Oak Grove Technologies, LLC v. United States ( 2021 )

In the United States Court of Federal Claims
No. 21-775C
(Filed Under Seal: August 2, 2021)
(Reissued: August 16, 2021)
)
OAK GROVE TECHNOLOGIES, LLC, )
)
Plaintiff, )
)
v. )
)
THE UNITED STATES,
)
Defendant, )
)
and )
)
F3EA, INC., )
)
Defendant- )
Intervenor. )
)
Craig A. Holman, Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Plaintiff.
With him on the briefs were Thomas A. Pettit and Anna L. Dykema.
Joseph A. Pixley, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, D.C., for Defendant. With him on the briefs were
Brian M. Boynton, Acting Assistant Attorney General, Civil Division, Robert E.
Kirschman, Jr., Director, Douglas K. Mickle, Assistant Director, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, D.C., and
Harry Parent, Contract & Fiscal Law Division, United States Army Legal Services
Agency, Fort Belvoir, VA.
Joshua A. Mullen, Baker Donelson Bearman Caldwell & Berkowitz, PC, Nashville, TN,
for Defendant-Intervenor. With him on the briefs was Adam K. Lasky, Seyfarth Shaw
LLP, Seattle, WA.
OPINION AND ORDER
SOLOMSON, Judge.
The work of our nation’s esteemed special forces is quite understandably
shrouded in secrecy. In contrast, the Federal Acquisition Regulation (“FAR”) requires
our procurement system to be open and transparent. The problem in this case is that
the government treated a procurement to support the special forces – and conducted
this extended bid protest litigation – as if both were clandestine missions. The result is
a procurement record that raises more questions than it answers. Indeed, the
administrative record demonstrates, if anything, that Plaintiff, Oak Grove Technologies,
Inc. (“OGT”), was not treated with the fairness the FAR requires. Moreover, the Court
has serious doubts about the integrity with which the procurement at issue was
conducted.
In particular, in this post-award bid protest, OGT challenges the decision of
Defendant, the United States, acting by and through the Department of the Army
(“Army” or the “Agency”), to award the Special Operations Forces Requirements
Analysis, Prototyping, Training, Operations and Rehearsal IV (“SOF RAPTOR IV”)
contract to Defendant-Intervenor, F3EA, Inc. (“F3EA”). OGT contests that award as
arbitrary, capricious, and otherwise not in accordance with law, including provisions of
the FAR. The parties filed motions for judgment on the administrative record pursuant
to Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”). The
government also moved to dismiss OGT’s complaint for lack of standing pursuant to
RCFC 12(b)(1).
For the reasons explained below, the Court DENIES the government’s motion to
dismiss, GRANTS OGT’s motion for judgment on the administrative record, and
DENIES the government’s and the defendant-intervenor’s respective cross-motions for
judgment on the administrative record. As a result, the Agency must fix this
procurement.∗
∗
On August 2, 2021, the Court filed, under seal, this opinion and order and provided the parties
the opportunity to propose redactions. On August 16, 2021, the parties filed joint proposed
redactions, ECF No. 72, which this Court adopts, in part, and accordingly reissues this public
version of this opinion and order. Redacted information is noted with [* * *] and redacted
names are noted with bracketed initials.
2
I. FACTUAL AND PROCEDURAL BACKGROUND 1
A. The Solicitation
For years, the Army has utilized SOF RAPTOR contract vehicles for procuring
training services for the United States Special Operations Command (“USSOCOM”)
and its component Special Operations Force (“SOF”) commands. AR 1719. SOF
RAPTOR provides USSOCOM with a “flexible contract vehicle capable of executing
complex Full Mission Profile (FMP) exercises and rapid technology insertions” to assist
with “conduct[ing] training, mission planning, preview, and rehearsal using a mix of
live, virtual, and constructive simulation applications.” Id. SOF RAPTOR III, the
predecessor contract to the one at issue here, was awarded to a joint venture, Raptor
Training Services, LLC, of which OGT and F3EA were both members. AR 3380. With
SOF RAPTOR III set to expire, the Army issued, on October 30, 2018, Solicitation No.
W900KK-19-R-0078, as a Request for Proposals (the “Solicitation” or the “RFP”) for SOF
RAPTOR IV. AR 1651, 1719. SOF RAPTOR IV is a 100% service disabled veteran
owned small business (“SDVOSB”) set-aside, providing for a single-award indefinite
delivery indefinite quantity (“IDIQ”) contract, with an order ceiling of $245,000,000. AR
1651-52, 1693. SOF RAPTOR IV contemplates a five-year base period and two, one-year
option periods. AR 1687. Proposals were due December 14, 2018. AR 2576.
The RFP instructed offerors to submit proposals consisting of four volumes
addressing different subjects: (1) capability; (2) past performance; (3) cost/price; and
(4) administrative. AR 1695 (§ L.3.1). The RFP cautioned offerors that “[p]roposals
shall be compliant with the full solicitation” and that failure to comply with solicitation
requirements “may cause the proposal to be evaluated as non-compliant and ineligible
for award.” AR 1693 (§ L.1.7). The RFP emphasized, again, that “[f]ailure of an offeror
to provide all requested proposal information may render the offeror’s proposal as non-
compliant and, as such, the offeror’s proposal will not be evaluated,” subject to the
Procuring Contracting Officer’s (“PCO”) “sole discretion.” AR 1695 (§ L.3.1).
The RFP required a FAR Part 15 “Best Value Subjective Tradeoff Process” with
the caveat that “[a]ward may be made to other than the lowest priced Offeror or other
than the highest technically rated Offeror.” AR 1708 (§ M.2). The RFP informed
offerors that the Army “does not intend to hold discussions, but reserves the right to do
so, at the sole discretion of the PCO.” AR 1708 (§ M.1.5). The RFP provided that the
1This background section constitutes the Court’s findings of fact drawn from the administrative
record. See infra Section III. Citations to the administrative record (ECF No. 23, as amended by
ECF Nos. 49, 56, 59, 65) are denoted as “AR”.
3
capability, past performance, and cost/price volumes would be evaluated in
descending order of importance, and that “[a]ll non-price evaluation factors, when
combined, are significantly more important” than cost/price. AR 1709 (§ M.3.1). While
Section L contained detailed requirements for the administrative volume, the RFP did
not provide Section M evaluation criteria specifically for that volume. See id.
1. Capability Volume
In the capability volume, offerors were required to address three technical
subfactors: program management, crisis response force, and core competencies. AR
1697–1700 (§ L.4.0); see also AR 1709 (§ M.3.1).
Under the program management subfactor, offerors were required to
demonstrate the ability to efficiently address four separate areas: exercise management,
management structure, personnel management, and a program management setup
plan. AR 1697–98 (§ L.4.1). For exercise management, offerors were required to submit
a Realistic Military Training (“RMT”) packet and an After Action Review (“AAR”)
“from the same exercise.” AR 1697 (§ L.4.1.1). The purpose of this requirement was for
the Army to evaluate “the Offeror’s ability to execute complex pre-exercise coordination
and post-exercise activities.” AR 1709 (§ M.4.1.1.1). Within management structure,
offerors were required to “identify all teaming arrangements, partnerships, joint
venture ownership and contingencies, as applicable, within this description.” AR 1697
(§ L.4.1.2). The Army evaluated the “soundness and completeness” of the offeror’s
approach to each of the four areas within the program management subfactor. AR 1709
(§ M.4.1.1).
The crisis response subfactor required offerors to demonstrate their approach to
a sample task order (“STO”) for supporting a Crisis Response Force (“CRF”), AR 1698
(§ L.4.2), referred to as STO-1. AR 1259. In evaluating an offeror’s approach to STO-1,
the Army focused on six equally weighted elements: logical structure, command
structure replication, scenario, intel, logistics plan, and personnel support. AR 1710
(§ M.4.1.2), 3391.
For the core competencies subfactor, offerors were required to submit an
approach for three different STOs: Unconventional Warfare Exercise (“UWEX”),
Special Activities (“SA”), and Next Generation Soldier Tracking System (“NGSTS”), AR
1698–1700 (§§ L.4.2–L.4.3), referred to as STO-2, STO-3, and STO-4, respectively. AR
1259. The Army assessed the offeror’s approach to STO-2 and STO-3 with the same six
equally weighted elements as STO-1, while STO-4 was evaluated for technical,
capability, form, fit, function, and network. AR 1711–12 (§§ M.4.1.2–M.4.1.3), 3396.
4
The Agency evaluated the program management, crisis response, and core
competencies subfactors in descending order of importance. AR 1709 (§ M.3.1). For
each of those technical subfactors, offerors were adjectivally rated as “outstanding,”
“good,” “acceptable,” “marginal,” or “unacceptable.” AR 1715 (§ M.5.1). These ratings
were based on the aggregate assessment of an offeror’s strengths, weaknesses, and
deficiencies. AR 1709, 1716 (§§ M.4.1, M.5.4). A rating of less than “acceptable” (i.e.,
either “marginal” or “unacceptable”) for any of the subfactors resulted in an
“unacceptable” rating for the overall capability evaluation factor. AR 1709 (§ M.3.1).
2. Past Performance Volume
The RFP required that proposals contain relevant past performance information
to demonstrate an offeror’s ability to successfully perform task orders similar to the
planned SOF RAPTOR IV task orders. AR 1700 (§ L.5). Each offeror was permitted to
submit a maximum of five prior contract references on which it was the prime
contractor, as well as an additional four contract references for any subcontractor “that
the bidder deems necessary to demonstrate their team approach to substantiate this
solicitation’s requirements.” AR 1700 (§ L.5) (emphasis added). Offerors were further
required to submit a narrative explanation and a completed past performance
questionnaire (“PPQ”) for each contract reference. AR 1701 (§§ L.5.2–L.5.3). Past
performance was adjectively rated for relevancy (“very relevant,” “relevant,”
“somewhat relevant,” and “not relevant”) and confidence (“substantial confidence,”
“satisfactory confidence,” “neutral confidence,” “limited confidence,” and “no
confidence”). AR 1715–16 (§§ M.5.2–M.5.3).
3. Cost/Price Volume
The RFP required offerors to submit a total evaluated price (“TEP”) and cost
workbooks, including proposed labor rates. AR 1702-04 (§ L.6.0). The Army evaluated
an offeror’s price and cost proposals, respectively, for reasonableness and realism. AR
1713–14 (§ M.4.3). The RFP provided that “[a]s part of this evaluation, the Government
may consider DCMA and DCAA audit information and other information the
Government deems relevant.” 2 AR 1714 (§ M.4.3.4). To determine financial
responsibility, the RFP specified that “DCAA will . . . perform a Financial Capability
Risk Assessment for the Prime offeror . . . [and t]he Prime offeror must be deemed
2“DCMA” refers to the “Defense Contract Management Agency” and “DCAA” refers to the
“Defense Contract Audit Agency.”
5
financially responsible by the Contracting Officer based on the Financial Capability Risk
Assessment.” AR 1714 (§ M.4.3.7) (emphasis added).
4. Administrative Volume
The RFP instructed offerors, with regard to contents of the administrative
volume, to include, among other things, “all executed teaming arrangements,
partnerships, joint venture ownership documentation, associate contractor agreement
and contingencies, as applicable.” AR 1706 (§ L.7.7). The RFP added that “any
previous teaming arrangements . . . that [are] referenced within the proposal shall be
included as attachments in the admin volume as supporting documentation.” Id.
(emphasis added) The RFP acknowledged, however, “that companies are not locked
into any teaming arrangement or subcontractors for future work under SOF RAPTOR
IV.” AR 1706 (§ L.7.7.1).
C. The RFP’s Evaluation Process
The Agency initially screened proposals to ensure that all offerors submitted the
necessary information per the RFP’s requirements. AR 1626. Source selection
evaluation board (“SSEB”) teams were assigned to evaluate and rate proposals. AR
1627. Specifically, [ZH] supported capability evaluations and [MD] evaluated
capability and past performance. AR 1631. Two non-government advisors with
subject-matter expertise, [JL] and [GH], assisted government officials with the capability
volume evaluations. AR 1622, 1631. The individual evaluators or teams forwarded
recommendations to the respective chairperson for each team assigned to an evaluated
factor – i.e., capability, past performance, and cost/price. AR 1627, 1631. As relevant
for this case, [JS] was the capability factor chairperson. AR 1631. The chairpersons then
transmitted their reports to [RM], the overall SSEB Chair. AR 1627, 1631. SSEB Chair
[RM] was responsible for preparing a comprehensive and accurate proposal evaluation
report (“PER”). The PER contained “the adjectival assessments for each factor and
subfactor as well as a Cost/Price report and the supporting rationale.” AR 1627. He
provided the PER to the source selection advisory council (“SSAC”), which, in turn,
provided the source selection authority (“SSA”) with a source selection decision
recommendation. AR 1628. This source selection team structure and the identities of its
members were not made publicly available to any of the offerors. AR 1629. 3
3 Of note, neither the Court nor OGT learned the truth about [RM’s] role in the procurement at
issue until late in this litigation.
6
D. The Contract Awards and GAO Protest History
On December 14, 2018, OGT, a Raleigh, North Carolina-based SDVOSB, timely
submitted its proposal. AR 2576. Nine other SDVOSB offerors, including F3EA and
Lukos-VATC JV III, LLC (“Lukos”), also submitted timely proposals. AR 3375. 4
On January 15, 2020, the Army awarded SOF RAPTOR IV to F3EA. AR 70.
F3EA was evaluated as the offeror with the highest technical rating and lowest price of
the three proposals that received an acceptable (or greater) capability rating. AR 3386–
87. The Agency rated F3EA as “outstanding” in each capability subfactor and assigned
a “very relevant/substantial confidence” rating for past performance. AR 3386. The
Agency rated the capability volumes of the remaining seven offerors’ proposals,
including that of OGT, as either marginal or unacceptable, thus rendering their
proposals unawardable pursuant to Section M.3.1 of the RFP. Id. That same day, the
Agency transmitted a letter to OGT, informing it that the Agency decided to award the
contract to F3EA. AR 2111–12.
On January 28, 2020, OGT filed a protest with the Government Accountability
Office (“GAO”), raising numerous challenges to the Agency’s evaluation of OGT’s
capability and past performance volumes and to the Agency’s decision to award a
contract to F3EA. AR 6. Among other grounds, OGT alleged that F3EA improperly
benefited from unequal access to information and biased ground rules, thus resulting in
a prohibited organizational conflict of interest (“OCI”). 5 AR 6–347. In support of those
serious allegations, OGT submitted two emails that it received from former F3EA
employees. AR 2312, 2386–87. In those emails, the former F3EA employees alleged not
only that they overheard conversations between F3EA’s [* * *], and a government
point of contact named “[RM]” regarding “the intent for F3EA to get the work” but also
that [RM] steered the contract award to F3EA by deliberately selecting three STOs for
the capability factor evaluation (STO-1, STO-2, and STO-3) that were very similar to
certain task orders that F3EA had performed under the predecessor SOF RAPTOR III
4In many of the administrative record documents, the various offerors are referred to by a
single letter. See, e.g., AR 3350. For example, OGT is “Offeror B,” F3EA is “Offeror E,” and
Lukos is “ Offeror H.”
5In January 2020, OGT also filed a size protest with the Small Business Administration (“SBA”),
contesting F3EA’s classification as small under the applicable size determination for SOF
RAPTOR IV, which protest the SBA Area Office denied in a decision that the SBA Office of
Hearings and Appeals ultimately affirmed. Oak Grove Tech., LLC, SBA No. SIZ-6051, 2020 WL
2107083 (Apr. 20, 2020).
7
contract. AR 25–26 (internal quotation marks omitted). 6 The former F3EA employees
also alleged that F3EA had a role in actually drafting the STOs. Id. On January 29, 2020,
based on the same allegations contained in OGT’s GAO protest, OGT sent a notice of
possible Procurement Integrity Act (“PIA”) violations to the cognizant PCO. AR 854–
55.
On January 31, 2020, the Army issued a notice of corrective action, representing
to GAO, in relevant part, as follows:
The Army will reevaluate proposals consistent with the
solicitation, determine the impact of the reevaluations on the
source selection decision, and document its reevaluation and
new best value determination. . . . Additionally, the Army
has initiated an investigation in accordance with FAR 9.505 to
determine the validity of the organizational conflict of interest
(OCI) allegations in Oak Grove’s protest. The Army will also
investigate the allegations set forth in Oak Grove’s January 29,
2020 Notice of Possible Procurement Integrity Act Violations
in accordance with FAR 3.104. The Army will take
appropriate action as necessary based on the results of the
information gathered during the investigation.
AR 348 (emphasis added). GAO dismissed OGT’s protest, finding that the Army’s
planned corrective action rendered the protest academic. 7 AR 350.
On February 18, 2020, the PCO authored a nine-page memorandum
summarizing findings from his investigation of OGT’s PIA and OCI allegations. AR
2037–46. As part of that investigation, government procurement officials and support
contractors – [GH], [JL], [ZH], [MD] – provided written statements, in which they all
categorically denied both having heard SSEB Chair [RM’s] discussing influencing the
procurement for the benefit of F3EA and having asked them to inflate F3EA’s proposal
ratings. AR 2041–44. The PCO further conducted in-person interviews with [JS] and
[JL]. AR 2042–43. SSEB Chair [RM] also submitted a written statement to the PCO, in
which [RM] denied providing any advantage or assistance to F3EA. AR 2044–45.
6 It does not appear from the record that OGT knew of [RM’s] role in this procurement at the
time OGT made the allegations against him. See supra n.3; see also infra Section V.C.
7Four other unsuccessful offerors separately filed protests with GAO, as well. AR 4070.
Following the Army’s notification of its intent to take corrective action, GAO similarly
dismissed these protests as academic. Id.
8
Moreover, [RM] asserted “that any task order that F3EA would have had a role in
editing, would have been in the capacity of performance on the [SOF RAPTOR] III
efforts[,]” as the incumbent on that contract. Id. Based on those written statements and
interviews, the PCO concluded that OGT’s allegations were not credible and, therefore,
that no OCI or PIA violations could be substantiated. AR 2045. The PCO further
memorialized these findings in yet another summary memorandum, dated May 1, 2020,
in which the PCO critiqued the former F3EA employees’ allegations because they “did
not provide a timeline of when the statements and discussions occurred, the topics of
the discussion and who were other parties that were present.” AR 2569–72.
Notably, however, the PCO did not interview the two former F3EA employees
who made the allegations, nor did the PCO interview F3EA’s [* * *] who, like [RM],
was implicated in the allegations. See AR 2037–46, 2569–72. The record does not
contain any indication that either the PCO or any government official interviewed [RM]
regarding the allegations of improper conduct. And, to be clear, neither memorandum
notes or otherwise reveals the significant role that [RM] played in the procurement.
On August 31, 2020, following the Agency’s investigation and other putative
corrective action, the Army once again awarded the SOF RAPTOR IV contract to F3EA,
having concluded that F3EA remained the offeror with the highest technical rating with
the lowest price. AR 3343–44. 8 That same day, the Army informed OGT, via a
debriefing letter, that “the [PIA] allegations were investigated and found to have no
basis to support the allegations.” AR 3884–86. On September 9, 2020, OGT filed a
second protest with GAO, raising the same issues as the first protest. AR 383–932. On
December 18, 2020, GAO denied the protest. AR 4068–75. GAO concluded that because
the Agency reasonably assessed OGT’s proposal as technically unacceptable (and thus
unawardable), OGT lacked standing to challenge any remaining issues with the
evaluation process. AR 4071–72, 4074.
E. Procedural History
On January 21, 2021, OGT filed its complaint against the United States in this
Court. ECF No. 1 (“Compl.”). That same day, F3EA filed an unopposed motion to
intervene, which this Court granted. ECF No. 9, Minute Order (Jan. 21, 2021). In the
complaint, OGT alleges that the Agency: (1) inadequately investigated whether [RM]
steered the procurement award to F3EA (Count I); (2) awarded F3EA the contract
8 After conducting the corrective action, the Army found that only two proposals were actually
awardable, F3EA and Lukos, as the third offeror that was originally found to be awardable was
later determined to be unacceptable for award. AR 3350.
9
despite the existence of biased ground rule or unequal information OCIs (Count II); (3)
violated FAR 1.602-2 and FAR 3.101-1 (Count III); (4) abused its discretion in failing to
engage in discussions or clarifications with OGT (Count IV); (5) arbitrarily assessed
weaknesses to various sections of OGT’s proposal (Counts V–VIII); (6) misevaluated
Lukos’ proposal (Count IX); and (7) awarded F3EA the contract despite various critical
deficiencies with its proposal (Counts X–XII). Compl. at ¶¶ 8–27 (summarizing OGT’s
complaint counts).
On January 28, 2021, the Court held a status conference with the parties to
discuss, among other things, whether OGT intended to seek preliminary injunctive
relief. ECF No. 18. On February 1, 2021, the parties filed a joint status report, informing
the Court that the Army had “certain exigent special forces training needs” for six task
orders that would be awarded to F3EA under SOF RAPTOR IV between February 11,
2021 and May 3, 2021 and that OGT would not seek preliminary injunctive relief to
enjoin their performance. ECF No. 19 (“February JSR”) at 1–2. The parties further
agreed that “no Party shall argue that the awarded task orders prevent the Court from
providing complete declaratory and permanent injunctive relief” and that the Court
“should make any relief ruling without regard to any cost or disruption from
terminating, recompeting, or rewarding the challenged contract.” Id. at 2–3.
On February 10, 2021, the government filed the administrative record in this
matter. ECF No. 23. On February 26, 2021, OGT filed its motion for judgment on the
administrative record. ECF No. 27 (“Pl. MJAR”). On March 26, 2021, the government
filed its motion to dismiss for lack of standing pursuant to RCFC 12(b)(1) or, in the
alternative, a cross-motion for judgment on the administrative record. ECF No. 30
(“Def. MJAR”). That same day, F3EA also filed its cross-motion for judgment on the
administrative record. ECF No. 31 (“Intv. MJAR”). The parties filed timely response
briefs. ECF Nos. 35 (“Pl. Resp.”), 38 (“Def. Reply”), 39 (“Intv. Reply”). On April 5,
2021, OGT filed a motion for leave to amend its complaint to add facts (supporting a
challenge to Lukos’ technical acceptability) that OGT asserted it learned only following
the government’s filing of the administrative record. ECF No. 34. While the
government did not oppose the motion, F3EA did. ECF No. 40. OGT filed a reply brief
in support of its motion for leave to file an amended complaint. ECF No. 42. 9 On May
12, 2021, the Court held oral argument. ECF No. 41.
9 Although the Court is not convinced that an amended complaint is required to support OGT’s
arguments regarding Lukos’ proposal, the Court hereby GRANTS OGT’s motion for leave to
file an amended complaint, ECF No. 34, to the extent that OGT’s argument would require
additional supporting factual allegations. Particularly in light of the fact that the government
10
Following oral argument, the Court directed the government, on May 20, 2021
(ECF No. 43), May 28, 2021 (ECF No. 53), and, again, on June 28, 2021 (ECF No. 63), to
file certain documents that, erroneously, had been omitted from the administrative
record as originally filed. The government filed corrections to the administrative record
on May 25, 2021 (ECF Nos. 47–49), June 1, 2021 (ECF Nos. 55–56), June 4, 2021 (ECF
Nos. 59–60), and June 29, 2021 (ECF Nos. 64–66).
On May 25, 2021, OGT requested the Court order temporary injunctive relief
regarding three task orders that the Army intended to award to F3EA between May 31,
2021 and June 15, 2021. ECF No. 46. On May 27, 2021, the government filed its
response in opposition to the issuance of preliminary injunctive relief “due to the
exigencies of the Government’s issuing task orders for special forces training under the
challenged contract[.]” ECF No. 52. The next day, the Court directed the parties to
meet-and-confer to attempt to resolve the preliminary injunctive relief issue. ECF No.
53. On June 2, 2021, the parties filed a joint status report, informing the Court that OGT
would withdraw its request and that “the Court should treat these three additional task
orders (relative to relief) as the parties’ [sic] agreed the Court should handle task orders
1–6[.]” ECF No. 58 (“June JSR”) at 1–2. The parties further agreed “that should the
Court issue permanent injunctive relief . . . none of the parties wish to see an abrupt
cessation of services under the task orders that have been issued and are being
performed . . . [and t]herefore, the parties will agree to cooperate to ensure a reasonable
period of transition on any pending task orders that are being performed[.]” Id. at 2.
The government represented to the Court that the Army “does not intend to issue any
further task orders prior to July 31, 2021 (at the earliest).” Id.
II. JURISDICTION AND STANDING
The Tucker Act, as amended by the Administrative Dispute Resolution Act of
1996, Pub. L. No. 104-320, 110 Stat. 3870, provides this Court with “jurisdiction to
render judgment on an action by an interested party objecting to a solicitation by a
Federal agency for bids or proposals for a proposed contract or to a proposed award or
the award of a contract or any alleged violation of statute or regulation in connection
with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). “An
interested party is an actual or prospective bidder whose direct economic interest
would be affected by the award of the contract.” Digitalis Educ. Sols., Inc. v. United
States, 664 F.3d 1380, 1384 (Fed. Cir. 2012). To satisfy the “direct economic interest”
does not oppose OGT’s motion and the fact that F3EA had an opportunity to address all of
OGT’s arguments, the Court concludes that the amended complaint does not prejudice F3EA in
any way and, thus, there is no basis to deny OGT’s motion.
11
requirement in a post-award bid protest, a plaintiff “must show that there was a
‘substantial chance’ it would have received the contract award but for the alleged error
in the procurement process.” Info. Tech. & Applications Corp. v. United States, 316 F.3d
1312, 1319 (Fed. Cir. 2003) (quoting Alfa Laval Separation, Inc. v. United States, 175 F.3d
1365, 1367 (Fed. Cir. 1999)).
OGT was an actual offeror, as it submitted a timely proposal prior to the
December 14, 2018 deadline for proposals. AR 2576. OGT alleges that but for the
Agency’s various errors in conducting the procurement at issue, OGT would have had a
substantial chance of receiving an award and that, conversely, both F3EA, the actual
awardee, and Lukos, another offeror, were ineligible for a contract award. Pl. MJAR at
14–18. Specifically, OGT argues, among other things, that the Agency credited F3EA’s
proposal with the capabilities and past performance of a significant team member
notwithstanding that F3EA failed to include the required teaming agreement in its
proposal and, with regard to Lukos, that the Agency evaluators found that Lukos’
cost/price volume of its proposal contained a “significant performance risk” which the
Agency appeared to have ignored. Id. at 15–17.
The government argues, however, that should the Court conclude that the
Agency reasonably found OGT’s proposal unacceptable, OGT lacks standing to
challenge any other alleged errors in the procurement. Def. MJAR at 31. Moreover, the
government and F3EA contend OGT does not have a substantial chance of receiving
this contract award because despite all of the allegations regarding the Agency’s
evaluation of OGT’s and F3EA’s proposals, Lukos was the next-in-line, awardable
offeror. Def. MJAR at 31–33; Intv. MJAR at 37–40.
As “standing is a threshold jurisdictional issue[,]” Myers Investigative & Sec.
Servs., Inc. v. United States, 275 F.3d 1366, 1369–70 (Fed. Cir. 2002), the Court must
address the government’s motion to dismiss for lack of standing before reaching the
merits of this case. See Media Techs. Licensing, LLC v. Upper Deck Co., 334 F.3d 1366, 1370
(Fed. Cir. 2003) (“Because standing is jurisdictional, lack of standing precludes a ruling
on the merits.”).
Even when an agency has determined that an offeror is technically unacceptable,
that alone does not vitiate an offeror’s standing to challenge the results of a
procurement pursuant to 28 U.S.C. § 1491(b). Indeed, “[s]uch a position is contrary to
established case law and has been rejected both in the Federal Circuit and this Court.”
Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. 16, 37–38 (2010) (citing Rex Serv. Corp. v.
United States, 448 F.3d 1305, 1307–08 (Fed. Cir. 2006); Impresa Construzioni Geom.
Domenico Garufi v. United States, 238 F.3d 1324, 1334 (Fed. Cir. 2001); Dyonyx, L.P. v.
12
United States, 83 Fed. Cl. 460, 460 (2008)), aff’d, 649 F.3d 1320 (Fed. Cir. 2011). The
correct rule is that “[a] bidder has an economic interest and therefore standing to
challenge a contract award where, ‘if the [offeror’s] bid protest were allowed because of
an arbitrary and capricious responsibility determination by the contracting officer, the
government would be obligated to rebid the contract, and [the bidder] could compete
for the contract once again.” Eskridge & Assoc. v. United States, 955 F.3d 1339, 1345-46
(Fed. Cir. 2020) (quoting Impresa, 238 F.3d at 1334); see Tinton Falls Lodging Realty, LLC v.
United States, 800 F.3d 1353, 1358–59 (Fed. Cir. 2015) (holding that unacceptable offeror
has standing “if, as a result of a successful bid protest, the government would be
obligated to rebid the contract and the protester could compete for the contract during
the reopened bid”). Furthermore, in cases where there are more than two offerors, a
protestor will have standing to allege “that it has a substantial chance of being awarded
the contract if its allegations regarding the proposals of offerors who may be next in line
for award are potentially meritorious.” Bluewater Mgmt. Grp., LLC v. United States, 150
Fed. Cl. 588, 608 (2020).
Here, even putting aside OGT’s allegations of error in the Agency’s evaluation of
its own proposal, OGT has alleged sufficient facts that, if true, demonstrate the Agency
acted in an arbitrary and capricious manner, and otherwise abused its discretion, not
only in evaluating F3EA’s and Lukos’ proposals but also in terms of the investigation
that the Agency agreed to undertake as part of its corrective action following OGT’s
initial GAO protest. Such allegations, if proven, would arguably require the Agency to
resolicit the SOF RAPTOR IV contract or engage in discussions because there would be
no remaining awardable offeror. To the extent that the government disputes OGT’s
factual allegations regarding the flaws in Lukos’ proposal, see Def. MJAR at 32–33, that
is a merits question, not a standing issue. That is because “before reaching the merits of
the parties’ dispute, the court conducts only a ‘limited review’ of the plaintiff[’s]
allegations and the administrative record for the ‘minimum requisite evidence
necessary for plaintiff to demonstrate prejudice and therefore standing.’” Magnum
Opus Techs., Inc. v. United States, 94 Fed. Cl. 512, 530 n.12 (2010) (quoting Night Vision
Corp. v. United States, 68 Fed. Cl. 368, 392 & n.23 (2005)). Again, “[a]t this point in the
[standing] inquiry, we assume the well-pled allegations of error to be true.” Digitalis
Educ. Sols., Inc. v. United States, 97 Fed. Cl. 89, 94 (2011), aff’d, 664 F.3d 1380 (Fed. Cir.
2012). The Court concludes that OGT has pled sufficient facts supporting allegations of
procurement errors to establish standing and, therefore, to have its claims decided on
the merits.
13
III. STANDARD OF REVIEW
Judgment on the administrative record pursuant to RCFC 52.1, “is properly
understood as intending to provide for an expedited trial on the record.” Bannum, Inc.
v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005). The rule requires the Court “to
make factual findings from the record evidence as if it were conducting a trial on the
record.” Id. at 1354. The Court asks whether, given all the disputed and undisputed
facts, a party has met its burden of proof based on the record evidence. Id. at 1356–57.
Generally, in an action brought pursuant to § 1491(b) of the Tucker Act, the
Court reviews “the agency’s actions according to the standards set forth in the
Administrative Procedure Act, 5 U.S.C. § 706.” See Nat’l Gov't Servs., Inc. v. United
States, 923 F.3d 977, 981 (Fed. Cir. 2019). Pursuant to that APA standard, the Court asks,
“whether the agency’s action was arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Id. (citing 5 U.S.C. § 706(2)). In other words, the
Court must “determine whether ‘(1) the procurement official’s decision lacked a
rational basis; or (2) the procurement procedure involved a violation of regulation or
procedure.’” Id. (quoting Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed.
Cir. 2009)).
“When a challenge is brought on the first ground, the test is whether the
contracting agency provided a coherent and reasonable explanation of its exercise of
discretion, and the disappointed bidder bears a heavy burden of showing that the
award decision had no rational basis.” Banknote Corp. of Am., Inc. v. United States, 365
F.3d 1345, 1351 (Fed. Cir. 2004) (internal citation marks omitted). “When a challenge is
brought on the second ground, the disappointed bidder must show a clear and
prejudicial violation of applicable statutes or regulations.” Impresa, 238 F.3d at 1333(internal quotation marks omitted). To establish prejudice in a post-award challenge, a
protester must further demonstrate that “‘but for the alleged error, there was a
substantial chance that it would receive an award–that it was within the zone of active
consideration.’” Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1326 (Fed. Cir.
2011) (brackets omitted) (quoting Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.
Cir. 1996)).
IV. THE GOVERNMENT VIOLATED THIS COURT’S RULES GOVERNING
THE FILING OF THE ADMINISTRATIVE RECORD
Before proceeding to the merits of this case, the Court is compelled to address the
government’s mishandling of the administrative record in this case. In a procurement-
related action pursuant to 28 U.S.C. § 1491(b), this Court is required to base its APA
14
review of agency action on “‘the full administrative record that was before the [agency
decision maker] at the time he made his decision.’” East West, Inc. v. United States, 100
Fed. Cl. 53, 56 (2011) (alteration in East West) (quoting Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402, 420 (1971)); see Vanguard Recovery Assistance v. United States, 99 Fed.
Cl. 81, 92 (2011) (“[T]o perform an effective review . . . , the court must have a record
containing the information upon which the agency relied when it made its decision as
well as any documentation revealing the agency’s decision-making process.”); cf. Ctr. for
Native Ecosystems v. Salazar, 711 F. Supp. 2d 1267, 1276 (D. Co. 2010) (“[t]he proper
touchstone remains the decision makers’ actual consideration”). “Implementing that
idea, this Court’s Rules [in RCFC Appendix C, ¶¶ 21–24] provide detailed guidance on
what documents typically should be included in the administrative record.” Naval Sys.,
Inc. v. United States, 153 Fed. Cl. 166, 178 (2021).
However, “[t]he court’s review function is undermined when an agency
assembles a record that consists solely of materials that insulate portions of its decision
from scrutiny or that it deems relevant to specific allegations raised by a protester.”
Joint Venture of Comint Sys. Corp. v. United States, 100 Fed. Cl. 159, 168–69 (2011).
Moreover, “[a]llowing a protest to be decided upon an AR which does not reflect what
actually transpired would perpetuate error and impede and frustrate effective judicial
review.” AshBritt, Inc. v. United States, 87 Fed. Cl. 344, 366 (2009). Simply put, “an
agency does not possess the discretion to make these records whatever it says they are.”
East West, 100 Fed. Cl. at 56.
In the instant case, the government’s handling of the administrative record is
unacceptable. Two of the central issues in this bid protest are: (1) whether SSEB Chair
[RM] acted improperly during the course of this procurement, to the detriment of the
integrity of the process, generally, and to OGT, in particular; and (2) whether Lukos was
eligible for a contract award, a fact which the government argued – both before GAO
and, again, before this Court – should deprive OGT of standing. Compl. at ¶ 23; Def.
MJAR at 31–33. As detailed infra, notwithstanding the centrality of those two questions
to this case, the government omitted several critical documents from its initial and
subsequent administrative record filings, which documents directly and unequivocally
undermine the government’s position.
For the sake of completeness of this decision, the Court reviews the record issues,
both procedurally and substantively, in detail.
On May 20, 2021, following oral argument, the Court ordered the government to
complete the administrative record with specified documents and to provide an
explanation for why those documents were not included in the Agency’s initial
15
administrative record filing. ECF No. 43. The Court identified those omitted
documents because the initial administrative record referenced but did not include
them. In response, the government filed a corrected administrative record, for the first
time including several key documents, including a DCMA financial capability report
regarding Lukos’ cost/price volume, the administrative volume of Lukos’ proposal,
and various proposal evaluation reports and source selection documents from the
Agency’s pre-corrective action evaluations and decision-making. ECF No. 47.
The government repeatedly explained, in its response to the Court’s May 20,
2021 order, that the government believed that a number of these documents were “not
considered especially relevant or necessary to the instant protest.” Id. at 2 (emphasis
added); see id. at 3, 4, 6. The government doubled down on the legal grounds for its
proffered rationale, explaining:
As an initial matter, it is our understanding that not all
documents are required to be included in the administrative
record and certain documents regarding a superseded
evaluation were not considered relevant. See Rules for the
Court of Federal Claims (RCFC) Appendix C. In addition,
Appendix C ¶ 22 lists items that “may . . ., as appropriate” be
among the “core documents relevant to a protest.” It is,
therefore, not binding, nor is it exhaustive. See Allied Tech.
Grp., Inc. v. United States, 92 Fed. Cl. 226, 230–31 (2010)
(“Appendix C, ¶ 22(u) employs the words ‘may’ and ‘as
appropriate,’ leaving it to the Court’s reasoned discretion to
determine when materials should be added to the
administrative record.”). With these considerations in mind,
we exercised discretion in assembling the AR. To the extent
that we omitted certain documents that should have been
included, which [sic] apologize.
ECF No. 47 at 1-2.
The government’s failures did not end there. On May 28, 2021, following a status
conference, during which OGT’s counsel noted that other important administrative
record documents – F3EA’s Appendix B to its capability volume and the entire
cost/price volume of its proposal – inexplicably appeared to be missing from the
administrative record, the Court directed the government, yet again, to ensure that the
filed administrative record was complete. ECF No. 53. Specifically, the Court ordered
that “counsel of record for the government shall consult with the cognizant contracting
16
officer to determine whether any other documents relating to the agency’s decision-
making at issue (e.g., [F3EA]’s proposal, [Lukos’] proposal, and/or [RM’s] role in the
procurement at any stage) were omitted from the administrative record.” Id. at 2.
In response, the government filed yet another corrected version of the
administrative record, this time producing the remainder of F3EA’s proposal and,
without any explanation for its original omission, a letter terminating [RM’s] role as SSEB
Chair. ECF No. 56. That letter, dated April 30, 2020, 10 memorialized as follows:
This termination is the result of repeated inconsistencies
within multiple revisions of the Proposal Evaluation Report
(PER), including significant findings being omitted that were
documented in the consensus roll up. These omissions
resulted in incomplete evaluation review by the Source
Selection Advisory Council and (SSAC) and SSA and
incomplete evaluation information being provided to the
Offerors during the debriefing. As a result of multiple
Government Accountability Office protests, the Procuring
Contracting Officer initiated corrective actions to review and
amend the PER to ensure that the solicitation criteria was
followed. The corrective action was to add the omitted
information into the PER, review the findings for compliance
and determine if the ratings assessed were still relevant
considering the additional information. Each subsequent
version of the PER has had significant areas of disagreement
between the documented findings and the solicitation
requirements or areas where the proposal citations do not
support the rating that was assessed. The fact that these areas
seem to persist with every new version of the PER has led to
the conclusion that appointment of a new SSEB Chairperson
is necessary.
AR 5388.
On June 4, 2021, the government produced yet additional administrative records
documents that were missing from OGT’s cost/price and administrative volumes,
relevant evaluation reports, and pre- and post-corrective action communications
10The Agency issued this letter, terminating [RM] from his role as SSEB Chair, during corrective
action, before the Agency’s second award decision. See AR 5388.
17
between OGT and the Agency. ECF Nos. 59–60. Finally, on June 28, 2021, the Court
discovered that a certain source selection document that the government purported to
have filed was still not in the corrected administrative record; the Court ordered the
government to file this document, ECF No. 63, which the government promptly filed
the next day. ECF Nos. 64–66.
The government’s conduct regarding the administrative record is simply
unacceptable and there are a several glaring flaws with its proffered explanations for its
conduct.
First, although the government repeatedly attempted to excuse its failure to
include in the administrative record particular documents, utilizing a “not especially
relevant” standard, counsel for the government was unable to provide any authority to
support that standard. Indeed, he immediately abandoned the contention when
questioned during a status conference. ECF No. 62 (“May 28, 2021 Status Conference
Tr.”) at 38:18–39:3 (“I’m not suggesting there’s an especially relevant standard, but --
and if I’ve expressed that awkwardly, I apologize.”). The government, however,
provided no other explanation for the critical document omissions.
Second, in compiling the administrative record, the government does not possess
a unilateral veto over administrative record documents based on a self-serving
conclusion that they are not relevant to the procurement decision under review. Again,
the “whole record” consists of “all the material that was developed and considered by
the agency in making its decision.” Software Eng’g Servs., Corp. v. United States, 85 Fed.
Cl. 547, 552–53 (2009) (internal quotation marks omitted). Although the government
relied upon Appendix C, ¶ 22, of this Court’s Rules to justify withholding particular
documents from the administrative record, see ECF No. 47, that paragraph of this
Court’s Rules provides no such support. Paragraph 22 of Appendix C simply does not
address the scope and contours of an administrative record generally, but rather only
identifies a non-exhaustive list “of relevant core documents” in order to “expedite final
resolution of the case.” RCFC App. C, ¶ 22 (emphasis added). The next paragraph,
¶ 23 of Appendix C, makes perfectly clear that the “core documents” are only intended
to capture a subset of the complete administrative record; indeed, that latter paragraph
provides that “the court expects the United States to produce the core documents and
the remainder of the administrative record as promptly as circumstances will permit.”
Id. ¶ 23 (emphasis added); see also id. ¶ 24 (“Any additional documents within the
administrative record must be produced at such time as . . . ordered by the court.”).
Third, while the government attempts to excuse its failure to include certain
documents in the administrative record on the grounds that they were not germane to
18
the Agency’s latest contract award decision (i.e., following corrective action), see ECF
No. 47, that explanation falls particularly flat. For starters, the Agency included in the
originally-filed administrative record documents related to the first contract award
decision that formed the predicate for the GAO protest and the Agency’s subsequent
corrective action, 11 thus demonstrating that not even the government believes its own
test for what should be included (or excluded) from the record.
Moreover, with respect to the DCMA report, in particular, the government’s
explanation is clearly erroneous, if not frivolous. That document is decisively probative
regarding Lukos’ eligibility for a contract award. See infra Section V.A.2. Given the
government’s reliance throughout this dispute – both before GAO and this Court – on
Lukos’ status as a potential awardee, why any information related to that offeror was
omitted from the administrative record is inexplicable. Indeed, counsel for the
government readily conceded the distinction between documents related to Lukos and
those related to other offerors not at issue here. 12 The same is true for the inexplicable
omission from the initial record of the letter terminating [RM] from his position as SSEB
Chair – particularly given his central role in OGT’s allegations of improper conduct. See
infra Section V.C.
Fourth, although counsel for the government later contended that the Agency’s
document omissions were merely “an oversight,” see May 28, 2021 Status Conference
Tr. at 56:15–17, that facile explanation does little to mitigate the harm that the
government has caused in this case by excluding specific documents that should have
been included as part of the record from the outset. As this is a record review case,
discovery typically is not available; indeed, the government understandably and
routinely opposes discovery in bid protest cases, not to mention requests to supplement
the record. Naval Sys., 153 Fed. Cl. at 178. But there is a necessary corollary to those
rules: plaintiffs must be entitled to rely upon the government’s certification that the
filed administrative record is complete. See ECF No. 23-1 at 1. Plaintiffs should not
have to police the government’s filing as if routine discovery rules apply. Indeed, it is
not as if in these cases a plaintiff can even engage in discovery to learn what documents
exist because, to a great extent, a plaintiff in a § 1491(b) action is at the mercy of the
government to file a complete, certified record. That the government later readily offers
11 See, e.g., AR 3372–3425.
12May 28, 2021 Status Conference Tr. at 44:10–19 (“THE COURT: Well, let me ask you this, Mr.
Pixley. Are there any other documents that were not considered especially relevant that were
excluded? MR. PIXLEY: I think there are a whole bunch. For example, there were seven other
offerors, Offeror A, Offeror J, okay, we didn’t include the other IDIQ participants. THE
COURT: But Offeror H has been at issue here the whole time. MR. PIXLEY: Yes, yes.”).
19
to complete the record when challenged by a plaintiff (or the Court) does not cure the
harm caused by an incomplete record. See May 28, 2021 Status Conference Tr. at 61:10–
14. The government’s waiting for a plaintiff (or the Court) to complain about the
contents of an administrative record is not an approach that this Court will condone. 13
As much as the Court would like to assume good faith, the government admits
that it made sentient choices regarding the contents of the administrative record, all of
which appear to have favored the Agency. Such apparent gamesmanship wastes
judicial resources and undermines trust in both the procurement and disputes
processes. 14 Accordingly, the government is ordered to show cause why Defendant
should not be sanctioned for wasting the Court’s (and Plaintiff’s) time and resources on
these administrative record deficiencies.
V. DISCUSSION
OGT contends that the Agency erred in assessing OGT’s proposal with
numerous deficiencies, arbitrarily determined that F3EA and Lukos submitted
awardable proposals, abused its discretion in failing to engage in discussions, and
conducted an inadequate investigation of improper conduct by [RM]. Compl. at ¶¶ 8–
27; Pl. MJAR at 2–6. Although OGT’s complaint raises twelve claims, OGT correctly
notes that “the Court need not find that any aspect of the Agency’s technical evaluation
of [OGT’s] proposal was improper to grant judgment in [OGT’s] favor.” OGT Resp. at
26. Nor does the Court need to resolve every issue that OGT raises regarding F3EA’s
and Lukos’ proposals. This is because the Court concludes that OGT has sufficiently
13 While there is a distinction between the GAO’s record production requirements and the
Court’s Rules governing the filing of the administrative record, the Court is concerned that the
Agency, having failed to disclose relevant facts and documents during the GAO protest,
attempted to protect itself by continuing its obfuscation during this case. See K. Sacilotto &
J. Frazee, Is a Record by Any Other Name Still a Record?, at *1 (American Bar Association 2021
Public Contract Law Virtual Federal Procurement Institute Mar. 12, 2021), available at
https://www.americanbar.org/events-cle/ecd/ondemand/409718248/ (explaining that in
contrast to GAO protest proceedings, “the COFC rules expressly requires production of the
administrative record, without the need for the protester to explain the relevancy of those
documents to the protest arguments raised” and that “the ‘relevant’ documents produced [at
the GAO] can be a fraction of the actual record of the procurement before the agency evaluators
and source selection authority” (emphasis in original)).
14Sacilotto & Frazee, supra n.13, at *2 (“As a result of these differences in record contents, some
protests that GAO has denied are later sustained at the Court, and the difference in decision . . .
can be tied to the more fulsome record produced at the Court versus the GAO.”).
20
demonstrated that the Agency acted in an arbitrary and capricious manner in several
respects, thus providing a basis for ruling for OGT on the merits.
Pursuant to the APA arbitrary and capricious standard of review, “[w]here, as
here, a bid protester challenges the procurement official’s decision as lacking a rational
basis, we must determine whether the contracting agency provided a coherent and
reasonable explanation of its exercise of discretion[.]” AgustaWestland N. Am., Inc. v.
United States, 880 F.3d 1326, 1332 (Fed. Cir. 2018) (internal quotation marks omitted); see
Atar S.R.L. v. United States, 730 F.3d 1320, 1325 (Fed. Cir. 2013) (“Courts look for a
reasoned analysis or explanation for an agency’s decision as a way to determine
whether a particular decision is arbitrary, capricious, or an abuse of discretion.”
(internal quotation marks and alteration omitted)). “This standard requires that the
agency not only have reached a sound decision, but have articulated the reasons for that
decision.” In re Sang Su Lee, 277 F.3d 1338, 1342 (Fed. Cir. 2002). Although agencies
“are entitled to exercise discretion upon a broad range of issues confronting them in the
procurement process[,]” Impresa, 238 F.3d at 1332–33 (internal quotation marks
omitted), a court should not “defer to the agency’s conclusory or unsupported
suppositions.” McDonnell Douglas Corp. v. U.S. Dept. of the Air Force, 375 F.3d 1182, 1187
(D.C. Cir. 2004). In that regard, this Court will sustain a bid protest where the protester
demonstrates that the agency‘s decision “‘entirely failed to consider an important aspect
of the problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.’” Ala. Aircraft Indus., Inc.-Birmingham v. United
States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (alteration in Ala. Aircraft omitted) (quoting
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
A. The Agency Acted Arbitrarily In Finding That F3EA And Lukos
Submitted Compliant, Awardable Proposals
1. The Agency Failed To Consider F3EA’s Noncompliance With
The RFP’s “Teaming Arrangement” Provision
OGT asserts that F3EA’s proposal was deficient because it did not submit its
teaming agreement with [* * *], Compl. at ¶¶ 283–88, and because “[t]he Agency
failed to enforce its mandatory teaming requirement when it evaluated F3EA’s
proposal.” Pl. MJAR at 42–43. The Court agrees.
21
FAR 9.601 defines a “contractor team arrangement” as either:
(1) Two or more companies form a partnership or joint
venture to act as a potential prime contractor; or
(2) A potential prime contractor agrees with one or more
other companies to have them act as its subcontractors
under a specified Government contract or acquisition
program.
The second type of agreement, commonly referred to as a prime/subcontractor
“teaming agreement,” has been described “as a fundamental business strategy” in
which “Government contractors . . . combin[e] their performance capabilities with
those of other contractors, thereby enhancing the prospects for being awarded
Government contracts.” Robert H. Koehler, Teaming Agreements: The Proverbial “Wolf in
Sheep’s Clothing,” 14-6 Briefing Papers 1, 1 (May 2014). Indeed, “[a] benefit can be that
the past performance and experience of an intended subcontractor can bolster a prime
contractor’s competitive position and address gaps in the prime contractor’s
performance capabilities.” Michael W. Mutek, Close Enough for Government Work: The
Economic Utility of Teaming Agreements and the Issue of Enforceability, 49 Pub. Cont. L.J.
423, 426 (2020) (citation omitted).
Here, the RFP required that “[p]roposals shall be compliant with the full
solicitation” and that “offerors are required to comply with all requirements stated
herein.” AR 1693 (§ L.1.7). With respect to the administrative volume, the RFP
instructed that “[o]fferors shall include in full all executed teaming arrangements . . . as
applicable.” AR 1706 (§ L.7.7). The Federal Circuit has emphasized that “a proposal
that fails to conform to the material terms and conditions of the solicitation should be
considered unacceptable and a contract award based on such an unacceptable proposal
violates the procurement statutes and regulations.” Allied Tech. Grp., 649 F.3d at 1329(internal quotation marks omitted). “So long as the requirement serves a substantive
purpose, it is material.” ManTech Advanced Sys. Int’l, Inc. v. United States, 141 Fed. Cl.
493, 507 (2019). While the RFP further provided that an incomplete proposal “may” be
disqualified “at the sole discretion of the PCO[,]” AR 1695 (§ L.3.1), such discretion
must be read in light of the mandate in Section L.1.7 and must be exercised reasonably.
Contrary to the government’s and F3EA’s view, the requirement for an offeror to
provide an executed teaming arrangement is not merely an inconsequential formality,
but rather serves a substantive and material purpose – ensuring that prime contractors
cannot simply claim the capability and experience of another contractor for the purpose
22
of making the offeror’s proposal more competitive, absent some concrete evidence that
the described team will actually perform an awarded contract. While the RFP noted
“that companies are not locked into any teaming arrangement or subcontractors for
future work under SOF RAPTOR IV[,]” AR 1706 (§ L.7.7.1), that caveat is a truism
insofar as the government cannot compel a proposed team member or subcontractor,
with which the government is not in privity, to perform a subcontract. But that fact
does not undermine the substantive purpose of the requirement to provide teaming
agreements in order for an offeror to claim and obtain credit for another company’s
capabilities or experience. That the Solicitation confirmed an awardee will have the
flexibility to change its manner of performance over time does not substantiate F3EA’s
argument “that the Agency did not consider teaming arrangements with subcontractors
to be of substantial import.” Intv. MJAR at 66. The Court finds F3EA’s argument
unpersuasive.
F3EA further contends that the RFP’s instruction for an offeror to submit an
executed teaming agreement was not a material requirement, per se, because that
instruction governs only the contents of the administrative volume which is not
evaluated; that is, the requirement is only mentioned in the Section L proposal
instructions, but not in the Section M evaluation criteria. Intv. MJAR at 67–68.
Alternatively, F3EA argues that “OGT’s argument must also fail because nothing in the
Capability factor proposal instructions or evaluation criteria required a teaming
agreement to be submitted in order to receive credit for contributions of a proposed
subcontractor.” Id. at 68. These attempts to undermine the importance of the RFP’s
requirement for an offeror to provide such agreements as part of its proposal are
unavailing.
First, the Court finds that a requirement to provide teaming agreements as part
of a proposal serves to substantiate that the offeror has a bona fide arrangement with
another contractor to bring together their capabilities and experience, and,
concomitantly, precludes an offeror from claiming the experience of another company
with which it has no relationship or no intent to cooperate to perform a particular
contract. A teaming agreement thus plays a similar role to commitment letters for
proposed key personnel (often required in other procurements), regarding which GAO
has held that “[g]enerally, a requirement for letters of commitment from key personnel
constitutes a material solicitation requirement.” IT Objects, LLC, B-418012, 2020 CPD
¶ 2, 2020 WL 104156, *5 (Jan. 2, 2020); see Wyle Lab’y, Inc., B-412964.3, 2016 CPD ¶ 144,
2016 WL 3124842, *7 (May 27, 2016) (same). Even when an RFP’s evaluation criteria in
Section M does not explicitly address teaming agreements, an RFP’s instruction to
provide such agreements serves an important gatekeeping function to prevent an
23
offeror from obtaining unjustifiable credit. See Sentrillion Corp. v. United States, 114 Fed.
Cl. 557, 568 (2014) (holding that the RFP’s requirement for binding teaming agreements
“clearly had a rational relationship to the agency’s needs” because “[a]n agency
rationally may ask to know who will be providing services under a contract”). This, of
course, is why the RFP includes such an instruction in the first place. The alternative is
to read the RFP instruction entirely out of the solicitation as serving no purpose
whatsoever. There is no rule that a Section L instruction cannot serve a substantive
purpose; on the contrary, this Court has upheld an agency’s decision to reject an
offeror’s proposal solely for the failure to redact sections of its proposal pursuant to the
instructions in the RFP. See Strategic Bus. Sols., Inc. v. United States, 129 Fed. Cl. 621, 628–
30 (2016), aff’d, 711 F. App’x 651 (Fed. Cir. 2018). In Strategic Business Solutions, this
Court held that “the redaction requirement . . . is not a formalistic one . . . [i]t served a
substantive purpose–promoting the unbiased evaluation of all offerors’ proposals.” Id.
at 629. The Court here finds the same to be true of the RFP’s teaming agreement
requirement. 15
Second, after the RFP required offerors to submit “all executed teaming
arrangements,” the RFP added that “any previous teaming arrangements . . . that [are]
referenced within the proposal shall be included as attachments in the admin volume as
supporting documentation.” AR 1706 (§ L.7.7) (emphasis added). The RFP thus makes
abundantly clear that there is a direct connection between other sections of an offeror’s
proposal – i.e., the capability and past performance volumes – and the need for the
Agency to review the teaming arrangements to substantiate the claimed references in
those other volumes. 16
The Court acknowledges that this is not a case where the RFP mandated the
automatic exclusion of an offeror’s proposal for failure to adhere to this instruction;
rather, the RFP cautioned offerors that “[f]ailure of an offeror to provide all requested
15To the extent GAO has held that a Section L proposal instruction cannot be material unless
there is precise, corresponding Section M evaluation criteria, see Intv. MJAR at 67-68, this Court
disagrees.
16Although the words “supporting documentation” are located in the sentence addressing
“previous teaming arrangements,” the Court, as it must, reads the Solicitation as a whole, and
finds that this rationale obviously applies to the requirement for submitting “executed teaming
arrangements” in support of an offeror’s proposal for completing future work on the SOF
RAPTOR IV. In light of the Court’s conclusion that the requirement to substantiate teaming
arrangements is a material term of the solicitation, the Court need not reach the issue of
whether a Section L instruction regarding an unevaluated volume of a proposal may serve as a
basis for disqualifying a proposal. See Intv. MJAR at 67-68 (arguing that lack of Section M
evaluation criteria obviated the need for F3EA to comply with Section L.7.7).
24
proposal information may render the offeror’s proposal as non-compliant and, as such,
the offeror’s proposal will not be evaluated, at the sole discretion of the PCO.” AR 1695
(§ L.3.1). Notwithstanding that the RFP vested the consequences of non-compliance in
the discretion of the PCO, that does not end this Court’s inquiry. Consistent with the
APA standard of review, the administrative record must support that the Agency
identified this flaw in the proposal, exercised its discretion to not find the proposal non-
compliant (or to waive the flaw), and “present[ed] a full and reasoned explanation of its
decision.” In re Sang Su Lee, 277 F.3d at 1342. An agency’s failure to consider the issue
or to exercise discretion absent any supporting rationale is, by definition, an abuse of
discretion.
F3EA did not submit an executed teaming arrangement with [* * *] in its
administrative volume, see AR 3598–3608, but [* * *] is referenced throughout F3EA’s
proposal as a proposed team member. 17 In F3EA’s capability volume, for example,
F3EA extensively highlighted the advantages to its proposal that [* * *] would
provide, as follows:
[* * *]
[* * *]
[* * *]
AR 3069.
17 The government bizarrely argues that the RFP’s requirement that offerors provide teaming
agreements “as applicable” means only that the offeror must provide the teaming arrangement
if the parties “actually had a written teaming agreement . . . which is not a given between
contractors.” Def. MJAR at 55 (internal quotation marks omitted). This argument borders on
the absurd because “as applicable” most certainly refers to a situation where the offeror claims
the experience and capabilities of a planned team member or subcontractor, as in the instant
case. According to the government’s argument, the Agency believed it might be important to
review the terms of a teaming agreement if it existed but otherwise did not care if the claimed
relationship was purely fictional. The argument virtually refutes itself.
25
This series of paragraphs appears again in F3EA’s administrative volume. AR
3602. But, more critically, F3EA fully relied on [* * *] as its technical solution in
response to [* * *] in the capability volume’s core competencies subsection. AR 3137–
42 (“F3EA proposes [* * *], which will be provided by our teammate, [* * *].” (emphasis
added)). Throughout F3EA’s narrative, it identified that [* * *] possessed this
technology, not F3EA. 18 The Agency assigned three strengths for F3EA’s technical
approach for the NGSTS requirement, concluding that it “[e]xceeds specified
performance requirements.” AR 3400. This in no small part contributed to F3EA’s
rating of “outstanding” for its core competencies evaluation subfactor. See AR 3353
(“[* * *]”).
Furthermore, F3EA claimed past performance credit for [* * *] contracts for
which [* * *] served as the prime contractor. AR 3249–50. The Agency did not
evaluate [* * *] of those submissions because it was a classified contract but the
Agency did rate the other [* * *] submissions – finding one “very relevant” and the
other “relevant” to SOF, generally, but not relevant to the STOs, in particular. AR 3358.
The Agency rated F3EA with a “very relevant/substantial confidence” past
performance rating because “[t]he Prime Contractor, as well as the Offeror’s one major
[proposed] subcontractor, has a strong organic capability to successfully perform [* * *]
with a high degree of confidence. The contributions of the [* * *] subcontractor bring
a legitimate [* * *] capability to the team with an existing, proven solution very similar
to the [* * *] requirements in [* * *].” AR 3358.
In sum, F3EA’s proposed collaboration with [* * *] contributed to the Agency’s
favorable rating of F3EA’s proposal under an RFP where capability and past
performance were the most important factors and a sub-acceptable rating on any
element of the capability volume would have led to the proposal being rejected. AR
1709. Nowhere in the administrative record does it appear that the Agency identified
the issue of F3EA’s failure to comply with the RFP’s teaming arrangement instruction;
nor did the Agency provide a reason for letting F3EA claim credit for [* * *]’s
capabilities and experience without requiring supporting documentation consistent
with that instruction. Having determined that the Agency failed to exercise its
discretion to waive non-compliance with the teaming arrangement provision, the Court
cannot conclude that the Agency acted reasonably under the facts of this case. 19
18 For example, “[* * *], [* * *], and [* * *].” AR 3140, 3141.
19The government argues, in the alternative, that F3EA complied with the teaming agreement
instruction by including “documentation of its contractual relationship with [* * *], in F3EA’s
Volume II past performance submission.” Def. MJAR at 55. The Court rejects the government’s
26
The prejudice is clear. F3EA’s proposal failed to comply with a material Section
L instruction that had profound implications for its evaluation under Section M.
Whether that means that F3EA’s proposal should have been disqualified per se for
submitting a noncompliant proposal, or whether that means its evaluation was fatally
flawed because F3EA could not obtain any type of credit for its proposed team member
and putative subcontractor – either way – the Court cannot conclude that F3EA’s
proposal was awardable. To the extent the Agency reached a different conclusion, its
decision is not justified on this record because the Agency never considered F3EA’s
compliance failures.
2. The Agency Failed To Comply With The RFP’s Requirement
To Evaluate The Financial Responsibility Of Lukos’ Proposal
In OGT’s original complaint, OGT asserted that Lukos is not an awardable
offeror – and thus cannot serve to deprive OGT of standing – because “the Agency
failed to perform a meaningful price reasonableness evaluation.” Compl. at ¶¶ 486–91.
Following the government’s filing of the administrative record, in which additional
facts concerning Lukos’ proposal came to light, OGT amended its complaint to include,
among other things, allegations that the Agency, in finding Lukos potentially
awardable, failed to account for “numerous inconsistencies” in Lukos’ cost/price
volume. ECF No. 34-1 at ¶¶ 487–507; Pl. MJAR at 16–18. This Court finds that the
administrative record conclusively demonstrates that Lukos, in fact, was ineligible for a
contract award.
The RFP required offerors to submit a cost/price volume that would be
evaluated, respectively, for reasonableness and realism. AR 1713–14 (§ M.4.3). The RFP
provided that “[a]s part of this evaluation, the Government may consider DCMA and
DCAA audit information and other information the Government deems relevant.” AR
1714 (§ M.4.3.4). Before concluding that an offeror was financial responsible, however,
the RFP explained that the Agency would request “DCAA . . . to perform a Financial
Capability Risk Assessment for the Prime offeror . . . [and t]he Prime offeror must be
deemed financially responsible by the Contracting Officer based on the Financial
Capability Risk Assessment.” AR 1714 (§ M.4.3.7) (emphasis added).
argument that merely submitting past performance contracts is the same as providing an
executed teaming agreement. And, in any event, the Court reviewed the [* * *] past
performance contract references that F3EA submitted to the Agency but could not find how
those contracts demonstrate any relationship between F3EA and [* * *]. See AR 3249–50.
27
In the Source Selection Decision Document (August 28, 2020), the SSA noted, as
follows:
Price Analysis - It should be noted that [Lukos] [* * *].
AR 3368. Furthermore, the Consolidated Prenegotiation Objective Memorandum
(“POM”)/Price Negotiation Memorandum (“PNM”) noted that while DCAA issued a
Preaward Accounting System report for all offerors and determined that “[a]ll
accounting systems were found to be acceptable for award[,]” a separate financial
capability assessment was conducted, which determined that:
a. Offerors [* * *] were found to be financially capable of
performing the contract, with moderate risk on a scale of
Low-Moderate-High.
b. Offerors [* * *], and [Lukos], were found to be NOT financially
capable of performing the contract, with high risk on a scale of Low-
Moderate-High.
AR 3423 (emphasis added).
The government originally contended that “[t]he evaluators did not ignore
anything.” Def. MJAR at 33 (internal quotation marks omitted). Rather, “[t]he
evaluators considered both the technical team’s evaluation of the capabilities factor and
subfactors . . . as well as the cost evaluation . . . taking note of the cost evaluators’
assessment of performance risk – – and stated their findings in the report.” Id.; see also
Def. Reply at 15–16. Even with just these initial findings, the Court struggles to
understand how the Agency evaluators properly considered these adverse financial
evaluations and still deemed Lukos awardable.
But, as the saying goes: wait, there’s more. Although not included in the
government’s original administrative record filing, the Court, in its May 20, 2021 order,
see ECF No. 43, directed the government to file the underlying audit reports referenced
in the POM/PNM. The government complied with this order. ECF No. 47. In
reviewing these documents, the Court was surprised to discover that DCMA in fact had
explicitly recommended “No Award” for Lukos. AR 4994 (emphasis added). DCMA
explained its recommendation:
As a result of our analysis, we do not find [Lukos] to be financially
capable of supporting . . . [the Solicitation]. . . . [* * *] Our
recommendation for NO AWARD was made after analysis of all
28
information available to us for this formal Pre-award Financial
Capability Survey.
AR 4996 (emphasis added). This document clearly demonstrates that Lukos was found
to be not financial capable and thus was not awardable consistent with the RFP’s
requirements. See AR 1714 (§ M.4.3.7). Nowhere does the record demonstrate that the
Agency even considered this DCMA finding (assuming for the sake of argument that
the contacting officer were permitted to depart from it). In sum, the government’s
contention that Lukos is an offeror capable of being awarded the contract – thus
depriving OGT of standing – violates the RFP or, at a minimum, “runs counter to the
evidence before the agency” and constitutes the very height of arbitrary and capricious
decision-making. Ala. Aircraft Indus., 586 F.3d at 1375.
Following the exceedingly late disclosure of this document, the government
changed its tune, arguing that the “no award” finding does not really mean “no
award.” ECF No. 47. Specifically, in the government’s response to the Court’s May 20,
2020 order, the government provided an extensive post hoc rationalization from the
cognizant PCO:
Since this was an unpopulated Joint Venture, Lukos VATC
provided a guarantor who would support the offeror
financially if necessary. That guarantor was found to not have
sufficient resources to finance a contract of this size, which is
not surprising.
If Lukos VATC would have been the awardee for this
procurement, the Government would have several paths to
award to Lukos VATC in the face of the no-award
determination identified in the report.
Id. at 4–5 (discussing at length how the Agency might have been able to award a contract
to Lukos despite the DCMA’s finding).
Again, even assuming the RFP’s terms provided the contracting officer with
some discretion to depart from the Financial Capability Risk Assessment when
grounded in reasonable decision making, the Court declines to credit the PCO’s naked
assertions made in the heat of litigation particularly because “‘[a]ny post hoc rationales
an agency provides for its decision are not to be considered.’” CRAssociates, Inc. v.
United States, 95 Fed. Cl. 357, 376 (2010) (quoting Gen. Elec. Co. v. Dept. of Air Force, 648 F.
Supp. 2d 95, 100 (D.D.C. 2009)). Rather, “’[t]he grounds upon which an administrative
order must be judged are those upon which the record discloses that its actions are
29
based.’” Applied Bus. Mgmt. Sols., Inc. LLC v. United States, 117 Fed. Cl. 589, 604 (2014)
(quoting Changzhou Wujin Fine Chem. Factory Co., Ltd. v. United States, 701 F.3d 1367,
1377 (Fed. Cir. 2012)). “Post hoc rationales should not form the basis of agency decision-
making.” Savantage Financial Servs., Inc. v. United States, 150 Fed. Cl. 307, 327 (2020).
Contrary to the government’s characterization, this statement from the cognizant PCO
was not an explanation regarding “why this document was not earlier provided[,]” ECF
No. 47 at 4–6 – which is what the Court ordered the government to address – but rather
was nothing more than a post hoc argument regarding why the Court should disregard
the DCMA’s finding.
This Court will not permit the government to withhold highly relevant
documents and then – when those documents ultimately come to light and the Agency
is confronted with them – allow the Agency to submit unsupported assertions in what
is essentially an unsworn declaration from the PCO included in the government’s brief
in order to cure a defect not only in the government’s procurement but in its handling
of the administrative record. 20 The Court rejects as preposterous the government’s
entire approach – both substantive and procedural – to this issue.
Given that both F3EA’s and Lukos’ respective proposals – and their evaluations –
suffer from serious compliance defects under the RFP’s terms, OGT has succeeded on
the merits of its complaint.
B. The Government Should Have Conducted Discussions
OGT asserts that the Agency’s decision not to engage in discussions violated
DFARS 215.306 or was otherwise arbitrary and capricious. Compl. at 68–70. The Court
agrees.
FAR 15.306(d) delineates the rules for “[e]xchanges with offerors after
establishment of the competitive range.” In that regard, “[t]he hallmark of such
exchanges, called ‘discussions,’ is that they ‘are undertaken with the intent of allowing
the offeror to revise its proposal.’” CliniComp Int'l, Inc. v. United States, 117 Fed. Cl. 722,
744 (2014) (quoting FAR 15.306(d)); see also Info. Tech., 316 F.3d at 1322 (noting that FAR
15.306 “contemplates discussions as occurring in the context of negotiations” during
which “bidders have the opportunity to revise their proposals” (citing FAR 15.306(d))).
20To be clear, the government did not move to supplement the administrative record with any
declaration or affidavit from the PCO.
30
The Federal Circuit has explained that “[u]nder [FAR] section 15.306(d)(3),
whether discussions should be conducted lies within the discretion of the contracting
officer.” JWK Int’l Corp. v. United States, 279 F.3d 985, 988 (Fed. Cir. 2002) (citing FAR
15.306(d)(3)). In this case, the Solicitation included a provision noting that the Agency
reserved the discretion to award a contract without engaging in discussions. AR 1708.
While “[t]he general rule is that once offerors are warned that the agency intends to
award without discussions, absent special circumstances, the contracting officer has the
discretion to award without discussions[,]” Chenega Healthcare Servs., LLC v. United
States, 138 Fed. Cl. 644, 653 (2018), that does not mean that such discretion is plenary.
Day & Zimmermann Servs., a Div. of Day & Zimmermann, Inc. v. United States, 38 Fed. Cl.
591, 604 (1997)). 21 Indeed, wherever a regulation provides the government with
discretion to take (or not to take) an action, such discretion must be exercised
reasonably and not in arbitrary and capricious manner. Essex Electro Eng’rs, Inc. v.
United States, 458 F. App’x 903 (Fed. Cir. 2011) (per curiam) (“When a solicitation states
that formal discussions are not required, there may be some circumstances in which the
government’s failure to hold discussions would be arbitrary and capricious.”).
In this case, the picture is further complicated by DFARS 215.306, which provides
that “[f]or acquisitions with an estimated value of $100 million or more, contracting
officers should conduct discussions.” DFARS 215.306(c)(1) (emphasis added). Without
resorting to case law, the DFARS provision’s plain language suggests that an agency
must justify not engaging in discussions where the provision applies. FAR 2.101
(defining “should” as “an expected course of action or policy that is to be followed
unless inappropriate for a particular circumstance”). Put differently, the DFARS
provision’s plain language would seem to create a presumption in favor of an agency’s
conducting discussions. The Federal Circuit’s decision in Dell Federal Systems, L.P. v.
United States removes any doubt that DFARS 215.306 generally requires an Agency to
engage in discussions. Dell Fed. Sys., L.P. v. United States, 906 F.3d 982 (Fed. Cir. 2018).
21In contrast, GAO appears to treat the government’s discretion as unreviewable. In Booz Allen
Hamilton, Inc., the protester argued that the Navy abused its discretion by failing to hold
discussions with the offerors. Booz Allen Hamilton, Inc., B-405993, 2012 CPD ¶ 30, 2012 WL
310875 (Jan. 19, 2012). The solicitation at issue, however, expressly advised that the agency
contemplated making award without discussions. Id. at *2. GAO concluded that in such
circumstances “[a]n agency’s decision not to initiate discussions is a matter we generally will
not review.” Id. at *11 (citing cases and concluding that “[t]o the extent our decision in The
Jonathan Corp.; Metro Mach. Corp., B–251698.3, B–251698.4, May 17, 1993, 93–2 CPD ¶ 174 at 15,
establishes a different rule, it will no longer be followed.”).
31
In Dell Federal Systems, unsuccessful offerors filed GAO protests, arguing,
amongst other things, “that the Army should have engaged in discussions with offerors
. . . as required by [DFARS] 215.306(c)[.]” 906 F.3d at 987-88 (footnoted omitted). As
part of the agency’s corrective action to resolve the protests, the agency decided it
would reopen the procurement to conduct discussions, request new final proposals,
and then issue a new award decision. The cognizant contracting officer explained “that
because the procurement was valued in excess of $100 million, the Army was likely
required to [but did not] conduct discussions with offerors pursuant to DFARS
215.306(c)(1).” Id. at 988. Two of the initial awardees filed suit in this Court, seeking to
enjoin the corrective action. Id. at 989. On appeal, the Federal Circuit upheld the
agency’s corrective action, holding that, pursuant to DFARS 215.306, “discussions
normally are to take place in these types of acquisitions.” Id. at 995-96. Thus, the
Federal Circuit “determine[d] that the corrective action of conducting discussions is
rationally related to the undisputed procurement defect of originally failing to conduct pre-
award discussions. . . .” Id. (emphasis added). 22 Indeed, the government plainly
confessed the procurement error before the Federal Circuit, arguing that “[u]nless the
Army conducts the discussions required by DFARS 215.306 under the facts of this case,
the awards will be the result of a flawed procurement process.” Reply Brief of
Defendant-Appellant United States, Dell Fed. Sys., L.P. v. United States, 906 F.3d 982(Fed. Cir. 2018) (Nos. 17-2516, 17-2535, 17-2554), 2018 WL 790985, at *13; see id. at *19(“The regulatory expectation in this procurement was that the Army would conduct
discussions and the record shows that the agency had no reason not to do so.”).
Accordingly, the Court in this case asks whether the Agency has sufficiently
justified its decision not to engage in discussions. 23 The Agency’s analysis – at least as
22Although the DFARS provision at issue employs the word “should” when delineating an
agency’s obligation to engage in discussions in a procurement in excess of $100 million, the
Federal Circuit specifically quoted the Supreme Court’s decision in SAS Inst., Inc. v. Iancu, 138
S. Ct. 1348, 1354 (2018), for the proposition that “[t]he word ‘shall’ generally imposes a
nondiscretionary duty.” Dell Fed. Sys., 906 F.3d at 995-96. Nevertheless, the Federal Circuit
recognized – based on FAR 2.101’s definition of the operative term “should” as well as GAO
precedent – “that DFARS 215.306(c)(1) is reasonably read to mean [only] that ‘discussions are
the expected course of action in [Department of Defense] procurements valued over $100
million[.]’” Id. at 996 (emphasis in original) (quoting Sci. Applications Int’l Corp., B-413501, 2016
CPD ¶ 328, 2016 WL 6892429, *8 (Nov. 9, 2016)).
23See Flight Safety Int’l v. United States, No. 15-1010C, ECF No. 12 (Fed. Cl. Sept. 15, 2015)
(unpublished order), at *1–*2 (agreeing with the plaintiff’s argument that DFARS 215.306(c)(1)
“which contains the word ‘should,’ occupies the ground somewhere between ‘may’ and ‘must’
and in light of this wording there must be reasonableness on the part of the Agency not to
conduct discussions”).
32
contained in the administrative record, as filed – falls woefully short. The only germane
discussion in the record the Court could locate is contained in a single paragraph in the
POM/PNM. See AR 3424 (Section VII, ¶ 1 (“Award without discussions”)). That
paragraph, however, nowhere explains why discussions would be inappropriate in the
circumstances of this procurement, but rather merely repeats, with different wording,
the best value analysis undergirding the selection of F3EA, generally. Compare id. with
AR 3424 (Section VII, ¶ 2 (“Source Selection Decision”)). Moreover, the POM/PNM
references a recommendation from the “Source Selection Advisory Council (SSAC)”
that “F3EA Inc. be awarded the SOF RAPTOR IV contract without discussions[,]” AR
3424, but the Court could locate no further analysis on the subject in the administrative
record, and the government cites to none.
A briefing from the SSEB to the SSAC notes that “[t]he PCO determined that it is
in the Government’s best interest to award without discussions[,]” AR 4941, but that
conclusory statement is plainly insufficient to satisfy DFARS 215.306. Indeed, while the
SSEB briefing cites putative regulatory and statutory authorities for the proposition
“that award can be made on the basis of proposals received ‘without discussions[,]’” the
briefing critically omits any mention of, and consequently fails to deal with the
requirements of, DFARS 215.306. AR 4941 (citing FAR 15.306(a)(3), 10 U.S.C.
§ 2305(b)(4)(A)(ii), and 41 U.S.C. § 3703(a)(2)). Even more troubling still, the SSAC
Memorandum for Record, dated December 9, 2019 – provided to the Court for the first
time pursuant to the Court’s May 20, 2021 order – does not even mention the
discussions issue, despite the POM/PNM’s apparent reliance on that Memorandum.
See AR 4966. Finally, to make matters worse, the POM/PNM is inexplicably dated
October 2018 in a footer across the bottom of each page of that document, while the
SSEB briefing is dated October 2019, further begging the question of precisely when –
and on what basis – the Agency decided not to conduct discussions.
Although the SSEB briefing document relies upon FAR 15.306(a) – which covers
“[c]larifications and award without discussions” – DFARS 215.306 quite clearly takes
precedence in acquisitions exceeding $100 million. 906 F.3d at 995-96. If anything, then,
the Agency got the proper framework completely backwards because the DFARS
provision makes conducting discussions the default absent a justification to the
contrary. Id. The Source Selection Plan (“SSP”) confirms the Court’s suspicion that the
Agency improperly reversed the regulatory presumptions. The SSP directs that “[i]f the
solicitation states the Government intends to award without discussions and it is later
determined that discussions are necessary, review and approve the PCO’s written
rationale (see FAR 15.306(a)(3)).” AR 1619. But the default rule in acquisitions
exceeding $100 million favors discussions. The required rationale, therefore, is not to
33
justify why “discussions are necessary” but rather why they are unwarranted. The SSP
reversed that analysis. While the Agency acknowledged that “[f]or acquisitions with an
estimated value of $100 million or more, per DFARS 215.306(c)(1), contracting officers
should conduct discussions[,]” the Agency apparently concluded, incorrectly, that FAR
15.306(a) takes precedence. AR 1620 (emphasis added) (noting that “[i]f the solicitation
states the Government intends to award without discussions, determine whether
discussions are necessary after reviewing proposal evaluation results” and that “[i]f
discussions are determined to be necessary, document the rationale and submit it to the
SSA for review and approval” (emphasis added)).
In sum, none of the aforementioned documents in the administrative record
reflect that the Agency ever considered during the procurement the requirement of
DFARS 215.306 that “discussions normally are to take place in these types of
acquisitions.” 906 F.3d at 995-96. If anything, the Agency incorrectly presumed that the
default position favored not conducting discussions. Given the facts of this
procurement – i.e., where all offerors or nearly all offerors submitted non-compliant
proposals – the Agency should have conducted discussions. 24
The government argues, however, that the Solicitation put the “offerors squarely
on notice of the Government’s intent to award the contract without discussions but
reserved the right to do so in the ‘sole discretion’ of the contracting officer.” Def. MJAR
at 56 (citing AR 1706, 1708). The government is correct that “[t]he solicitation did not
reference DFARS []215.306, either expressly, or by incorporation[,]” Def. MJAR at 57,
but the DFARS provision is a binding regulatory requirement, not a solicitation
provision or contract clause that needs to be (or even should be) incorporated in an RFP.
Thus, the government’s assertion that the DFARS provision “was not included in the
solicitation” is inapposite. Id.
Moreover, contrary to the government’s arguments, the Blue & Gold waiver rule 25
presents no obstacle to OGT’s claim because the Federal Circuit implicitly concluded
24Defense Federal Acquisition Regulation Supplement; Discussions Prior to Contract Award
(DFARS Case 2010-D013), 75 Fed. Reg. 71647-01, 71648 (Nov. 24, 2010) (explaining that “failure
to hold discussions in high-dollar value, more complex source selections has led to
misunderstandings of Government requirements by industry and flaws in the Government’s
evaluation of offerors’ proposals, leading to protests that have been sustained, and ultimately
extending source-selection timelines. DoD proposes to decrease the possibility of this outcome
by making such discussions the default procedure for source selections for procurements at or
above $100 million.”).
25In Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007), the Federal Circuit
established this doctrine “to prevent contractors from taking advantage of the government,
34
that there is no inherent contradiction between the DFARS provision and solicitation
language cautioning that an agency may not conduct discussions. The government
knows this to be the case because it took the opposite position in Dell Federal Systems of
the one it takes here. The solicitation at issue in that case similarly provided that the
Army “intend[ed] to award without conducting discussions with Offerors” and that
“the Government reserve[d] the right to conduct discussions and to permit Offerors to
revise proposals if determined necessary by the Contracting Officer.” Dell Fed. Sys., L.P.
v. United States, 133 Fed. Cl. 92, 98 (2017) (alteration in original) (administrative record
citations omitted). While Dell contended that, in light of such solicitation language, the
government erred in taking corrective action to conduct discussions in compliance with
DFARS 215.306, the government, at great length, urged this Court conclude that DFARS
215.306 must be followed and that the solicitation language posed no conflict:
[Dell] asserts that “[t]he Army overrode the DFARS’
preference [for discussions] when it clearly communicated to
offerors, through the [solicitation’s] plain language, its
contrary preference not to conduct discussions.” Dell Cross-
MJAR at 13 (emphasis original); see also GovSmart Inc. Cross-
MJAR at 11-13 (same). This circular argument ignores the
requirement that there be a reasonable basis underlying the
Army’s decision not to conduct discussions. As an initial
matter, Dell’s assertion that the Army made its final decision
to forego discussions at the time of the solicitation is not
accurate. While the solicitation stated a preference for not
conducting discussions, it clearly left that possibility open. . . .
The record therefore reflects that the Army’s final decision to
forego discussions was made well after the solicitation was
published. In any event, simply expressing a preference for
not following an expected course of action does not, in and of
itself, foreclose inquiries into whether a reasonable basis
exists upon which that preference rests. If that were the case,
then an agency could forego taking any expected course of
action just by stating that it did not want to, and without
having to ever justify that decision. The important point is
protect other bidders by assuring that all bidders bid on the same specifications, and materially
aid the administration of government contracts by requiring that ambiguities be raised before
the contract is bid, thus avoiding costly litigation after the fact.” Id. at 1313–14 (citation
omitted).
35
that, while DFARS 215.306 does not eliminate the agency’s
discretion to forego discussions, it remains that there must be
a reasonable basis for the exercise of that discretion.
Redacted Resp. and Reply Brief of Defendant United States, Dell Fed. Sys., L.P. v. United
States, 133 Fed. Cl. 92 (2017) (Nos. 17-465, 17-473), at *4-*5 (internal citations omitted).
Moreover, the government in Dell Federal Systems took the position that Blue &
Gold was inapplicable (and not merely because the government’s decision to engage in
discussions pursuant to DFARS 215.306 was part of corrective action):
In any event, plaintiffs and plaintiff-intervenors insistence
that GAO would have dismissed the protests on timeliness
grounds is belied by the administrative record. As we
discussed above, although the Army announced an intent to
award without discussions, the solicitation clearly left the
possibility open. . . .While the solicitation announced an intent
to forego discussions, the Army was required to act
consistently with DFARS 215.306 and only do so [i.e., forgo
discussions] if a reasonable basis existed. Unsuccessful offerors
would likely be able to challenge the Army’s final decision – made
after the close of the solicitation – to make award decisions without
discussions.
Id. at *9 (emphasis added). The government’s sudden change of heart due to the
exigencies of this case is not persuasive.
On the merits, the Court further rejects the government’s argument that the
DFARS provision at issue is nothing more than an unenforceable “recommendation”
and somehow “is not mandatory[.]” Def. MJAR at 57. This position is simply
untenable in light of the government’s having persuaded the Federal Circuit to adopt
the opposite view in Dell Federal Systems, 906 F.3d at 996 (finding “undisputed
procurement defect of originally failing to conduct pre-award discussions, as
reasonably interpreted by the agency to be required by the applicable regulations, in the
first instance”).
F3EA advances a more creative argument, contending that Blue & Gold bars
OGT’s protest ground regarding DFARS 215.306 because the government failed to
include in the solicitation the correct FAR provision: FAR 52.215-1 Alternate I. See Intv.
MJAR at 34-36 & n.25. According to F3EA, the proper way for agencies to implement
36
DFARS 215.306 is to follow DFARS 215.209, which provides that “[f]or source selections
when the procurement is $100 million or more, contracting officers should use the
provision at FAR 52.215-1, Instructions to Offerors—Competitive Acquisition, with its
Alternate I.” DFARS 215.209(a). In that regard, pursuant to the Defense Department’s
Final Rule implementing DFARS 215.306 and DFARS 215.209, “[u]se of the [FAR
52.215-1] clause without Alternate I will not accomplish the stated objectives; only the
clause with its Alternate I will accomplish the purpose of this case.” Defense Federal
Acquisition Regulations Supplement; Discussions Prior to Contract Award (DFARS
Case 2010-D013), 76 Fed. Reg. 58150-01, 58152 (Sept. 20, 2011). Thus, F3EA’s argument
is that because “the solicitation includes standard FAR 52.215-1 (without Alternate I), the
solicitation reflects on its face that the agency has exercised its discretion not to
implement the policy in DFARS 215.306(c)(1) to the procurement.” Intv. MJAR at 34
(emphasis in original) (citing Blue & Gold, 492 F.3d at 1313, and arguing that “[a] party
who fails to object to the terms of a solicitation prior to the date for proposal
submissions waives its ability to raise the objection later in a bid protest”).
F3EA’s point is not without merit, but, on balance, the Court concludes that
F3EA’s reading is in unacceptable tension with the Federal Circuit’s decision in Dell
Federal Systems. F3EA argues at length (albeit in a footnote) that this Court “did not
decide the meaning of DFARS 215.306 but rather just that the agency’s interpretation of
said regulation to justify corrective action was not completely irrational.” Intv. MJAR at
36 n.25 (citing 133 Fed. Cl. at 103–4). The problem, of course, is that Dell Federal Systems
addressed solicitation language substantially identical to that at issue here. Indeed, in
that case, “the RFP incorporated FAR 52.212-1(g), which established an expectation that
the Army would award contracts without discussions: ‘In accordance with FAR 52.212-
1 . . . the Government intends to award without conducting discussions with Offerors.’”
Redacted Cross-MJAR of Plaintiff Dell Federal Systems, L.P., Dell Fed. Sys., L.P. v. United
States, 133 Fed. Cl. 92 (2017) (Nos. 17-465, 17-473), at *5; id. at *13 (“The Army overrode
the DFARS’ preference when it clearly communicated to offerors, through the RFP’s
plain language, its contrary preference not to conduct discussions.”).
Accordingly, what is clear to this Court is that F3EA makes the very same
argument the Federal Circuit itself implicitly rejected in Dell Federal Systems. Compare
Intv. MJAR at 35 (“[T]he RFP here conflicted on its face with an intent to conduct
discussions pursuant to the policy at DFARS 215.306(c). . . . The RFP reflected that the
preference for discussions in DFARS 215.306(c) was not being applied in this
procurement.”) with Dell Fed. Sys., 906 F.3d at 996 (“We determine that the corrective
action of conducting discussions is rationally related to the undisputed procurement defect
of originally failing to conduct pre-award discussions, as reasonably interpreted by the
37
agency to be required by the applicable regulations, in the first instance.” (emphasis added)).
F3EA does not adequately address the Federal Circuit’s holding, beyond attempting to
distinguish it on the grounds that the case involved corrective action. But the Federal
Circuit affirmatively agreed with the agency’s conclusion in Dell Federal that the failure
to conduct discussions was an “undisputed procurement defect.” 906 F.3d at 996; see
also id. at 995 (quoting Alfa Laval, 175 F.3d 1368, for the proposition that “an agency is
bound by the ‘applicable procurement statutes and regulations’” – referring to DFARS
215.306(c)(1)).
Finally, F3EA overreads the explanatory language in the Defense Department’s
issuance of the Final Rule. Defense Federal Acquisition Regulations Supplement;
Discussions Prior to Contract Award (DFARS Case 2010-D013), 76 Fed. Reg. 58150-01,
58151 (Sept. 20, 2011). In that regard, F3EA’s reliance on the following language from
the Final Rule is from the section addressing the Defense Department’s compliance with
the “Regulatory Flexibility Act”:
There are no practical alternatives that will accomplish the
objectives of the proposed rule. When a solicitation includes the
provision at FAR 52.215-1, Instructions to Offerors—
Competitive Acquisitions, paragraph (f)(4) of the clause states
that the “Government intends to evaluate proposals and
award a contract without discussions.” If, however, the
solicitation includes FAR 52.215-1 with its Alternate I, then
the revised paragraph (f)(4) states that the “Government
intends to evaluate proposals and award a contract after
conducting discussions with offerors whose proposals have
been determined to be within the competitive range.” Use of
the clause without Alternate I will not accomplish the stated
objectives; only the clause with its Alternate I will accomplish
the purpose of this case.
Discussions Prior to Contract Award, 76 Fed. Reg. at 58151-52 (emphasis added). That
language does not add the gloss to DFARS 215.306 that F3EA attributes to it. All that
Federal Register language explains is that the standard FAR 52.215-1 reserves flexibility
to an agency to award without discussions, while the referenced Alternate version
prefers discussions, just as the DFARS provision requires. Quite obviously, a
solicitation provision that explicitly prefers discussions necessarily better effectuates the
regulatory preference for discussions embodied in DFARS 215.306. But that does not
demonstrate the converse – i.e., that a solicitation that permits award without
discussions is patently inconsistent with the DFARS provision. Indeed, in the Final
38
Rule issuance itself, the Defense Department concluded that “[t]he rule does not
duplicate, overlap, or conflict with any other Federal rules.” Discussions Prior to
Contract Award, 76 Fed. Reg. at 58151-52.
Moreover, the Court simply cannot attribute significant weight to the section of
the Federal Register entry addressing the “Regulatory Flexibility Act,” particularly
given that the purpose of that section is not to provide an authoritative interpretation of
the Final Rule itself, and, more importantly, because the Court cannot begin to
understand the precise point the Defense Department was trying to make if F3EA’s
view is correct. In that regard, the Defense Department’s assertion that “[t]here are no
practical alternatives that will accomplish the objectives of the proposed rule” is
fundamentally inconsistent with F3EA’s reading, to the extent that F3EA contends that
Alternative I of FAR 52.215-1 would do just that. Put differently, according to the
F3EA’s view of the Final Rule, DFARS 215.209 would accomplish the desired result for
acquisitions exceeding $100 million, and thus DFARS 215.306 would be rendered
superfluous. This, the Court will not do. Baude v. United States, 955 F.3d 1290, 1305
(Fed. Cir. 2020) (“The government’s interpretation of the regulation ‘is thus at odds with
one of the most basic interpretative canons:’ that a statute or regulation ‘should be
construed so that effect is given to all its provisions, so that no part will be inoperative
or superfluous, void or insignificant . . . .’” (quoting Corley v. United States, 556 U.S. 303,
314 (2009))). Particularly in light of the Federal Circuit’s decision in Dell Federal Systems,
the Court cannot conclude that OGT’s argument is untimely.
Finally, F3EA’s view is refuted by the SSP, in which the Agency acknowledged,
generally, the applicability of DFARS 215.306. AR 1620. If F3EA were correct, however,
the SSP would have noted that the Agency was making an election not to follow the
DFARS provision. In short, the Agency itself did not believe that the ordinary FAR
52.215-1 clause is patently inconsistent with DFARS 215.306. Id.Where, as here, the Agency declined to conduct discussions without considering
DFARS 215.306 – and given that regulation’s strong preference for discussions in a
procurement of this magnitude – OGT successfully has demonstrated success on the
merits of its claim. Discussions, of course, would have enabled OGT (and presumably
all of the offerors) to fully revise their respective proposals to address any deficiencies
in a final proposal revision.
39
C. The Agency Failed To Sufficiently Investigate Allegations Of A
Procurement Official’s Improper Conduct
OGT argues that the Agency insufficiently investigated OGT’s allegations that
[RM] improperly influenced the procurement in favor of F3EA. Compl. at 60–67. OGT
contends that the administrative record supports a finding of PIA violations, see 41
U.S.C. ch. 21, 26 the existence of OCIs (biased ground rules and unequal access to
information), see FAR subpart 9.5, and violations of FAR 1.602–2 and FAR 3.101-1. Pl.
MJAR at 18–40. The government counters that none of these provisions apply to the
case at hand and that, in any event, OGT “fails to overcome the ‘strong’ presumption
that the contracting officer investigated its OCI allegations and found them to be
without merit.” Def. MJAR at 58–70 (quoting Glenn Def. Marine (Asia), PTE Ltd. v.
United States, 105 Fed. Cl. 541, 568–69 (2012), aff’d, 720 F.3d 901 (Fed. Cir. 2013)). While
the Court agrees with the government that neither the allegations nor the record in this
case support a PIA or OCI violation, the Court agrees with the OGT that the Agency did
not adequately investigate possible violations of FAR 1.602-2 and FAR 3.101-1,
including serious questions of bias or improper conduct impacting the fairness and
integrity of this procurement.
The basis for all of the aforementioned allegations are emails from two former
F3EA employees, [TI] and [RS], that OGT provided to GAO and the Agency. AR 25–26,
854–55. Those emails disclosed as follows:
The three Task Orders I was referring to are the Crisis
Response Force Exercise (CRF-Ex), Unconventional Warfare
(UW), and Sensitive Activities (SA). The language in each was
almost verbatim from the previously executed TOs under SR
III wherein [* * *] wrote the SOW for the supported unit to
ensure it include the verbiage he intended to be a part of the
SR IV solicitation. As for the Soldier Tracking System (STS)
TO, I just spoke to a friend and former F3EA employee that
confirmed he wrote at least some of the language that
appeared in that STO for the solicitation. He was also present
for several conversations between [* * *] and [RM], during
which the intent for F3EA to 'get the work' and other points
of supporting a supporting information exchange were
discussed.
26 See also FAR 3.104 (Procurement integrity).
40
* * * *
During my employment at F3EA, I participated in a series of
conference calls that contained references to F3EA being the
vendor of choice for [RM] and during these calls it was made
clear that some degree of assistance would be given to F3EA
in order to weigh the SOF Raptor competition in F3EAs favor.
I was also privy to a series of comments made by F3EA
leadership in front of other employees and potential SOF
Raptor Teammates that [RM] and other USG rep's would
make sure that F3EA had a strong advantage. These
advantages came in the form F3EA being able to write the
SME position descriptions and qualifications for STOs1-3.
Myself and atleast [sic] 3 other employees participated in
writing these requirements and immediately recognized the
verbiage and terminology used in the SOF Raptor solicitation.
[* * *]. It was also assumed that only only [sic] F3EA would
be able to provide historic AARs and RMTs (that supported
STOs 1-3) that would support the solicitation requirement
and that these documents would be used to further deter
competition. [* * *].
AR 2312, 2386–87.
The PIA statute, codified at 41 U.S.C. §§ 2101–2107, prohibits federal government
officials from “knowingly disclos[ing] contractor bid or proposal information or source
selection information before the award of a Federal agency procurement contract on
which the information relates.” 41 U.S.C. § 2102(a)(1). FAR 9.505 prohibits offerors
from “prepar[ing] . . . a work statement to be used in competitively acquiring a system”
and instructs offerors to avoid access to information that that “is relevant to the contract
but is not available to all competitors, and such information would assist that contractor
in obtaining the contract.”
To the extent that F3EA was involved in crafting task orders for SOF RAPTOR
III, on which it was an incumbent contractor, and even if those task orders were selected
as STOs for SOF RAPTOR IV for the benefit of F3EA, OGT fails to sufficiently allege
that [RM] disclosed “contractor bid or proposal information” or “source selection
information” from the present SOF RAPTOR IV procurement as prohibited by 41 U.S.C.
§ 2102.
41
For similar reasons, OGT’s OCI allegations fail. Any possible advantage that
F3EA may have had in responding to the sample task orders selected for SOF RAPTOR
IV as a result of its performance of SOF RAPTOR III is a natural advantage of
incumbency. “Incumbent status, without more, typically does not constitute ‘unequal
access to information’ for purposes of showing an OCI.” Sys. Plus, Inc. v. United States,
69 Fed. Cl. 757, 772 (2006). GAO decisions similarly confirm that “the government is
not necessarily required to equalize competition to compensate for such an advantage,
unless there is evidence of preferential treatment or other improper action.” Superlative
Tech., Inc., B-415405.2, 2018 CPD ¶ 19, 2018 WL 585679, *5 (Jan. 5, 2018); see also Lovelace
Sci. & Tech. Servs., B-412345, 2016 CPD ¶ 23, 2016 WL 359122, *8 (Jan. 19, 2016); QinetiQ
N. Am., Inc., B-405008.2, 2011 CPD ¶ 154, 2011 WL 357875, *9 (July 27, 2011).
This, however, does not end the Court’s inquiry because the above-quoted
emails also raised allegations that [RM] specifically conducted the procurement in a
manner that would favor F3EA. See FAR 9.508 (providing that the FAR does not
provide an “all inclusive” list of all possible conflicts of interests); see also Harkon, Inc. v.
United States, 133 Fed. Cl. 441, 461–66 (2017). While these allegations may not fit
squarely within a PIA or OCI framework, they certainly raise questions regarding
whether the procurement was “conducted in a manner above reproach and . . . with
complete impartiality and preferential treatment for none[.]” FAR 3.101-1. This FAR
provision further instructs that “[t]he general rule is to avoid strictly any conflict of
interest or even the appearance of a conflict of interest in Government-contractor relationships.”
FAR 3.101-1 (emphasis added); see also FAR 1.602-2 (“Contracting officers
shall . . . ensure that contractors receive impartial, fair, and equitable treatment[.]”). 27
Indeed, these objectives are so central to the procurement system as a whole that even
the mere appearance of impropriety can be sufficient grounds to disqualify an offeror.
See NKF Eng’g, Inc. v. United States, 805 F.2d 372, 376–77 (Fed. Cir. 1986).
27Department of Defense guidance also reflects the types of concerns that OGT raises here. See
DOD Contracting Officer’s Representative Handbook, at 23–24 (Mar. 22, 2012), available at
https://www.acq.osd.mil/dpap/cpic/cp/docs/USA001390-
12_DoD_COR_Handbook_Signed.pdf (explaining that “[p]rivate firms must be able to compete
for the Government’s business on a scrupulously fair basis” and that “increas[ing] the prospects
for award to another vendor is an obviously unfair practice”); see also Department of Defense
Office of Inspector General, Report No. D-2008-094, at 20–21 (May 20, 2008), available at
https://media.defense.gov/2019/May/13/2002131090/-1/-1/1/DODIG-2008-094.PDF
(investigation report finding “a pattern of behavior that gave an advantage to [a particular
contractor] in competing for the contract and so constituted preferential treatment” in violation
of FAR 3.101).
42
As with all agency decision-making, the Court must analyze whether the Agency
conducted an adequate investigation consistent with the arbitrary and capricious
standard of review. See PAI Corp. v. United States, 614 F.3d 1347, 1352–53 (Fed. Cir.
2010) (reviewing conflict of intertest investigation under APA standard); cf. Former Emps
of Ameriphone, Inc. v. United States, 288 F. Supp. 2d 1353, 1355 (C.I.T. 2003) (“Courts have
not hesitated to set aside agency determinations which are the product of perfunctory
investigations.” (footnote omitted)). Notwithstanding the significant discretion vested
in procurement officials, this Court must ascertain whether there exists a “rational
connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n,
463 U.S. at 43 (internal quotation marks omitted). For the reasons explained below, the
Court is greatly troubled by the Agency’s circumscribed investigation and, even more
so, by the facts that came to light as a result of this bid protest action. See PCCP
Constructors, JV, B-405036, 2011 CPD ¶ 156, 2011 WL 3510746, *18 (Aug. 4, 2011) (“In our
view, the agency’s failure to reasonably investigate the OCI taints the integrity of the
procurement process.”).
First, as part of the Agency’s investigation into OGT’s allegations, the PCO
reviewed written statements that four individuals involved in the evaluation process
submitted to the Agency and conducted two in-person interviews. AR 2041–44. They
all categorically denied that F3EA was involved in any way in selecting the STOs for the
SOF RAPTOR IV RFP and that they never saw or heard any action that would lead
them to believe that [RM] was steering the award to F3EA. Id. [RM] also submitted a
written statement, in which he issued similar blanket denials. AR 2044–45. While such
efforts are certainly the start of a reasonable investigation, this is where the Agency
decided to conclude its investigation. The Court holds that the failure to do more was
insufficient under the facts of this case. Cf. AAR Mfg., Inc. v. United States, 149 Fed. Cl.
514, 529 (2020) (describing a reasonable OCI investigation and rejecting the plaintiff’s
assertion that the contracting officer “merely rubber-stamp[ed] rote affidavits”). In
particular, the Agency should have, but never, interviewed either F3EA [* * *], who
was mentioned by name in the allegations, or, more critically, the two former F3EA
employees who raised the allegations. The PCO in his May 1, 2020 PIA memorandum,
observed that the allegations “did not provide a timeline of when the statements and
discussions occurred, the topics of the discussion and who were other parties that were
present.” AR 2569–72. This is certainly an appropriate observation for an investigator
to make but begs the question why the Agency did not follow-up with the individuals
making the allegations. Rather than conducting any follow-up, the Agency summarily
closed the investigation, reflecting a lack of curiosity that could only be described as
ostrich-like. In an investigation that counsel of record for the government framed as
“com[ing] down to a credibility question,” see ECF No. 45 (“Oral Argument Tr.”) at
43
118:8, it is inadequate, at best, and sloppy, at worst, not to interview (or at least attempt
to interview) the individuals who made the allegations. In that regard, the government
could not explain how a credibility determination – which, by definition, is relative
when dealing with two mutually exclusive versions of the facts – can be made by
talking to only one set of putative witnesses. See id. at 118:5–127:20.
Second, the Court’s further review of the final, corrected administrative record
revealed that [RM] played multiple roles in the procurement and that he reviewed his
own work. For the past performance volume of the proposal, offerors were permitted
to submit five contracts that were evaluated for relevancy and confidence. AR 1700,
1715–16. Offerors also were required to submit a completed PPQ for each past
performance contract reference. AR 1701. F3EA submitted [* * *] previously
completed contract references from the incumbent SOF RAPTOR III vehicle. AR 3246–
48, 3358. The PPQs and the additionally provided contractor performance assessment reporting
system (“CPARS”) reports for F3EA all were provided by [RM]. AR 3246–48. On all five
CPARSs, [RM] rated F3EA “exceptional” in every category and provided glowing
narratives of F3EA’s work on the SOF RAPTOR III. AR 3278–91, 3329. All the PPQs
were rated “outstanding” for every section of each contract and, likewise, provided
glowing narrative. AR 3292–3324. All of these documents formed the basis for F3EA’s
past performance volume evaluation that was conducted by a team of SOF RAPTOR IV
evaluators, which reported to the SSEB Chair, [RM]. AR 1631.
This case is far more concerning than other cases where courts declined to find
any impropriety. In Galen Medical Associates, Inc. v. United States, for example, the
Federal Circuit held that the plaintiff failed to demonstrate the appearance of a conflict
of interest based on allegations that an evaluation panel member was also listed as a
potential past performance reference, with whom the agency might consult. 369 F.3d
1324, 1335 (Fed. Cir. 2004). In that case, however, the Federal Circuit emphasized that
there was no evidence that the evaluator “had been contacted and agreed to serve as a
past-performance reference” and, therefore, “the mere fact that [the offeror] listed an
evaluator as a past performance reference does not constitute a conflict of interest.” Id.
at 1336–37. In EFW, Inc. v. United States, a case with facts slightly more analogous to the
instant one, this Court held that the plaintiff failed to show improper conduct where a
member of the SSEB also authored a PPQ for one of the seven contracts that the offeror
submitted in its past performance volume. 148 Fed. Cl. 396, 405–06 (2020). But, in that
latter case, the SSEB member only “evaluated a single prior contract” and, more
importantly, he only rated the offeror “with a ‘Satisfactory’ technical performance
evaluation.” Id. (emphasis added).
44
Both of these cases stand in stark contrast to the instant case for the simple
reason that in Galen Medical and EFW the respective court was at least able to discern
based on the particular facts why there was no material conflict or appearance of a
conflict. Here, however, F3EA submitted five past performance contract references in
its proposal. And, for each of those five contracts, SSEB Chair [RM] provided the very
PPQs in which he rated F3EA as “outstanding” in every category. AR 3292–3324. Then,
as the SSEB Chair, [RM] oversaw the evaluations of F3EA, which included the
evaluation of F3EA’s proposal, including its past performance volume containing
[RM’s] completed PPQs. Whether or not this structure and process constituted an
actual (prohibited) conflict of interest, the circumstances certainly warranted a more
detailed and thorough investigation in light of the allegations for which there were hard
facts provided to the Agency (and the GAO).
Third, and most troubling, is the Agency’s total obfuscation of [RM’s] role in this
procurement. Until late in this litigation, the Court had been working with the premise
of OGT’s allegation that [RM] was the contracting officer representative (“COR”) for
SOF RAPTOR III and a point of contact somehow involved with SOF RAPTOR IV, but
the Court and presumably OGT were unsure about his precise role. 28 Indeed, even the
government’s counsel asserted that they did not know what [RM’s] precise role was in
the procurement at issue, as evident from the following exchange during oral argument:
THE COURT: Well, was [RM] on the evaluation team as
well in any capacity?
MR. PIXLEY: I don’t think the record establishes
that….
THE COURT: Do you know?
MR. PIXLEY: I do not know.
THE COURT: Does agency counsel know?
MR. PARENT: No, you honor.
28See AR 25-26; Pl. MJAR at 1 (referring to [RM] as the COR for SOF RAPTOR III). The FAR
defines COR as “an individual, including a contracting officer’s technical representative
(COTR), designated and authorized in writing by the contracting officer to perform specific
technical or administrative functions.” FAR 2.101.
45
Oral Argument Tr. at 122:15–122:22. The government emphasized – erroneously, as it
turns out – that regardless of whatever role [RM] may have played in the evaluations,
“there was a separate source selection evaluation board.” Id. at 122:25–123:1.
Further review of the administrative record, however – particularly after the
government filed its May 25, 2021, corrected version of that record – uncovered that
[RM] was most certainly involved in the evaluations; as noted above, he was the SSEB
Chairperson. AR 1631. As such, he was charged with writing the PER containing “the
adjectival assessments for each factor and subfactor as well as a Cost/Price report and
the supporting rationale.” AR 1627. Furthermore, he was essentially in charge of all the
evaluators (including [JL], [GH], [ZH], and [MD]) and the capability factor chairperson
([JS]) – all of whom provided written statements or were interviewed as part of the
Agency’s limited investigation of OGT’s allegations regarding [RM]. AR 1627, 1631.
The Court finds it quite disturbing that this critical detail was omitted from the
investigation memoranda. See AR 2037–46, 2569–72. Moreover, this most certainly
raises serious questions regarding the propriety of [RM’s] submitting PPQs on behalf of
F3EA and then objectively “adjectively assess[ing]” his own work. AR 1627.
It only gets worse from here.
In a sworn declaration submitted to GAO as part of OGT’s second protest,
[RM’s] second line supervisor averred that “[she] saw no indication that he acted
improperly during the source selection process.” AR 3530. She then added that
“[h]owever, for un-related reasons, I had another Government employee conduct an
independent evaluation of the proposals for [SOF RAPTOR IV] which resulted in the
updated Proposal Evaluation Report.” Id. She did not elaborate on the nature of the
“un-related reasons” for the updated PER, nor was it readily apparent from the
administrative record. After the Court ordered the government to provide any
additional documents relating to “[RM’s] role in the procurement at any stage[,]”
however, the government provided, without any explanation for its original omission, an
April 30, 2020, letter, terminating [RM’s] role as SSEB Chair. ECF No. 56. That
termination letter is decidedly unhelpful for the government.
From that termination letter – provided for the first time in response to the
Court’s May 28, 2021 order – the Court learned the following:
This termination is the result of repeated inconsistencies within
multiple revisions of the Proposal Evaluation Report (PER),
including significant findings being omitted that were documented
in the consensus roll up. These omissions resulted in incomplete
46
evaluation review by the Source Selection Advisory Council and
(SSAC) and SSA and incomplete evaluation information being
provided to the Offerors during the debriefing. As a result of
multiple Government Accountability Office protests, the
Procuring Contracting Officer initiated corrective actions to review
and amend the PER to ensure that the solicitation criteria was
followed. The corrective action was to add the omitted information
into the PER, review the findings for compliance and determine if
the ratings assessed were still relevant considering the additional
information. Each subsequent version of the PER has had
significant areas of disagreement between the documented findings
and the solicitation requirements or areas where the proposal
citations do not support the rating that was assessed. The fact that
these areas seem to persist with every new version of the PER
has led to the conclusion that appointment of a new SSEB
Chairperson is necessary.
AR 5388 (emphasis added).
Of course, given that this letter was not included in the administrative record
until after all of the briefing, oral argument, and status conferences were concluded, the
Court still has no idea what “significant findings [were] . . . omitted” or precisely what
“incomplete evaluation information [was] . . . provided to the Offerors during the
debriefing” or how the final version of the PER differed (if at all) from earlier versions
and revisions in which [RM] had a role. Id. This disturbing document – produced way
too late in the day for this litigation – certainly casts a long shadow over [RM’s] conduct
in his role as SSEB Chair during this procurement, lends more than a modicum of
support to the allegations of F3EA’s former employees, and was not addressed by either
the PCO’s investigation memoranda or counsel of record in this case. See AR 2037–46,
2569–71.
Moreover, [RM] himself omitted critical details from his declaration submitted to
the GAO as part of the second protest (B-418427.6). AR 3842. In that declaration, [RM]
described himself as the COR for SOF RAPTOR III, as well as having “played a role in
the development and coordination of the [SOF RAPTOR] IV re-competition effort.”
Id. 29 Given OGT’s allegations, however, [RM] effectively concealed his central role in
the SOF RAPTOR IV evaluation process. That his role was significant is evident by the
Similarly, the government’s administrative record index describes [RM] as merely an
29
“Assistant Project Manager.” ECF No. 23 at 5; ECF No. 56 at 5.
47
fact that the Agency determined that it was compelled to remove him from his position
as SSEB Chair and to redo his work in whole or part. The obfuscation of these facts is
unacceptable.
The fact that the Agency removed [RM] from his role as SSEB Chair is yet further
complicated by the apparent failure of the Agency to implement fully the corrective
action to which the Agency committed itself before the GAO. In particular, although
the Agency represented to GAO that, as part of corrective action, “[t]he Army will
reevaluate proposals consistent with the solicitation, determine the impact of the
reevaluations on the source selection decision, and document its reevaluation[,]” AR 348
(emphasis added), the Agency apparently did no such thing. In that regard, the SSAC
Chairperson’s memorandum, dated August 21, 2020, mischaracterized the Agency’s
commitment to GAO as follows:
As a result of the information contained in the protest
documents, the PCO petitioned the GAO to dismiss the
protests based on the fact that the Government would review
the evaluation and take corrective action as necessary to ensure
that the evaluation was conducted in accordance with the
solicitation requirements.
AR 3343 (emphasis added). But the Agency committed to GAO to do something far
more specific than a vague undertaking of “corrective action as necessary.” Id. Rather,
the Agency committed to reevaluate proposals. A reevaluation of proposals strikes the
Court as legally and factually quite different than merely conforming the PER to the
underlying, original evaluations, which seems to be all that the Agency did, as the PCO
noted in the same memorandum:
As a result of the corrective action, the PER was updated to
reflect an accurate representation of the evaluation of the Offerors
proposals inserting additional findings and ensuring that the
findings were consistent with the evaluation criteria outlined in the
solicitation.
AR 3343-44 (emphasis added); compare id. with AR 1626-27 (describing complete
evaluation process).
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A similar characterization of the Agency’s actual “corrective action” is contained
in the source selection decision document:
As a result, the PCO initiated corrective actions and arranged
for an independent review of the evaluation. It was found that
there were findings in the consensus roll ups that were not carried
forward into the original PER. All PER information was reviewed
and updated to reflect the additional information.
AR 3350 (emphasis added) (noting that “the update did not change the award
decision”).
The Court holds that updating the PER plainly is not the same as reevaluating
proposals. Had the Agency fully implemented its promised corrective action, perhaps
it could have avoided this protest. Instead, the Court is left with yet further,
unanswered questions regarding the Agency’s conduct in this procurement and the role
[RM] played in it.
* * * *
Given all of these facts – many of which should have been contained in
documents filed as part of the original administrative record but which the Court was
forced to order the government to provide – the Court concludes that the Agency’s
investigation into questions of improper conduct was patently insufficient and
undermines the integrity of the procurement process and the award decision. Indeed,
the Agency’s actual corrective action, as implemented, raises yet further concerns with
regard to the initially filed administrative record. The Court simply does not
understand on what basis the government declined to include certain documents from
the so-called “‘first’ evaluation of proposals (before the GAO protest and corrective
action)” – as opposed to “the second evaluation” – given that there was no reevaluation.
ECF No. 47 at 2. Put yet differently, as far as the Court can tell, any and all documents
relating to the so-called “‘first’ evaluation” would have been relevant to the so-called
“second evaluation” because the only thing that changed was the PER and the updated
Source Selection Decision. See AR 3345, 3371 (updated Source Selection Decision noting
that the SSAC “was briefed on 28 October 2019 to discuss evaluation progress” – which
was part of the “first evaluation” as that term has been used by the government in this
litigation). That is, the updated PER and SSDD relied upon the original evaluation. That is
deeply disturbing, not only in terms of how the government shaped the administrative
record here (and, apparently, before the GAO), but also in terms of the explanation the
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government previously provided to the Court regarding the initial record omissions.
The Court expects the government to address these concerns in detail.
VI. INJUNCTIVE RELIEF
The Tucker Act vests this Court to award “any relief that the court considers
proper, including . . . injunctive relief.” 28 U.S.C. § 1491(b)(2); see RCFC 65. In
evaluating whether permanent injunctive relief is warranted in a particular case, a court
must consider: (1) whether the plaintiff has succeeded on the merits; (2) whether the
plaintiff has shown irreparable harm without the issuance of the injunction; (3) whether
the balance of the harms favors the award of injunctive relief; and (4) whether the
injunction serves the public interest. PGBA v. United States, 389 F.3d 1219, 1228-29 (Fed.
Cir. 2004).
As this Court explained at length above, OGT has succeeded on the merits of its
claims that the Agency acted in an arbitrary and capricious manner in evaluating
F3EA’s and Lukos’ proposals, not conducting discussions, and failing to sufficiently
investigate the conduct of SSEB Chairperson [RM] and whether he improperly
influenced the procurement.
In evaluating irreparable harm, “[t]he relevant inquiry . . . is whether plaintiff has
an adequate remedy in the absence of an injunction.” Magellan Corp. v. United States, 27
Fed. Cl. 446, 447 (1993). In the bid protest context, “[a] lost opportunity to compete in a
fair competitive bidding process for a contract is sufficient to demonstrate irreparable
harm.” Magnum Opus, 94 Fed. Cl. at 544. Moreover, “[t]he court has repeatedly held
that the loss of potential profits from a government contract constitutes irreparable
harm.” BINL, Inc. v. United States, 106 Fed. Cl. 26, 49 (2012) (internal quotation marks
omitted). Here, OGT was denied the opportunity to fairly compete for this valuable
single award IDIQ, which had a potential value of $245 million. The Court, thus, agrees
that OGT will suffer irreparable harm in the absence of an injunction.
In balancing the harms, the Court ordinarily is required to “give due regard to
the interests of national defense and national security and the need for expeditious
resolution of the action.” 28 U.S.C. § 1491(b)(3); see Afghan Am. Army Servs. Corp. v.
United States, 90 Fed. Cl. 341, 368 (2009). The government, however, already has agreed
that the Court “should make any relief ruling without regard to any cost or disruption
from terminating, recompeting, or reawarding the challenged contract.” February JSR
at 2–3. The government reaffirmed this agreement in the parties’ June 2, 2021 joint
status report. June JSR at 2. The Court is likewise mindful that the parties also
represented to the Court “given the United States assertions that an abrupt cessation
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without a transition period could disrupt military readiness. . . . [T]he parties will agree
to cooperate to ensure a reasonable period of transition on any pending task orders that
are being performed should there be a permanent injunction.” Id.Finally, the public interest favors this Court’s granting an injunction, as “the
public always has an interest in the integrity of the federal procurement system.” Starry
Assocs., Inc. v. United States, 127 Fed. Cl. 539, 550 (2016) (citing Hosp. Klean of Tex., Inc. v.
United States, 65 Fed. Cl. 618, 624 (2005)); see Ian, Evan & Alexander Corp. v. United States,
136 Fed. Cl. 390, 429 (2018) (“An important public interest is served through conducting
‘honest, open, and fair competition’ under the FAR, because such competition improves
the overall value delivered to the government in the long term.” (quoting CW Gov't
Travel, Inc. v. United States, 110 Fed. Cl. 462, 495 (2013))); MVM, Inc. v. United States, 46
Fed. Cl. 137, 143 (2000) (“Many cases have recognized that the public interest is served
when there is integrity in the public procurement system.”). This is particularly true
where, as here, there are substantial allegations of impropriety, the Agency’s
investigation of those allegations was patently insufficient, and where the government
apparently failed to implement the corrective action to which it had committed before
the GAO.
CONCLUSION
For the above reasons, the Court: GRANTS both OGT’s motion to amend its
complaint and OGT’s motion for judgment on the administrative record (including
OGT’s request for permanent injunctive relief); DENIES the government’s motion to
dismiss for lack of standing and motion for judgment on the administrative record; and
DENIES F3EA’s motion for judgment on the administrative record.
The Agency hereby is enjoined from proceeding with its contract award to F3EA,
with the exception of already awarded task orders that currently are being performed.
Given the defects in F3EA’s and Lukos’ respective proposals identified above, the
Agency’s failure to conduct discussions, as well as the Agency’s inadequate
investigation into alleged wrongdoing by the SSEB Chair, the Court concludes that it
has no choice but to order the Agency either: (1) to resolicit this procurement from its
inception; or (2) to reopen the procurement to conduct discussions and accept new final
proposal revisions from offerors. In either case, the Agency must conduct an entirely
new set of evaluations, consistent with the Court’s understanding of the corrective
action the Agency committed to undertake before GAO. In implementing either of
these foregoing options, and to ensure compliance with FAR 3.101-1 and FAR 1.602-2,
the Agency shall further consider and investigate OGT’s allegations and the related
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concerns the Court identified above, although the Court declines to superintend that
process or otherwise provide detailed instructions to the Agency.
Finally, pursuant to RCFC 11 and this Court’s inherent authority, the Court
orders the government to show cause why monetary sanctions should not be imposed
against Defendant for its piecemeal and improper handling of the administrative record
in this matter. The government shall specifically address the DCMA report regarding
Lukos, AR 4993–5006, as well as the [RM] termination letter, AR 5388–89. The
government shall file a brief addressing this issue not to exceed ten (10) pages, double-
spaced, 12 pt. Times New Roman font, on or before August 17, 2021. OGT may file a
response brief, subject to the same page length and formatting constraints, on or before
August 24, 2021. The Court expects OGT to address any prejudice it may have suffered
by the late disclosure of the aforementioned documents and, in particular, the extent to
which OGT was aware of the specific information contained in those documents during
the pendency of the GAO protest. The government may file a reply brief, subject to the
same formatting constraints but not to exceed five (5) pages, on or before August 31,
2021.
IT IS SO ORDERED.
s/Matthew H. Solomson
Matthew H. Solomson
Judge
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