50. 28 However, the Solicitations do not incorporate distinct evaluation criteria that offerors and
GSA should use to evaluate the protégé firm’s individual project. Instead, in evaluating and
awarding points for the protégé’s Relevant Experience Project, GSA intends to use the same
evaluation criteria, or the same evaluation sub-factors and scoring table, to assess every project
submitted for consideration, including that of the protégé. This is precisely the circumstance that
Section 125.8(e) precludes. 29
28
The terms “evaluation factor” and “evaluation subfactor” appear frequently throughout federal
procurement statutes, SBA regulations, and the FAR to describe the criteria used to evaluate
procurements. See, e.g., 41 U.S.C. § 3306(c)(1) (titled “Evaluation factors,” and stating “[i]n
prescribing the evaluation factors to be included in each solicitation for competitive proposals, an
executive agency shall . . . establish clearly the relative importance assigned to the evaluation
factors and subfactors, including the quality of the product or services to be provided (including
technical capability, management capability, prior experience, and past performance of the
offeror)”); 13 C.F.R. § 125.2(b)(1)(iii)(D) (discussing “evaluation factors” for “evaluating the
offerors’ proposed approach to small business subcontracting participation”). For example, FAR
15.304 is titled “Evaluation factors and significant subfactors” and is included among the FAR
provisions outlining the source selection procedures for competitive negotiated acquisitions. See
FAR 15.304. The provision states that “[t]he award decision is based on evaluation factors and
significant subfactors that are tailored to the acquisition.” FAR 15.304(a). “Evaluation factors
and significant subfactors must . . . [r]epresent the key areas of importance and emphasis to be
considered in the source selection decision; and . . . [s]upport meaningful comparison and
discrimination between and among competing proposals.” FAR 15.304(b). Likewise, FAR
15.305(a), which addresses “Proposal evaluation” for competitive negotiated acquisitions, states:
“An agency shall evaluate competitive proposals and then assess their relative qualities solely on
the factors and subfactors specified in the solicitation. Evaluations may be conducted using any
rating method or combination of methods, including color or adjectival ratings, numerical weights,
and ordinal rankings.” FAR 15.305(a). Finally, FAR 15.306(c), which discusses the
establishment of a competitive range in competitive negotiated procurements, states that
“[a]gencies shall evaluate all proposals in accordance with 15.305(a), and, if discussions are to be
conducted, establish the competitive range. Based on the ratings of each proposal against all
evaluation criteria, the contracting officer shall establish a competitive range comprised of all of
the most highly rated proposals . . . .” FAR 15.306(c)(1) (emphasis added). This last provision
draws a direct link between the term “evaluation criteria” and the specific “evaluation factors” and
“evaluation subfactors” included in solicitations that agencies use to make source selection
decisions.
29
Though not binding on this Court, statements made by GAO in Innovate Now are instructive in
their concision: “The plain language of the regulation is clear; a procuring agency may not require
a protégé firm to individually meet the same evaluation requirements as those imposed on other
offerors.” Innovate Now, LLC, B-419546, 2021 WL 1610896, at *2 (Comp. Gen. Apr. 26, 2021).
45
Defendant argues that the Polaris Solicitations do not subject protégé firms to the same
evaluation criteria as other offerors purely because protégés must only submit one Relevant
Experience project, whereas other offerors must submit at least three Primary Relevant Experience
Projects. Cross-MJAR at 38. However, this assertion glosses over the way in which GSA intends
to evaluate Relevant Experience Projects under the Solicitations. To self-score their proposals for
Relevant Experience, offerors (with later verification by GSA) assess each Relevant Experience
Project on an individual basis to determine how well each project satisfies the Solicitations’
various evaluation requirements. See AR at 1113–18, 2153–58, 2644–49. Points are awarded to
an offeror for each sub-factor that the offeror’s projects satisfy. See AR at 1113–18, 2153–58,
2644–49. The points, therefore, offer a numerical representation of the degree to which each
project fulfills the terms of the Solicitations.
Some points are awarded based on a project’s individual compliance with certain sub-
factors on the scoring table. For example, “[f]or each Relevant Experience Project submitted under
L.5.2.2, the Offeror will receive additional points if the Project is a task order awarded against a
Federal Government multiple-award contract . . . .” AR at 1099, 2138, 2630. Thus, each project
submitted can earn additional points simply by virtue of being a task order on another multiple-
award contract. A similar situation exists for the sub-factor designed to evaluate each project’s
size. AR at 1098, 2137, 2628. Under the Solicitations, “[f]or each Relevant Experience Project
submitted under L.5.2.2, the Offeror will receive additional points for Project values as specified
in Section M.6, Polaris Scoring Table.” AR at 1098, 2137, 2628. Below is a depiction of the
scoring table for the project size sub-factor. See AR at 1116, 2156, 2647.
46
Under the scoring table, an offeror can earn a greater number of additional points toward its total
score by submitting projects with larger contract values. Thus, each project with a value of $1
million would earn the offeror an additional 500 points for Relevant Experience, whereas each
project with a value of $10 million would earn an additional 3,000 points. See AR at 1116, 2156,
2647. As the graphic demonstrates, an offeror can add an additional 15,000 points out of the
95,000 total points just by submitting projects with high contract values.
In other cases, offerors earn points toward their total Relevant Experience score based on
the total number of projects an offeror submits that successfully demonstrate a specific evaluation
criterion. This is the case for the sub-factor that assesses the offeror’s experience working with
various federal government customers. Below is a depiction of the scoring table for this sub-factor.
See AR at 1117, 2157, 2648.
Under the Solicitations, an offeror can earn added points “for each additional unique Federal
Government Customer represented beyond the first unique Federal Government Customer.” See
AR at 1098, 2137, 2629. Thus, an offeror whose projects include two unique government
47
customers can earn 500 additional points, whereas an offeror whose projects include five unique
government customers can earn 2,000 additional points. AR at 1098, 2137, 2629. A similar
regime applies to the sub-factor assessing the breadth of an offeror’s relevant experience. See AR
at 1100, 2139, 2631 (“The Offeror will receive additional points for each additional [North
American Industry Classification System] area with demonstrated relevant experience.”).
By focusing its argument on the number of projects protégé firms must submit relative to
offerors generally, Defendant ignores the crucial point that the same evaluation methods and
criteria apply to all projects, regardless of whether the project is submitted by a protégé or another
offeror. The evaluation process under the Polaris Solicitations occurs on a project-by-project basis.
Under either scoring method described above, protégé firms and prime contractors alike must
assess whether each project, on its own, meets the Solicitations’ desired evaluation sub-factors and
award points accordingly. Therefore, though the protégé firm need only submit one Relevant
Experience Project under the Polaris Solicitations, that single protégé project will be evaluated in
precisely the same manner, and based on precisely the same criteria, as all other projects submitted
under the Polaris Solicitations. Thus, the Polaris Solicitations convey the expectation that the
protégé firm’s Relevant Experience Project should be able to demonstrate the same contract value,
the same breadth of relevant or emerging technology experience, and the same variety of
government customers as projects submitted by offerors generally. This is the exact scenario
Section 125.8(e) prohibits. GSA cannot avoid violating Section 125.8(e) simply by reducing the
minimum number of projects the protégé firm must submit when the tools, methods, and criteria
used to evaluate the protégé firm’s project are “the same . . . as that required of other offerors
generally.” 13 C.F.R. § 125.8(e). Such a regime conflicts with the plain language of Section
48
125.8(e), which prohibits agencies from requiring protégé firms to “meet the same evaluation . . .
criteria” as other offerors generally. 30 13 C.F.R. § 125.8(e).
That the Polaris Solicitations allow either the protégé or the offering mentor-protégé JV to
submit an individually performed project for consideration does not alter this Court’s analysis.
The terms of the Polaris Solicitations blur the line between a Relevant Experience Project
submitted by the protégé firm and one submitted by the offering mentor-protégé JV. Specifically,
the Solicitations include a provision instructing the agency that “[a]n Offeror (to include members
of a joint venture and proposed subcontractors) may use experience performed as a member of a
joint venture” to fulfill the Solicitations’ Relevant Experience requirements. AR at 1090, 2129,
30
Defendant suggests the fact that protégé firms may submit either a Primary Relevant Experience
Project or an Emerging Technology Experience Project prevents the Polaris Solicitations from
violating Section 125.8(e). See Cross-MJAR at 47 (“Notably, GSA does not require that the
required protégé project be one of the five Primary Relevant Experience projects. . . . [T]he
protégé’s requirement can be met via submission of one of three optional Emerging Technology
projects performed by the protégé or the offering Joint Venture itself.”); Oral Arg. Tr. at 62:11–15
(Defendant’s Counsel: “The protégé doesn’t have to show up with one primary experience. It
doesn’t have to show up with the experience of doing a project. It can show up with just having
an expertise in quantum computing.”). Implicit in Defendant’s statements is the notion that the
choice between submitting either a Primary or Emerging Technology Relevant Experience Project
somehow introduces flexibility for protégés and represents a less stringent evaluation criterion
than applied to offerors generally. However, these sentiments are belied by statements made by
Defendant’s Counsel during Oral Argument that acknowledge the rarity among small business
contractors of projects demonstrating emerging technologies. See, e.g., Oral Arg. Tr. at 49:20–
50:6 (“[V]ery few offerors will be able to obtain the maximum amount of emerging technology
experience points given the very nature of these emerging technologies. . . . The emerging
technology experiences included past experience with artificial intelligence, edge computing,
immersive technology, advanced and quantum computing. So that’s right. Not everybody is going
to be able to do it. A small business, they’re not all going to be [able to] do that.”). Nevertheless,
regardless of the inherent difficulties in claiming Emerging Technology Relevant Experience, the
criticisms articulated in this Court’s Memorandum and Order apply to the Polaris Solicitations’
evaluation of all Relevant Experience Projects, whether Primary or Emerging Technology: the
Solicitations contemplate applying the same evaluation criteria to all Relevant Experience Projects
submitted by protégé firms and other offerors alike. The choice to hold a protégé firm’s Relevant
Experience Projects to the same standards as projects submitted by offerors contradicts Section
125.8(e) and accordingly is contrary to law.
49
2621. Accordingly, under the terms of the Solicitations, the protégé may already claim any project
performed by the offering mentor-protégé JV as its own Relevant Experience Project. See Pl.
Reply at 19 n.5. (“[T]he requirement that either the protégés [sic] mentor-protégé joint venture or
its protégé submit a Relevant Experience project is an empty distinction because if the protégé’s
joint venture already had that experience, the protégé would still be able to claim it on its own
under the terms of the Solicitations.”). Though the Solicitations appear to offer mentor-protégé
JVs a choice, the choice is rhetorical rather than functional: allowing mentor-protégé JV offerors
to submit projects performed by “the offering Mentor-Protégé Joint Venture” does nothing to
change or expand the field of available projects eligible for submission. AR at 1088, 2127, 2619.
Either way, the protégé firm’s project is subject to evaluation by the agency, and that project is
assessed against the same evaluation criteria used to evaluate projects submitted by offerors
generally. As Plaintiffs’ counsel aptly stated during Oral Argument, the Solicitations’ terms offer
“a distinction without a difference.” Oral Arg. Tr. at 28:23–24.
For the Polaris procurement to proceed, the agency must adjust the evaluation criteria it
applies to assess a protégé firm’s Relevant Experience Project. Agencies “are entitled to exercise
discretion upon a broad range of issues confronting them in the procurement process” so long as
agency choices comply with existing law. Savantage Fin. Servs., Inc. v. United States, 595 F.3d
1282, 1286 (Fed. Cir. 2010) (quoting Impresa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)); see FAR 1.102(d) (granting agencies discretion to
design procurements in the best interests of the agency and within the bounds of the law). Thus,
this Court need not prescribe the precise changes GSA must adopt going forward. Instead, this
Court only offers suggestions for alternative evaluation methods that would address the defects
identified in the current Solicitations, consistent with applicable law.
50
For example, as Plaintiffs have suggested, GSA could award protégé firms maximum
points for projects with smaller contract values. See Oral Arg. Tr. at 34:7–11 (“One way, for
example, would be to reduce the value of the contracts for the mentor-protégé or protégé. So it
doesn’t have to be ten million to get the maximum points, it would have to be one million.”).
Another alternative could be to award a small point premium to protégé projects for each
evaluation criterion satisfied. Finally, as a third and perhaps more sweeping adjustment, GSA
could allow the protégé firm’s project to be submitted in addition to the three to five Primary
Relevant Experience Projects and the potentially three Emerging Technology Relevant Experience
Projects already contemplated under the Solicitations. This project could then be evaluated on a
pass/fail basis based on whether the project complies with the Solicitations’ evaluation criteria and
demonstrates the necessary experience to fulfill the protégé firm’s 40% performance requirement
contained in 13 C.F.R. § 125.8(c). See 13 C.F.R. § 125.8(c)(1) (“[T]he small business partner to
the joint venture must perform at least 40% of the work performed by the joint venture.”).
However, whatever adjustments GSA makes to the evaluation criteria applicable to the protégé
may not force protégé firms to experience a heightened or more onerous burden than what offerors
generally face. See 13 C.F.R. § 125.8(e); see, e.g., SHS MJAR at 29 (“[T]he Agency is prohibited
from holding protégés to the same or heightened evaluation requirement.”) (emphasis in original);
VCH MJAR at 29 (same); Oral Arg. Tr. at 72:5–12 (Court: “[W]ould you agree that it would not
be okay to impose a heightened requirement on the protégés?” Defendant’s Counsel: “[I]f that
were the case here, then, right, we’d be violating 125.8(e).”). Indeed, such a change would be
inconsistent with the express goal of the Mentor-Protégé Program “to improve the protégé firms'
ability to successfully compete for federal contracts.” 13 C.F.R. § 125.9(a).
51
For the reasons set forth above, this Court agrees with Plaintiffs that the Polaris
Solicitations as currently drafted violate 13 C.F.R. § 125.8(e) by applying the same evaluation
criteria to projects submitted by protégé firms and other offerors alike. Should Defendant proceed
with the Polaris procurement, it must amend the current Solicitations to comply with 13 C.F.R.
§ 125.8(e), in a manner consistent with this Memorandum and Order.
III. The Polaris Solicitations Violate Federal Procurement Law by
Inappropriately Relying on 41 U.S.C. § 3306(c)(3) to Exclude Price as an
Evaluation Factor at the IDIQ Level.
In their third claim, Plaintiffs argue GSA’s decision not to evaluate price at the IDIQ level
under the Polaris Solicitations violates federal procurement statute 41 U.S.C. § 3306(c). See SHS
MJAR at 34–37; VCH MJAR at 34–37; see also 41 U.S.C. § 3306(c)(1)–(3). To reiterate, 41
U.S.C. § 3306(c)(1)(B) requires agencies to “include cost or price to the Federal Government as
an evaluation factor that must be considered in the evaluation of proposals” for every procurement
“except as provided in paragraph (3).” 41 U.S.C. § 3306(c)(1)(B). In 41 U.S.C. § 3306(c)(3),
Congress carved out a narrow exception to the general rule requiring price evaluations for “certain
indefinite delivery, indefinite quantity multiple-award contracts . . . . for services acquired on an
hourly rate basis” that will “feature individually competed task or delivery orders based on hourly
rates.” 41 U.S.C. § 3306(c)(3). For such a procurement, the procuring agency need only evaluate
“cost or price to the Federal Government . . . in conjunction with the issuance . . . of any task or
delivery order,” rather than at the IDIQ level. 41 U.S.C. § 3306(c)(3)(B). GSA issued Class
Deviation CD-2020-14 on August 14, 2020, to informally amend the language in FAR Subpart
16.5, which addresses IDIQ contracts, to adopt the exception found in Section 3306(c)(3). See
Class Deviation CD-2020-14. Accordingly, on March 18, 2022, GSA approved the Polaris
Solicitations for application of Class Deviation CD-2020-14, affirming GSA’s ability to exclude
52
price as an evaluation factor for the IDIQ contracts issued under the Polaris Solicitations. See
Supplement 2, AR at 2904.
Plaintiffs assert that in designing the Polaris Solicitations, GSA relied on an erroneous
interpretation of 41 U.S.C. § 3306(c)(3) that ignores the statute’s plain and unambiguous language.
SHS MJAR at 35–36; VCH MJAR at 35–36. Plaintiffs argue that Defendant has adopted an overly
broad interpretation for when a contract qualifies as being “based on hourly rates.” See SHS MJAR
at 36–37; VCH MJAR at 36–37. Plaintiffs aver that under the statute’s plain language, a contract
only qualifies as “based on hourly rates” when services are procured and paid using hourly rates,
which is only the case for time-and-materials and labor-hour contracts. See SHS MJAR at 36–37;
VCH MJAR at 36–37. According to Plaintiffs, because the Polaris Solicitations contemplate task
order contract types other than time-and-materials and labor-hour contracts — such as fixed-price,
cost-reimbursement, and incentive contracts — the Polaris Solicitations are ineligible for the
exception housed in Section 3306(c)(3) and must instead evaluate price at the IDIQ level. See
SHS MJAR at 36–37 (criticizing the Solicitations’ inclusion of fixed-price, incentive, and cost
reimbursement contract types); VCH MJAR at 36–37 (same). Further, Plaintiffs emphasize that
any practical justifications offered by Defendant for applying the Section 3306(c)(3) exception to
the Polaris Solicitations cannot override the plain and unambiguous language of Section
3306(c)(3), which clearly requires contracts and task orders “based on hourly rates.” See Pl. Reply
at 23 (“The statute is unambiguous, and an unambiguous statute must be read according to its
terms.”); Oral Arg. Tr. at 40:25–41:3 (The Court: “Do you think the statute is ambiguous?”
Plaintiffs’ Counsel: “We don’t. We think that ‘based on hourly rates’ can only mean one thing.”).
Defendant disagrees with Plaintiffs’ interpretation of 41 U.S.C. § 3306(c)(3) and asserts
GSA properly exercised its discretion in designing the Polaris Solicitations to exclude price as an
53
evaluation factor at the IDIQ level. Cross-MJAR at 51–58. Defendant argues the term “hourly
rates” as used in Section 3306(c)(3) “does not directly correlate with a specific contract type in the
FAR” and is not limited to “labor hour” contracts. Id. at 55. According to Defendant, the Polaris
Solicitations qualify for the Section 3306(c)(3) exception because the Solicitations’ approved task
order types are all based upon “hourly rate build-up[s].” Id. at 54–55. Defendant further argues
GSA reasonably determined task orders for such a large government procurement should not be
“limited to contracts whose only payment structure is based upon an hourly-rate assessment of
service . . . but should instead include the possibility for multiple types of task orders, each of
which would have a component in the payment structure that includes, predominantly, the payment
of hourly-rate costs.” Id. at 52–53 (emphasis in original). “[G]iven the scope of IT-related services
meant to fall under the $60 billion to $100 billion Polaris GWAC,” Defendant argues Plaintiffs set
“forth an interpretation of the hourly-rate requirement . . . that is unreasonable.” Id. at 52.
This Court ultimately agrees with Plaintiffs, though its reasoning and conclusions do not
extend as far as Plaintiffs urge. Defendant adopted an overly broad interpretation of 41 U.S.C.
§ 3306(c)(3) that does not reflect the statute’s plain and unambiguous language. Thus, the Polaris
Solicitations violate federal procurement law because they do not adequately “feature” task orders
“based on hourly rates,” as contemplated under 41 U.S.C. § 3306(c)(3).
A. Defendant Has Adopted an Unreasonable Interpretation of “Based on
Hourly Rates” as Used in 41 U.S.C. § 3306(c)(3).
Central to the parties’ dispute is a difference in opinion over what “task or delivery orders
based on hourly rates” means within the context of 41 U.S.C. § 3306(c)(3). Plaintiffs suggest task
orders “based on hourly rates” are contracts for services that are procured or purchased using
hourly labor rates. See SHS MJAR at 35–36; VCH MJAR at 35–36. Said another way, Plaintiffs
contend performance under the task order must be measured by, and payment remitted in
54
accordance with, the number of hours a contractor spends working on the project to be consistent
with Section 3306(c). Therefore, according to Plaintiffs, the only task order types appropriate for
use under Section 3306(c)(3) are time-and-materials contracts and labor-hour contracts. See SHS
MJAR at 36–37 (criticizing all the Solicitations’ approved contract types except the time-and-
materials and labor-hour contract types); VCH MJAR at 36–37 (same). In contrast, Defendant
takes issue with Plaintiffs’ assertion that “hourly rates” inherently implicates labor hours. See
Cross-MJAR at 55–56 (arguing Plaintiffs have incorrectly “swapp[ed] the statutory phrase ‘hourly
rates’ for the much more precise ‘labor hour’”). Defendant suggests that a task order is “based on
hourly rates” if the task orders are “based upon an hourly rate build up.” 31 Cross-MJAR at 54–55;
AR at 2907–08. Thus, according to Defendant, task orders qualify for the Section 3306(c)(3)
exception so long as “hourly rates for labor costs are . . . embedded in the contractor’s bid amount.”
Cross-MJAR at 57. Defendant asserts that “hourly rates can certainly be embedded within” all
task order contract types referenced in the Polaris Solicitations. Id.31
Defendant does not provide a clear definition for its reference to an “hourly rate build up.” See
generally Cross-MJAR at 51–58; Def. Reply at 23–24. In applying the customary understanding
of the term, this Court presumes that in using the phrase “hourly rate build-up,” Defendant
references a contractor’s “cost build-up,” which is a tool that businesses may use to assist with
pricing out products and services. See, e.g., Charles H. Brandon, Management Accounting 353
(McGraw-Hill 1997) (describing the concept of a cost build-up within the context of car
manufacturing). Businesses prepare cost build-ups to estimate total direct and indirect costs
attributable to a future project. Id. This data informs a business’s decision on which price it should
offer to maintain a reasonable profit margin. Id. Cost build-ups can be unitized, meaning the total
estimated costs attributable to a project are divided by the project’s unit of delivery. See, e.g.,
Adams v. Standard Knitting Mills, Inc., 623 F.2d 422, 433–34 (6th Cir. 1980) (“A build-up of
standard costs involves an estimate of costs per unit of goods . . . .”). Thus, for a services
acquisition where the unit of delivery is based on labor hours, contractors estimate cost based on
an hourly rate. Government agencies may request, as a term included in the solicitation, that
offerors disclose data on cost with their proposals so the agency may perform realism analyses to
“ensure that the final agreed-to price is fair and reasonable.” FAR 15.404-1.
55
As a threshold matter, this Court must determine what deference, if any, this Court should
afford GSA’s interpretation of 41 U.S.C. § 3306(c)(3). This Court need not defer to Defendant’s
interpretation of Section 3306(c)(3) if, after employing all “traditional tools of statutory
construction,” the Court determines “Congress has directly spoken to the precise question at issue.”
Aqua Products, Inc. v. Matal, 872 F.3d 1290, 1302–03 (Fed. Cir. 2017) (quoting Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842, 843 n.9 (1984)). If that is not the case, and
“the statute is silent or ambiguous with respect to the specific issue,” this Court must then
“determine ‘whether the agency's answer is based on a permissible construction of the statute.’”
Shanxi Hairui Trade Co., Ltd. v. United States, 39 F.4th 1357, 1360–61 (Fed. Cir. 2022) (quoting
Chevron, 467 U.S. at 843). Thus, GSA’s interpretation of 41 U.S.C. § 3306(c)(3) may only govern
“in the absence of unambiguous statutory language to the contrary or unreasonable resolution of
language that is ambiguous.” Aqua Products, 872 F.3d at 1302–03 (quoting United States v.
Eurodif S.A., 555 U.S. 305, 316 (2009)). For the reasons discussed further below, this Court finds
that the language of 41 U.S.C. § 3306(c) is unambiguous and directly supports Plaintiffs’
interpretation of the phrase “task or delivery orders based on hourly rates” as found in Section
3306(c).
Once again, this Court begins its interpretive inquiry by reviewing the plain language of
the statute. Boeing, 983 F.3d at 1326 (quoting Am. Airlines, 551 F.3d at 1299). “Based on hourly
rates” is a postpositive adjectival phrase that modifies the terms “task or delivery orders” in 41
U.S.C. § 3306(c)(3). See 41 U.S.C. § 3306(c)(3). A “modifier” is a “word or phrase that makes
specific the meaning of another word or phrase.” Modifier, Merriam-Webster’s Collegiate
Dictionary (11th ed. 2003); see Modifier, Cambridge Dictionary,
https://dictionary.cambridge.org/us/dictionary/english/modifier (last visited Mar. 12, 2023)
56
(defining “modifier” as “a word or phrase that is used with another word or phrase to limit or add
to its meaning”). In other words, postpositive adjectival modifiers contribute to or clarify the
meaning of the nouns which appear immediately before them. Thus, by including the phrase “task
or delivery orders” immediately before the phrase “based on hourly rates,” Congress has
unambiguously expressed its intent to limit the type of task orders eligible for the exception in
Section 3306(c)(3) to only those “based on hourly rates.” See 41 U.S.C. § 3306(c)(3). The phrase
“based on hourly rates” as used in Section 3306(c)(3) includes the transitive verb form of “base,”
which means “to make, form, or serve as a base for[;] . . . to find a base or basis for — usu[ally]
used with on or upon.” Base (vt), Merriam-Webster’s Collegiate Dictionary (11th ed. 2003)
(emphasis in original). In turn, the noun form of “base” is defined as “the fundamental part of
something.” Base (n), Merriam-Webster’s Collegiate Dictionary (11th ed. 2003). Something is
“fundamental” if it is “of central importance.” Fundamental, Merriam-Webster’s Collegiate
Dictionary (11th ed. 2003).
Plaintiffs’ interpretation that “task or delivery orders based on hourly rates” references
time-and-materials and labor-hour contracts comports with the plain meaning of the statutory text
in Section 3306(c). As the above definitions convey, for a task order to be “based on hourly rates,”
hourly rates must be a “fundamental part of,” or “of central importance” to, the task order. Base
(n), Merriam-Webster’s Collegiate Dictionary (11th ed. 2003); Fundamental, Merriam-Webster’s
Collegiate Dictionary (11th ed. 2003). It is not enough, therefore, that hourly rates are merely
“embedded in the contractor’s bid amount,” as the same could be said for many different types of
costs. Cross-MJAR at 57; see, e.g., Lakeshore Eng’g Servs., Inc. v. United States, 748 F.3d 1341,
1343 (Fed. Cir. 2014) (“[T]he mechanism of pricing such jobs involves identification of costs for
those jobs, including labor, equipment, and materials . . . .”). “A time-and-materials contract
57
provides for acquiring supplies or services on the basis of . . . [d]irect labor hours at specified fixed
hourly rates that include wages, overhead, general and administrative expenses, and profit . . . .”
FAR 16.601(b) (emphasis added). “A labor-hour contract is a variation of the time-and-materials
contract, differing only in that materials are not supplied by the contractor.” FAR 16.602. Thus,
hourly rates are a “fundamental part of,” or “of central importance” to, time-and-materials and
labor-hour contracts because the services are procured and paid for using hourly rates. Base (n),
Merriam-Webster’s Collegiate Dictionary (11th ed. 2003); Fundamental, Merriam-Webster’s
Collegiate Dictionary (11th ed. 2003); see FAR 16.601(b); FAR 16.602.
In contrast, Defendant’s interpretation of 41 U.S.C. § 3306(c)(3) does not reflect the
statute’s plain language because it relies on terms absent from the statute and, if adopted, would
render the phrase “based on hourly rates” superfluous. As an initial matter, all parties agree that
the statute at issue is unambiguous in nature. Indeed, during Oral Argument, Defendant’s counsel
confirmed Defendant’s view that the terms of 41 U.S.C. § 3306(c)(3) are unambiguous. See Oral
Arg. Tr. at 76:21–77:4 (The Court: “Do you think 3306(c)(3) is ambiguous?” . . . Defendant’s
Counsel: “I don’t think so in the sense that you don’t see the term ‘labor hour’ in there. What you
see is [‘]hourly rates[’] and you also see. . . [‘]feature individually competed tasks or delivery
orders based on hourly rates.[’]”); see Pl. Reply at 23 (“The statute is unambiguous, and an
unambiguous statute must be read according to its terms.”); Oral Arg. Tr. at 40:25–41:3 (The
Court: “Do you think the statute is ambiguous?” Plaintiffs’ Counsel: “We don’t. We think that
‘based on hourly rates’ can only mean one thing.”). Yet, Defendant suggests that the phrases
“based on hourly rates” and “based on an hourly rate build up” are interchangeable. Cross-MJAR
at 54–55; AR at 2907–08
58
(emphasis added). They are not. The
term “build up,” for example, does not appear anywhere within the statutory language of 41 U.S.C.
§ 3306. See 41 U.S.C. § 3306. Likewise, Defendant does not cite any persuasive authority to
suggest this Court should read the term “build-up” into the statute when Congress has not opted to
expressly include such a term in the statute. 32 Cross-MJAR at 51–58; Def. Reply at 23–24.
Judicial engraftment of a term into a federal statute is outside the constitutional role of this Court.
Perhaps equally problematic is that Defendant’s interpretation of which contract types
qualify as “based on hourly rates” is so broad that it renders the phrase “based on hourly rates”
entirely meaningless. Defendant suggests every contract type referenced in the Polaris
Solicitations can qualify as “based on hourly rates” because each contract type is “based on an
hourly rate build up” and includes labor costs within the bid amount. See Cross-MJAR at 57
(“[H]ourly rates can certainly be embedded within and central to all of these types of contracts.”).
32
Defendant cites two cases to support its argument that “task or delivery orders based on hourly
rates” includes any contract “based on an hourly rate build-up.” See Cross-MJAR at 57 (citing
Lakeshore Eng’g Servs., Inc. v. United States, 748 F.3d 1341, 1346–48 (Fed. Cir. 2014) and
Cleveland Telecoms. Corp. v. United States, 39 Fed. Cl. 649, 653–54 (1997)). However, these
cases merely stand for the unremarkable proposition that contractors working under firm fixed-
price contracts must bear the risk that actual costs, which includes the cost of labor, may exceed
the firm-fixed price agreed to under the contract. See Lakeshore Eng’g Servs., 748 F.3d at 1349(acknowledging “the fundamental decision in this fixed-price contract that the contractor, not the
government, would bear the risk of any inaccuracy in the pre-contract prices used for bidding . . .
and of post-contract changes in market prices for the contractor's inputs”); Cleveland Telecoms.,
39 Fed. Cl. at 653 (“[T]he contractor in a firm fixed-price contract assumes the risk of other
unexpected costs . . . .”). This notion, however, does not mean that hourly rates are a “fundamental
part” of, or “of central importance” to, fixed-price contracts. Base (n), Merriam-Webster’s
Collegiate Dictionary (11th ed. 2003); Fundamental, Merriam-Webster’s Collegiate Dictionary
(11th ed. 2003). While Defendant correctly identifies that labor costs are often contemplated in
pricing firm fixed-price contracts, the same is true for a wide variety of other costs. See, e.g.,
Lakeshore Eng’g Servs., 748 F.3d at 1343 (“[T]he mechanism of pricing such jobs involves
identification of costs for those jobs, including labor, equipment, and materials . . . .”).
59
If this were the case, Congress need not have included the modifier “based on hourly rates” in the
first instance: the phrase would offer no limiting or clarifying principle to the meaning of the noun
it modifies, “task or delivery orders.” In other words, under Defendant’s interpretation, the phrase
“based on hourly rates” would no longer perform any function within the statute and would become
redundant. This Court declines to adopt an interpretation of Section 3306(c)(3) that would render
portions of the statutory text redundant or superfluous. Kungys, 485 U.S. at 778 (acknowledging
the “cardinal rule of statutory interpretation that no provision should be construed to be entirely
redundant”); Shea, 976 F.3d at 1300.
Rendering the phrase “based on hourly rates” meaningless, as Defendant’s interpretation
seeks to do, would broaden the scope of the exception in Section 3306(c)(3) beyond what Congress
had intended. The statute’s plain language unambiguously demonstrates Congress’s intent to
create a narrow exception to the general rule requiring agencies to evaluate price for competitive
procurements. Section 3306(c) opens by describing, “[i]n general,” the evaluation factors “to be
included in each solicitation for competitive proposals.” 41 U.S.C. § 3306(c)(1). Section
3306(c)(1)(B) establishes that, “except as provided in paragraph (3),” agencies must include cost
or price to the government as an evaluation factor in all procurements. 41 U.S.C. § 3306(c)(1)(B)
(emphasis added); see 41 U.S.C. § 3306(c)(1)(C) (noting that “except as provided in paragraph
(3),” agencies must disclose the relative importance of all evaluation factors as compared to cost
or price to the government) (emphasis added). Section 3306(c)(3)’s plain language clearly
demonstrates that the provision provides an “exception[] for certain indefinite delivery, indefinite
quantity multiple-award contracts:” those for “services to be acquired on an hourly rate basis.” 41
U.S.C. § 3306(c)(3) (emphasis added). By correspondingly requiring task orders featured under
60
the IDIQ to be “based on hourly rates,” Congress underscored the limited subset of IDIQ contracts
that would qualify for special treatment under Section 3306(c)(3). Id.Yet, as Plaintiffs emphasize, Defendant’s interpretation ignores these textual cues that
signal the narrow scope of Section 3306(c)(3), permitting the exception to swallow the rule. See
Oral Arg. Tr. at 40:9–12 (“[T]he actual rule that contains an exception would not have any purpose
at that point. So the exception swallows the rule.”). This Court agrees. Taking Defendant’s
proposed interpretation to its logical conclusion would allow agencies to avoid evaluating price
for any IDIQ contract for services, regardless of the manner in which the services are acquired.
See Oral Arg. Tr. at 89:17–23 (Plaintiffs’ Counsel: “[I]f we were to accept the Government’s
position on the statute, . . . what the statute would say is there’s a special rule for IDIQ contracts,
and it differs from the primary rule that you have to consider price. . . . And that’s not how the
statute reads.”). This interpretation and result are untenable.
Further, a study of FAR provisions cited in the Solicitations reveals Defendant’s assertion
that “the term ‘hourly rate’ does not directly correlate with any specific contract type in the FAR”
is simply incorrect. Cross-MJAR at 55; see Oral Arg. Tr. at 81:1–3 (calling “hourly rates” a
“general term”). The Solicitations list five allowable contract types for task orders and state the
FAR provisions associated with each contract type: fixed-price contracts (FAR Subpart 16.2); cost-
reimbursement contracts (FAR Subpart 16.3); incentive contracts (FAR Subpart 16.4); time-and-
materials contracts (FAR 16.601); and labor-hour contracts (FAR 16.602). AR at 1025, 2064,
2554. Of the task order contract types listed in the Solicitations, only the FAR provisions for time-
and-materials and labor-hour contracts, housed in FAR Subpart 16.6, reference the term “hourly
rate.” See FAR 16.601(a) (defining “hourly rate” to mean “the rate(s) prescribed in the contract
for payment for labor that meets the labor category qualifications of a labor category specified in
61
the contract”). FAR Subparts 16.2, 16.3, and 16.4, which detail the requirements for fixed-price,
cost-reimbursement, and incentive contracts, respectively, never once reference “hourly rates.”
See FAR Subpart 16.2; FAR Subpart 16.3; FAR Subpart 16.4. Defendant’s suggestion, therefore,
that Plaintiffs have overemphasized the connection between the term “hourly rate” and labor hours
misstates the realities apparent in the FAR, which the GSA itself administers. 33
Indeed, Defendant’s arguments regarding the inherent differences between “hourly rates”
and labor hours are further belied by GSA’s own statements regarding Class Deviation CD-2020-
14. In Class Deviation CD-2020-14, GSA acknowledged the inherent connection between Section
3306(c)(3)’s requirements and time-and-materials and labor-hour contracts by “amending” the
language in FAR Part 16.601(c) (which applies to both time-and-materials and labor-hour
contracts) to reflect the exception in Section 3306(c)(3). See Class Deviation CD-2020-14 at 8;
FAR 16.601(c); FAR 16.602 (confirming FAR 16.601(c) also applies to labor-hour contracts).
Yet, the Class Deviation does not incorporate any changes to the FAR provisions for fixed-price,
incentive, or cost-reimbursement contracts to accommodate Section 3306(c)(3). See Class
Deviation CD-2020-14 at 5–8. Likewise, in Supplement 2, which approved the application of
Class Deviation CD-2020-14 to the Polaris Solicitations, GSA repeatedly referenced a connection
between labor hours and the language in Class Deviation CD-2020-14 (which, in turn, addresses
the language in Section 3306(c)(3)). Supplement 2, AR at 2904. GSA stated it was approving the
“use of Class Deviation 2020-14 authority for awarding labor rates with no stated price on the line
item or sub-line item at the contract level for [the] ‘Polaris Program’ of [IDIQ] multiple-award
33
See supra Background Section I; Federal Acquisition Regulation (FAR), U.S. General Services
Administration, https://www.gsa.gov/policy-regulations/regulations/federal-acquisitionregulation
-far (last visited Feb. 7, 2023) (“The Department of Defense (DoD), GSA, and the National
Aeronautics and Space Administration (NASA) jointly issue the FAR.”).
62
contracts.” Id. (emphasis added). Additionally, GSA noted that Class Deviation CD-2020-14
“allowed for the use of ‘unpriced labor’ categories at the contract level for certain IDIQ multiple-
award contracts.” Id. (emphasis added). Thus, the Government’s insinuations that Plaintiffs pulled
the connection between “hourly rates” and labor hours out of thin air is incorrect and conflicts with
GSA’s own statements regarding Section 3306(c)(3).
After considering the entire text and structure of 41 U.S.C. § 3306(c), relevant provisions
from the FAR, and GSA’s own prior interpretations of 41 U.S.C. § 3306(c)(3), this Court rejects
Defendant’s broad reading of 41 U.S.C. § 3306(c)(3) as unreasonable and contrary to law. Instead,
this Court holds that “task or delivery orders based on hourly rates” references the time-and-
materials and labor-hour contract types.
B. The Polaris Solicitations Violate 41 U.S.C. § 3306(c)(3) Because They
Do Not Adequately “Feature” Time-and-Materials and Labor-Hour
Task Orders.
Having confirmed the proper meaning of the term “based on hourly rates,” this Court must
now address whether the Polaris Solicitations conform to the requirement that procurements using
the exception available under 41 U.S.C. § 3306(c)(3) must “feature individually competed task or
delivery orders based on hourly rates.” 41 U.S.C. § 3306(c)(3) (emphasis added). Section
3306(c)(3) permits procuring agencies to avoid evaluating price at the IDIQ level only if the IDIQ
contracts issued under the procurement “feature” task orders “based on hourly rates,” meaning
time-and-materials and labor-hour task orders. See 41 U.S.C. § 3306(c)(3); see also supra
Discussion Section III.A. The parties ultimately disagree on the degree to which procuring
agencies must rely on time-and-materials and labor-hour task orders to take advantage of Section
3306(c)(3)’s exception. Defendant argues that even under Section 3306(c)(3), GSA has unfettered
discretion to issue task orders using any of the contract types listed in the Polaris Solicitations.
Cross-MJAR at 52–53, 58. Plaintiffs, however, assert that if GSA wants to apply Section
63
3306(c)(3) to the Polaris Solicitations, it may only issue time-and-materials and labor-hour task
orders. See SHS MJAR at 36–37; VCH MJAR at 36–37 (same). For the reasons discussed below,
this Court concludes that the correct interpretation of “feature” as used in Section 3306(c)(3) lies
between Plaintiffs’ and Defendant’s positions.
As Defendant argues all task orders contemplated under the Polaris Solicitations qualify as
“task or delivery orders based on hourly rates,” Defendant suggests it can exercise unfettered
choice in selecting from among the Solicitations’ stated contract types without running afoul of
Section 3306(c). See AR at 2907
(emphasis added). Defendant contends that adopting such
flexibility in crafting task orders is in the best interest of GSA “given the scope of IT-related
services meant to fall under the $60 billion to $100 billion Polaris GWAC.” Cross-MJAR at 52–
53 (“GSA reasonably determined that the IT work falling under the Polaris GWAC should not be
limited to contracts whose only payment structure is based upon an hourly-rate assessment of
service . . . but should instead include the possibility for multiple types of task orders, each of
which would have a component in the payment structure that includes, predominantly, the payment
of hourly-rate costs.”) (emphasis in original); Oral Arg. Tr. at 79:19–21 (“[F]lexibility to be able
to have costs considered at the task order level, I mean, it’s critical for the Government . . . .”). In
so doing, Defendant emphasizes the “broad authority” GSA’s acquisition team has “in structuring
a procurement solicitation,” citing FAR 1.102(d) for such authority. Cross-MJAR at 58; see FAR
1.102(d).
64
While this Court agrees that agencies have discretion in structuring procurement
solicitations, that discretion is not unfettered. As discussed above, Defendant has adopted an
unreasonable interpretation of 41 U.S.C. § 3306(c)(3) that contradicts the statute’s plain and
unambiguous language. See supra Discussion Section III.A. While Defendant has offered several
arguments for why such a reading of Section 3306(c)(3) serves the interests of the agency, “policy
arguments do not trump the plain language of the statute.” Dominion Res., Inc. v. United States,
641 F.3d 1359, 1363 (Fed. Cir. 2011); see Artuz v. Bennett, 531 U.S. 4, 10 (2000) (“Whatever
merits these and other policy arguments may have, it is not the province of this Court to rewrite
the statute to accommodate them.”). Though it may bring added efficiencies or benefits to the
agency to consider price at the task order level, rather than the IDIQ level, Defendant does not
have free rein to disregard statutory requirements and limitations. While the FAR grants agencies
broad authority to structure solicitations in the best interest of the agency, the FAR cabins such
authority, as it must, within the bounds of the law. See FAR 1.102(d) (“In exercising initiative,
Government members of the Acquisition Team may assume if a specific strategy, practice, policy
or procedure is in the best interests of the Government and is not addressed in the FAR, nor
prohibited by law (statute or case law), Executive order or other regulation, that the strategy,
practice, policy or procedure is a permissible exercise of authority.”) (emphasis added). Thus,
Defendant cannot excuse its unreasonable interpretation of Section 3306(c)(3)’s plain language by
relying on policy justifications, no matter how significant the procurement.
However, Plaintiffs’ argument that the Solicitations may only contemplate time-and-
materials and labor-hour contracts likewise conflicts with the plain language of 41 U.S.C.
§ 3306(c)(3). Section 3306(c)(3) states that to refrain from considering price as an evaluation
factor, the IDIQ contract must “feature individually competed task or delivery orders based on
65
hourly rates.” 41 U.S.C. § 3306(c)(3) (emphasis added). “Feature” is defined as “to give special
prominence to; to have as a characteristic or feature; to play an important part.” Feature, Merriam-
Webster’s Collegiate Dictionary (11th ed. 2003). Based on these definitions, and as Plaintiffs’
counsel acknowledged during Oral Argument, the term “feature” does not describe a contract’s
sole requirements. See Oral Arg. Tr. at 41:19–21 (responding to the Court’s question on the
meaning of “feature,” Plaintiffs’ counsel stated, “I don’t believe it is everything”). Though neither
party addressed the term “feature” in its briefing, during Oral Argument counsel for both parties
interpreted the term “feature” to insinuate a concept of “predominance.” See Oral Arg. Tr. at
41:24–42:1 (Plaintiffs’ Counsel: “I would say that [feature] would just have to be the predominant
– the predominant requirement . . . .”); id. at 78:1–2 (Defendant’s Counsel: “‘[P]redominantly’
would be an example of something featuring something.”). At Oral Argument, Defendant’s
counsel further suggested that “predominant” means a majority. Oral Arg. Tr. at 78:16–17 (“I
would say predominant means at least the majority.”).
This Court considers the parties’ interpretations of “feature” to be reasonable, given the
plain meanings of both “feature” and “predominant.” 34 “Predominant” is defined as “being most
frequent or common,” and “predominantly” is defined as “for the most part; mainly.”
Predominant, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003); Predominantly,
Merriam-Webster’s Collegiate Dictionary (11th ed. 2003). Said another way, something is
“featured” if it is given “special prominence” or predominantly included among a group. By
requiring a contract to “feature” task orders “based on hourly rates,” Congress did not intend that
34
This interpretation is also consistent with the way in which the GSA interpreted Section
3306(c)(3) in Class Deviation CD-2020-14. Class Deviation CD-2020-14 ¶ 5 (“To be eligible for
consideration [for the application of the 41 U.S.C. § 3306(c)(3) exception] by the SPE, the
predominant amount of the acquisition must be for services that will be acquired on an hourly rate
basis.”) (emphasis added).
66
the contract must only rely on task orders “based on hourly rates:” such task orders need only make
up a featured, or predominant, portion of the task orders issued under the contract. 35 Thus, the
statute does not provide agencies unconstrained flexibility to choose among various contract types,
as Defendant argues; however, the statute also does not demand complete inflexibility, as Plaintiffs
suggest.
Going forward, GSA may proceed with its plan to apply 41 U.S.C. § 3306(c)(3) to the
Polaris Solicitations but must do so in the manner Congress intended: by issuing IDIQ contracts
that will feature time-and-materials and labor-hour task orders. Based on what the parties have
informed this Court about the goals and requirements of the Polaris Program, it is apparent that
the Polaris Solicitations as currently drafted do not comply with Section 3306(c)(3). In its request
to apply Section 3306(c)(3) to the Polaris Solicitations, GSA stated that
Supplement 2, AR at 2907–08. Because GSA adopted an overly broad understanding of Section
3306(c)(3)’s scope, GSA stated the Solicitations will include a “full range of order types,”
“includ[ing] labor hour, time-and-materials, cost-reimbursement, and fixed-price type task
orders.” Id. at 2907. Thus, GSA’s statements provide little clarity on the degree to which the
35
Defendant argues that by including the terms “delivery order” and “cost” in 41 U.S.C.
§ 3306(c)(3), Congress intended that agencies could use contract types outside of labor-hour and
time-and-materials contracts, contrary to Plaintiffs’ position. See Cross-MJAR at 56. The
inclusion of these terms in the statute is not inconsistent with Plaintiffs’ interpretation that “based
on hourly rates” references time-and-materials and labor-hour contracts. Both “delivery order”
and “cost” are used throughout FAR Subpart 16.6 to prescribe the requirements for time-and-
materials and labor-hour contracts. See FAR Subpart 16.6. However, to the extent Defendant
argues IDIQ contracts under Section 3306(c)(3) need not solely rely on time-and-materials and
labor-hour contracts, such an argument is consistent with this Court’s understanding of the statute.
See infra Discussion Section III.B.
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agency intends to favor time-and-materials or labor-hour task orders over the use of other contract
types that are not “based on hourly rates.” Indeed, the limited evidence available to this Court
suggests GSA’s intent to do the opposite. The terms of the Polaris Solicitations state a preference
for “Firm-Fixed Price Performance-Based Task Order[s],” which are not properly conceived as
“based on hourly rates.” 36 AR at 1025, 2064, 2554. The Solicitations also allow task orders to
combine various contract types into a single order comprising multiple contract line-item numbers
(CLINs), but the Solicitations do not state how frequently time-and-materials or labor-hour CLINs
will be used, if at all. AR at 1025, 2064, 2554. Thus, if GSA wishes to rely on Section 3306(c)(3)
to avoid evaluating price at the IDIQ level, GSA must amend the Polaris Solicitations’ terms to
clearly feature time-and-materials and labor-hour task orders.
Alternatively, if GSA would prefer to maximize its discretion in selecting the type of task
or delivery orders issued, GSA may choose to forego application of 41 U.S.C. § 3306(c)(3) entirely
and evaluate price at the IDIQ level. Oral Arg. Tr. at 79:2–5 (Court: “Well, [GSA doesn’t]
necessarily have to be locked into [certain contract types] if . . . the solicitation includes cost or
price.” Defendant’s Counsel: “[A]t the GWAC level, right.”). In originally drafting the Polaris
Solicitations, Defendant rejected this approach. Defendant has suggested that such an approach
36
In stating a preference for firm-fixed price performance-based task orders, the Solicitations
reference FAR 37.102(a)(2). See AR at 1025, 2064, 2554. This provision states that “[w]hen
acquiring services . . . agencies must . . . [u]se performance-based acquisition methods to the
maximum extent practicable” and “use the following order of precedence,” listing firm-fixed price
performance-based contracts as most preferred. FAR 37.102(a) (citing Public Law 106-398,
section 821(a), for its authority). In other words, FAR 37.102(a) provides that generally, firm-
fixed price performance-based contracts take precedence in acquisitions for services. However,
“[i]t is a commonplace of statutory construction that the specific governs the general.” Morales v.
Trans World Airlines, Inc., 504 U.S. 374, 384 (1992). Through 41 U.S.C. § 3306(c)(3), Congress
created a narrow exception to the general rules applying to acquisitions for services. 41 U.S.C.
§ 3306(c)(3). Thus, for the narrow body of procurements covered in Section 3306(c)(3), Section
3306(c)(3), and not the general provisions in FAR 37.102, must govern.
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would be unfeasible because it is too difficult for agencies and offerors to predict or ascertain price
when preparing and reviewing proposals at the IDIQ level. See, e.g., Oral Arg. Tr. at 79:7–23
(“[T]he problem with [evaluating price] at the GWAC level is . . . [y]ou don’t know what the
solicitation is going to be. . . . [Y]ou’d have people bidding on contracts that they didn’t even know
what they were going to be.”). However, as Plaintiffs’ counsel noted during Oral Argument, the
government has issued several GWACs over the years which involve an evaluation of price at the
government-wide contract level. 37 See Oral Arg. Tr. at 89:6–12 (“[T]here have been a number of
government-wide acquisition contracts issued over the years . . . . [a]nd in almost all of those, the
Government has actually evaluated pricing.”). There is no evidence before this Court as to why it
would be necessary to treat the Polaris Solicitations any differently. Further, as GSA identified in
its request to apply Class Deviation CD-2020-14 to the Polaris Solicitations,
AR at 2908. Thus,
by choosing to evaluate price at the IDIQ level, GSA could retain flexibility in selecting among
contract types for task orders and renegotiate price at the task order level to minimize procurement
costs for participating agencies.
This Court declines to prescribe the precise methods GSA must use to restructure its Polaris
Solicitations. However, for the procurement to go forward, changes to the current Solicitations
37
As just one example, the Alliant II GWAC for IT services required the agency to evaluate
offerors’ “maximum allowable labor rates” by labor category at the Master Contract level, which
then would serve as rate ceilings for later task orders. See U.S. General Services Administration,
Alliant II Governmentwide Acquisition Contract (GWAC) – Ordering Guide Resource Library:
Conformed Contract, 20–22, https://www.gsa.gov/technology/technology-purchasing-
programs/governmentwide-acquisition-contracts/alliant-2-governmentwide-acquisition-contract-
gwac (last visited March 20, 2023).
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must be made to align the Solicitations with federal procurement law. FAR 1.102(d) grants
agencies discretion to craft procurements in the best interests of the agency, so long as the selected
procurement strategies operate within the bounds of the law. FAR 1.102(d). GSA must exercise
its authority to redraft the Polaris Solicitations and clarify how the procurement intends to remain
faithful to all requirements of 41 U.S.C. § 3306(c), as properly interpreted by this Court, and as
consistent with this Memorandum and Order. Until then, the Polaris Solicitations violate 41 U.S.C.
§ 3306(c)(3).
IV. Prejudice
To prevail in a bid protest, a challenger must also prove it suffered prejudice due to an error
in the procurement process. See Glenn Def. Marine, 720 F.3d at 912; Am. Relocation Connections,
789 F. App’x at 226–27. Because this is a pre-award protest of the Polaris Solicitations, this Court
is required to apply a less stringent prejudice standard than would ordinarily apply in a post-award
bid protest. See Weeks Marine, 575 F.3d at 1361–62. Thus, Plaintiffs need only allege a “non-
trivial competitive injury which can be addressed by judicial relief” to demonstrate prejudice. Id.at 1359–63. Another way of conceiving this standard is to ask whether the protestor has
demonstrated “a greater-than insignificant-chance” that correcting the agency’s errors could lead
to a different result for the protestor in the procurement. Am. Relocation Connections, 789 F.
App’x at 228. Under this less-exacting standard, the burden of demonstrating prejudice has been
satisfied in this case.
Plaintiffs have alleged various forms of prejudice they will suffer should the Polaris
Solicitations proceed as currently drafted. First, Plaintiffs argue they have been prejudiced by
GSA’s decision to exclude Plaintiffs from bidding on the SB Pool Solicitation. SHS MJAR at 20;
VCH MJAR at 20. However, because this Court agrees with GSA’s decision to exclude Plaintiffs
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based on a reasonable interpretation of 13 C.F.R. § 125.9(b)(3)(i), any prejudice Plaintiffs allege
regarding their exclusion from bidding on the SB Pool Solicitation does not stem from an error in
the procurement process. See supra Discussion Section I. Plaintiffs next allege they have
experienced prejudice due to GSA’s violations of 13 C.F.R. §§ 125.8(e), 127.506(f), and
125.18(b)(5). See supra Discussion Section II. Plaintiffs argue that if the Solicitations were
“amended to comply with the regulations, Plaintiffs would be able to submit additional (or better)
experience and obtain a higher score.” SHS MJAR at 30; VCH MAR at 30; see supra Discussion
Section II. Finally, Plaintiffs argue they have been prejudiced by Defendant’s misinterpretation
of 41 U.S.C. § 3306(c)(3) because Plaintiffs anticipate “their labor rates are going to be
substantially lower than other labor rates,” as has “been the case in other contracts [upon which]
they have bid.” Oral Arg. Tr. at 42:18–20. Plaintiffs also assert that, should this Court require the
Polaris Solicitations to consider price at the IDIQ level, such an adjustment “adds a solicitation
requirement that would necessarily change the overall structure of the evaluation” GSA must
perform in awarding the IDIQ contracts. Oral Arg. Tr. at 43:3–5; see supra Discussion Section
III. In both instances, Plaintiffs suggest that correcting GSA’s errors in the Solicitations would
place Plaintiffs in a better competitive position to secure an award under the Polaris Program, a
complaint of prejudice that the Federal Circuit has acknowledged satisfies the “non-trivial
competitive injury” test. Am. Relocation Connections, 789 F. App’x at 227–28.
Importantly, Defendant does not meaningfully contest the existence of prejudice for
purposes of Plaintiffs’ Motions. Defendant mentions the term “prejudice” only once in both its
Cross-MJAR and Reply, noting in conclusory fashion that Plaintiffs “have not been prejudiced;
thus no permanent injunction should be issued.” Def. Reply at 24. In its Cross-MJAR, Defendant
indicated that due to its belief in the strength of its case, it “do[es] not contest plaintiffs’ argument
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on any of the other injunction factors – irreparable injury, the balance of hardships, or the public
interest.” Cross-MJAR at 59. Defendant appears to contradict that statement almost immediately
by alleging “Plaintiffs have not . . . established that they satisfy all of the elements necessary to
obtain a permanent injunction.” Id. at 59. Yet, Defendant does not clarify, substantively or
otherwise, the way in which Plaintiffs have failed to demonstrate prejudice or irreparable harm.
Indeed, when given the opportunity during Oral Argument to elaborate on its views regarding lack
of prejudice, Defendant’s counsel declined to offer the Court further argument on the subject. Oral
Arg. Tr. at 90:21–91:9 (Court: “[I]f I agree with the Plaintiff[s] on at least one of these three
arguments, do you agree that Plaintiff[s] ha[ve] sufficiently shown prejudice? . . . Or would you
contest prejudice?” . . . Defendant’s Counsel: “Your Honor, I would have to consult with the
agency and look at the particulars of their particular prejudice in the context of whatever your
ruling was, so I wouldn’t want to make a blanket representation one way or the other.”).
Given the arguments presented by Plaintiffs and Defendant’s failure to meaningfully
contest the existence of prejudice in this case, this Court deems Plaintiffs to have satisfied the
lesser standard for prejudice applicable to this pre-award bid protest action. See Weeks Marine,
575 F.3d at 1361–62; Am. Relocation Connections, 789 F. App’x at 227–28.
V. Relief
Plaintiffs seek to enjoin GSA from proceeding with the evaluation of proposals and
subsequent award of IDIQ contracts under the current versions of the Polaris Solicitations. SHS
MJAR at 40; VCH MJAR at 40. Under the Tucker Act, this Court has jurisdiction to award “any
relief that the court considers proper, including . . . injunctive relief.” 28 U.S.C. § 1491(b)(2). To
award injunctive relief, a court must consider whether “(1) the plaintiff has succeeded on the
merits, (2) the plaintiff will suffer irreparable harm if the court withholds injunctive relief, (3) the
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balance of hardships to the respective parties favors the grant of injunctive relief, and (4) the public
interest is served by a grant of injunctive relief.” Centech Grp., Inc. v. United States, 554 F.3d
1029, 1037 (Fed. Cir. 2009) (citing PGBA, LLC v. United States, 389 F.3d 1219, 1228–29 (Fed.
Cir. 2004)). Both parties agree that if Plaintiffs were to succeed on the merits, the appropriate
remedy would involve injunctive relief designed to address the specific violations identified in the
current Solicitations. See, e.g., SHS MJAR at 40 (urging the Court to require GSA to either
“amend or cancel and reissue the Solicitations consistent with law and regulation”); VCH MJAR
at 40 (same); Pl. Reply at 25 (“[T]he Court should direct the Agency to publish Solicitations that
comply with applicable law and regulation . . . .”); Cross-MJAR at 59–60 (acknowledging that “if
the Court were to rule against [Defendant] on the merits, an injunction could be an appropriate
remedy,” but urging the Court to “narrowly tailor any injunctive relief so that GSA does not have
to conduct an entirely new procurement or take steps not necessary to address the Court’s
concerns”).
This Court agrees with the parties that an injunction is the appropriate remedy here. As
noted, Plaintiffs have succeeded in proving the merits of their second and third claims. See supra
Discussion Sections II and III. In addressing injunctive relief within the context of patent
infringement, the Federal Circuit has acknowledged that a presumption of irreparable harm can
apply to a party who clearly demonstrates a likelihood of success on the merits. See Reebok Int’l
Ltd. v. J. Baker, Inc., 32 F.3d 1552, 1556 (Fed. Cir. 1994) (“[A] movant who clearly establishes
the first factor receives the benefit of a presumption on the second [factor].”). As noted, Plaintiffs
have demonstrated sufficient harm to warrant injunctive relief within the context of a pre-award
bid protest. See supra Discussion Section IV. In contrast, Defendant has not alleged any harm
that would result from this Court imposing injunctive relief and, on the contrary, acknowledges
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that “an injunction could be an appropriate remedy.” Cross-MJAR at 59. Further, compliance
with relevant procurement law would not burden or harm the agency, as compliance with the law
is a requirement of agency actors. Thus, the balance of hardships in this protest favors the issuance
of injunctive relief. Finally, the public has a strong interest in ensuring government agencies
structure procurements within the bounds of the law. See, e.g., Transatlantic Lines, LLC v. United
States, 68 Fed. Cl. 48, 57 (2005) (“The public has a strong interest in [ensuring] that public officials
treat contractors fairly and generally obey procurement laws and regulations.”) (citations omitted).
For the foregoing reasons, this Court enjoins Defendant from evaluating proposals and
awarding IDIQ contracts under the current versions of the Polaris SB, WOSB, and SDVOSB Pool
Solicitations. Throughout this Memorandum and Order, this Court has identified the aspects of
these Solicitations that require revision by GSA to comply with the law, and similarly, this Court
has highlighted various nonexclusive alternatives GSA may take to eliminate illegalities raised in
this action. Should it wish to proceed with the procurement, GSA may do so provided it amends
the SB, WOSB, and SDVOSB Pool Solicitations in compliance and consistent with this Court’s
Memorandum and Order.
CONCLUSION
For the reasons described above, this Court GRANTS in part and DENIES in part
Plaintiffs’ Motions for Judgment on the Administrative Record (ECF Nos. 33, 34) and GRANTS
in part and DENIES in part Defendant’s Cross-Motion for Judgment on the Administrative
Record (ECF No. 37). Defendant is ENJOINED from evaluating proposals and awarding IDIQ
contracts under the current versions of the SB, WOSB, and SDVOSB Pool Solicitations. To
proceed with this procurement, Defendant must amend the SB, WOSB, and SDVOSB Pool
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Solicitations, and evaluate proposals under those Solicitations, consistent with and in compliance
with this Court’s Memorandum and Order. The Clerk of Court is DIRECTED to enter Judgment
accordingly.
The parties are directed to CONFER and FILE a Notice within seven days, attaching a
proposed public version of this Sealed Memorandum and Order, with any competition-sensitive
or otherwise protected information redacted.
IT IS SO ORDERED.
Eleni M. Roumel
ELENI M. ROUMEL
Judge
Dated: April 21, 2023
Washington, D.C.
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