1 

In the United States Court of Federal Claims

BID PROTEST

Nos. 17-80C and 17-83C 

Filed Under Seal: June 23, 2017 

Reissued for Publication: July 12, 2017*

QTC MEDICAL SERVICES, INC.,

Plaintiff,

v. 

THE UNITED STATES,

Defendant.

v. 

LOGISTICS HEALTH, INC., MEDICAL 

SUPPORT LOS ANGELES, and 

VETFED RESOURCES, INC.,

 Defendant-Intervenors. 

)

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

)

Post-Award Bid Protest; Judgment 

Upon the Administrative Record, RCFC 

52.1; Permanent Injunction; 

Supplementing the Administrative 

Record.

 

VETERANS EVALUATION 

SERVICES, INC.,

Plaintiff,

v. 

THE UNITED STATES,

Defendant.

)

) 

) 

) 

) 

) 

) 

) 

) 

) 

)

 

 

 

* This Memorandum Opinion and Order was originally filed under seal on June 23, 2017 (QTC docket 

entry no. 64, VES docket entry no. 73). The parties were given an opportunity to advise the Court, by 

July 24, 2017, of their views with respect to what information, if any, should be redacted. On June 28, 

2017, the parties informed the Court that there was no proprietary or source selection information 

contained in the Court’s opinion and that no redactions were necessary or appropriate (QTC docket entry 

no. 66; VES docket entry no. 75). And so, the Court is reissuing its Memorandum Opinion and Order 

dated June 23, 2017, without redactions.
2 

v. 

LOGISTICS HEALTH, INC., MEDICAL 

SUPPORT LOS ANGELES, QTC 

MEDICAL SERVICES, INC., and 

VETFED RESOURCES, INC.,

 Defendant-Intervenors.

)

) 

) 

) 

) 

) 

) 

) 

)

Marcia G. Madsen, Counsel of Record, Mayer Brown, LLP, Washington, DC, David F. 

Dowd, Counsel, Luke Levasseur, Counsel, Roger V. Abbott, Counsel, Mayer Brown, LLP, 

Washington DC, for plaintiff and defendant-intervenor, QTC Medical Services, Inc. 

Stuart W. Turner, Counsel of Record, Arnold & Porter Kaye Scholer LLP, Washington, 

DC, for plaintiff, Veterans Evaluation Services, Inc. 

Elizabeth Anne Speck, Senior Trial Attorney, Robert E. Kirschman, Jr., Director, 

Douglas K. Mickle, Assistant Director, Chad A. Readler, Acting Assistant Attorney General, 

Margaret J. Jantzen, Trial Attorney, Commercial Litigation Branch, Civil Division, United 

States Department of Justice, Washington DC, Lynn T. Burleson, Attorney, United States 

Department of Veterans Affairs, Washington, DC, Frank DiNicola, Protest Attorney, Office of 

General Counsel, United States Department of Veterans Affairs, Eatontown, NJ, for defendant. 

Jason A. Carey, Attorney of Record, Covington & Burling, LLP, Washington, DC, J. 

Hunter Bennett, Of Counsel, Julia A.C. Lippman, Of Counsel, John W. Sorrenti, Of Counsel, 

Kevin M. Barnett, Of Counsel, Covington & Burling, LLP, Washington, DC, for defendantintervenors, Logistics Health, Inc. and Medical Support Los Angeles. 

Richard O. Wolf, Counsel of Record, Robert M. Moore, Of Counsel, Casey J. McKinnon, 

Of Counsel, Moore & Lee, LLP, McLean, VA, for defendant-intervenor, VetFed Resources, Inc. 

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

In these related, post-award bid protest matters, plaintiffs, QTC Medical Services, Inc. 

(“QTC”) and Veterans Evaluation Services, Inc. (“VES”), seek to set aside the Department of 

Veterans Affairs’ (“VA”) award decisions with respect to several indefinite delivery/indefinite 

quantity (“IDIQ”) contracts to provide medical disability examinations (“MDEs”) throughout the 

United States. Plaintiffs have moved for judgment upon the administrative record, pursuant to 
3 

Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”). The government 

and the defendant-intervenors in these matters—Logistics Health, Inc. (“LHI”), Medical Support 

Los Angeles (“MSLA”), VetFed Resources, Inc. (“VetFed”), and QTC—have also moved for 

judgment upon the administrative record, pursuant to RCFC 52.1. In addition, the government 

has moved to strike certain documents that QTC has submitted in support of its motion for 

judgment upon the administrative record. 

For the reasons discussed below, the Court DENIES plaintiffs’ motions for judgment 

upon the administrative record; GRANTS the government’s consolidated cross-motion for 

judgment upon the administrative record; GRANTS the defendant-intervenors’ motions for 

judgment upon the administrative record; GRANTS the government’s motion to strike; and 

DENIES, as moot, plaintiffs’ motion for clarification.

II. FACTUAL AND PROCEDURAL BACKGROUND1

A. Factual Background 

In these related, post-award bid protest matters, plaintiffs, QTC and VES, challenge the 

VA’s decisions to award several indefinite delivery/indefinite quantity contracts to provide 

MDEs to veterans throughout the United States. See generally QTC Compl.; VES Am. Compl. 

In their respective motions for judgment upon the administrative record, plaintiffs assert six 

challenges to the VA’s award decisions, namely, plaintiffs allege that: (1) the VA conducted 

misleading and unequal discussions regarding pricing; (2) the VA failed to exclude noncompetitive offerors’ high pricing from its benchmark calculations; and (3) the VA violated the 

terms of the solicitation by awarding contracts in the same district to LHI and MSLA, after these 

two companies merged and came to share a corporate parent. QTC Compl ¶¶ 4-9, 46-90; VES 

Am. Compl. ¶¶ 5, 7-8, 10, 99-104, 110-14, 120-24. 

In addition, QTC alleges that the VA deprived QTC of meaningful discussions by telling 

QTC that the subject procurement had been overcome by events. QTC Compl. ¶¶ 9, 91-94. 

 

1 The facts recited in this Memorandum Opinion and Order are taken from the fourth corrected 

administrative record (“AR”); QTC’s complaint (QTC’s Compl.”); and VES’s amended complaint (“VES 

Am. Compl.”). Except where otherwise noted, all facts recited herein are undisputed.
4 

VES also alleges that: (1) the VA’s price evaluation was flawed, because the VA only considered 

cost during the base year of the contracts, rather than for all option years; and (2) the VA failed 

to document its best value determinations. VES Am. Compl. ¶¶ 6, 9, 105-09, 115-19. As relief, 

plaintiffs request that, among other things, the Court set aside the VA’s award decisions and 

direct the VA to conduct discussions and re-evaluate responsive proposals. QTC Compl. at 

Prayer for Relief; VES Am. Compl. ¶ 124. 

1. The Initial RFP 

On September 25, 2015, the VA issued the Solicitation No. VA119A-15-R-0150, 

requesting proposals to provide MDEs for veterans at locations throughout the United States 

(“RFP”). AR at 18816-17. The RFP contemplates the award of at least one, and up to two, IDIQ 

contracts in seven districts for this purpose. Id. at 18932. Each of these contracts would have a 

12-month base period, and four 12-month option periods. Id. at 18816. 

The RFP provides that contract awards would be based upon a best-value, tradeoff basis, 

considering price and three other non-price factors in the following descending order of 

importance: (1) technical approach; (2) past performance; and (3) socioeconomic considerations. 

Id. at 18933. The RFP further provides that, in combination, the non-price factors are

significantly more important than price. Id. 

On November 4, 2015, ER Williams, Financial Designs, MCN, MediNet, MRG Exams, 

Spectrum, Sterling, LHI, MSLA, QTC, VES, and VetFed submitted proposals in response to the 

RFP. Id. at 31752. Following the evaluation of the responsive proposals, the VA awarded 

contracts to VES, VetFed, and QTC on March 28, 2016. Id. at 14643-45. 

2. First GAO Protest

Following the award of these contracts, VES, LHI, and MSLA filed protests before the 

Government Accountability Office (“GAO”), and the GAO sustained those protests in part. Id.

at 14645, 14663. Specifically relevant here, the GAO concluded in those protests that the VA’s 

price evaluation for the RFP was unreasonable, because the VA did not consider any estimate of 

the various quantities that would be ordered under each contract line item (“CLIN”) and 

subcontract line item (“subCLIN”). Id. at 14657-59. And so, the GAO recommended that the 
5 

VA analyze the comparative costs by using a sample task order, or other hypothetical pricing 

scenarios. Id. 

The GAO also concluded that the VA had conducted misleading discussions regarding 

the evaluation of price reasonableness, because the VA calculated the benchmark for 

ascertaining whether offerors’ prices were reasonable after the initial proposals were submitted

and, subsequently, calculated another benchmark for ascertaining whether offerors’ prices were 

reasonable after final revised proposals had been submitted. Id. at 14659-61. And so, the GAO 

further concluded that the VA’s “moving benchmark” violated the Federal Acquisition 

Regulation (“FAR”). Id. 

3. Revised RFP And Amendment 8

The VA took corrective action to remedy the concerns identified by the GAO in the 

aforementioned protests by issuing Amendment 8 to the RFP. Id. at 16213. Amendment 8 

provides for the evaluation of CLIN and subCLIN prices using a sample task order. Id. at 16214, 

16225-34, 22907-11. The VA informed the offerors that the quantities set forth in this sample 

task order “will be used for price evaluation purposes only and are representative of the volume 

of exams that might be expected for any of the Districts and periods of performance.” Id. at 

17246. 

In addition, Amendment 8 provides that the VA would evaluate CLIN and subCLIN unit 

prices and the sample task order price to determine whether offerors’ prices were fair and 

reasonable, and that the price reasonableness evaluation would be conducted using price analysis 

techniques prescribed in FAR 5.404-1(b). Id. at 16229. Amendment 8 also provides that 

proposed pricing would be evaluated in accordance with FAR 15.404-1(g), to ensure balance. 

Id. Finally, Amendment 8 provides that offerors may submit revised proposals that are limited to 

the price and past performance elements of the proposal. Id. at 16213-14. 

 On July 28, 2016, ER Williams, MCN, MediNet, Spectrum, LHI, MSLA, QTC, VES, 

and VetFed submitted revised proposals with respect to price and past performance in response 

to the RFP. Id. at 31758. After receiving and evaluating these revised proposals, the VA 

engaged in discussions with the offerors and, at the conclusion of those discussions, the VA 

requested and evaluated final proposal revisions. Id. at 23158-63, 31760. 

7 

 On March 21, 2017, QTC and VES commenced these bid protest matters. See generally 

QTC Compl.; VES Am. Compl. 

B. Procedural History 

On January 17, 2017, QTC filed its complaint in QTC v. United States, No. 17-80C, as 

well as a motion for a protective order, which the Court granted on January 24, 2017. See 

generally QTC Compl; QTC Mot. for Prot. Order; Order dated January 24, 2017. LHI, MSLA, 

and VetFed filed motions to intervene in the QTC matter on January 18 and January 19, 2017, 

respectively. See generally LHI and MSLA Mot. to Intervene; VetFed Mot. to Intervene. On 

January 24, 2017, the Court granted those motions. Order dated January 24, 2017. 

On January 18, 2017, VES filed its complaint in VES v. United States, No. 17-83C, which 

was subsequently amended on March 21, 2017. See generally VES Compl.; VES Am. Compl. 

On January 18, 2017, VES also filed a motion for a protective order, which the Court granted on 

January 24, 2017. See generally VES Mot. for Prot. Order; Order dated January 24, 2017. On 

January 19, 2017, LHI, MSLA, and VetFed filed motions to intervene in the VES matter, which 

the Court granted on January 24, 2017. See generally LHI and MSLA Mot. to Intervene; VetFed 

Mot. to Intervene; Order dated January 24, 2017. During an initial telephonic status conference 

held with the parties on January 24, 2017, QTC also orally moved to intervene in the VES matter. 

The Court granted QTC’s motion in an Order dated January 24, 2017. See generally Order dated 

January 24, 2017. 

On March 3, 2017, the government filed a consolidated administrative record in both 

matters. Subsequently, the government filed a consolidated, corrected administrative record on 

March 10, 2017, March 13, 2017, and March 17, 2017. On March 24, 2017, the government 

filed a fourth and final consolidated, corrected administrative record. See generally AR. 

On March 24, 2017, QTC and VES filed motions for judgment upon the administrative 

record. See generally QTC Mot.; VES Mot. On April 14, 2017, the government, LHI, MSLA, 

VetFed, and QTC filed cross-motions for judgment upon the administrative record and responses 

to plaintiffs’ motions for judgment upon the administrative record. See generally Def. Mot.; LHI 

and MSLA Mot.; VetFed Mot.; QTC Def.-Int. Mot. On April 14, 2017, the government also 

filed a motion to strike certain documents filed in support of QTC’s motion for judgment on the 

administrative record. See generally Def. Mot. to Strike. 
8 

On April 28, 2017, plaintiffs filed responses to the government’s and defendantintervenors’ cross-motions for judgment upon the administrative record and replies in support of 

their motions for judgment upon the administrative record. See generally QTC Reply; VES 

Reply. On April 28, 2017, QTC also filed a response in opposition to the government’s motion 

to strike. See generally Pl. Opp. 

On May 12, 2017, the government, LHI, MSLA, and QTC filed replies in support of their 

cross-motions for judgment upon the administrative record. See generally Def. Reply; LHI and 

MSLA Reply; QTC Def.-Int. Reply. On May 12, 2017, the government filed a reply in support 

of its motion to strike. See generally Def. Mot. to Strike Reply. 

 On May 24, 2017, plaintiffs filed motions for clarification. See generally QTC Mot. for 

Clarification; VES Mot. for Clarification.

These matters having been fully briefed, the Court addresses the pending motions. 

III. LEGAL STANDARDS

A. Bid Protest Jurisdiction

The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid 

protests brought 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). This Court reviews agency actions in bid protest matters 

under the Administrative Procedure Act’s (“APA”) “arbitrary and capricious” standard. See 28 

U.S.C. § 1491(b)(4) (adopting the standard of review set forth in the Administrative Procedure 

Act). And so, under the APA’s standard, an award may be set aside if, “‘(1) the procurement 

official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation 

of regulation or procedure.’” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 

(Fed. Cir. 2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 

F.3d 1324, 1332 (Fed. Cir. 2001)). In this regard, the Federal Circuit has explained that: 

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. When a challenge is brought on the second ground, 
9 

the disappointed bidder must show a clear and prejudicial violation of applicable 

statutes or regulations. 

Id. at 1351 (internal citations omitted).

In reviewing an agency’s procurement decision, the Court also recognizes that the 

agency’s decision is entitled to a “presumption of regularity.” Citizens to Preserve Overton 

Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), abrogated on other grounds by Califano v. 

Sanders, 430 U.S. 99 (1977) (citations omitted). In addition, the Court should not substitute its 

judgment for that of the agency. Cincom Sys., Inc. v. United States, 37 Fed. Cl. 663, 672 (1997). 

And so, “‘[t]he protestor must show, by a preponderance of the evidence, that the agency’s

actions were either without a reasonable basis or in violation of applicable procurement law.’” 

Gentex Corp. v. United States, 58 Fed. Cl. 634, 648 (2003) (quoting Info. Tech. & Applications 

Corp. v. United States, 51 Fed. Cl. 340, 346 (2001), aff’d, 316 F.3d 1312 (Fed. Cir. 2003)). 

This standard “is highly deferential.” Advanced Data Concepts, Inc. v. United States,

216 F.3d 1054, 1058 (Fed. Cir. 2000). As long as there is “a reasonable basis for the agency’s 

action, the court should stay its hand even though it might, as an original proposition, have 

reached a different conclusion . . . .” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. 

Cir. 1989) (citation omitted). But, if “the agency entirely fail[s] to consider an important aspect 

of the problem [or] offer[s] an explanation for its decision that runs counter to the evidence 

before the agency,” then the resulting action lacks a rational basis and, therefore, is defined as 

“arbitrary and capricious.” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 

1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. 

Co., 463 U.S. 29, 43 (1983)) (internal quotation marks omitted).

B. Judgment Upon The Administrative Record 

Generally, Rule 52.1 limits this Court’s review of an agency’s procurement decision to 

the administrative record. RCFC 52.1; see Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 

1374, 1379 (Fed. Cir. 2009) (“[T]he focal point for judicial review should be the administrative 

record already in existence.”). And so, unlike a summary judgment motion brought pursuant to 

Rule 56, “the existence of genuine issues of material fact does not preclude judgment upon the 

administrative record” under Rule 52.1. Tech. Sys., Inc. v. United States, 98 Fed. Cl. 228, 242 

(2011) (citations omitted); RCFC 56. Rather, the Court’s inquiry is whether, “given all the 
10 

disputed and undisputed facts, a party has met its burden of proof based on the evidence in the 

record.” A&D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131 (2006). 

C. Supplementing The Administrative Record

The United States Court of Appeals for the Federal Circuit held in Axiom Resource 

Management, that the “parties’ ability to supplement the administrative record is limited” and 

that the administrative record should only be supplemented “if the existing record is insufficient 

to permit meaningful review consistent with the APA.” 564 F.3d at 1379-81; see also Caddell 

Constr. Co., Inc. v. United States, 111 Fed. Cl. 49, 93 (2013). In Axiom, the Federal Circuit 

relied upon the Supreme Court’s decision in Camp v. Pitts, which states that “the focal point for 

judicial review should be the administrative record already in existence, not some new record 

made initially in the reviewing court.” 564 F.3d at 1379 (quoting Camp v. Pitts, 411 U.S. 138, 

142 (1973)). This focus is maintained in order to prevent courts from using new evidence to 

“convert the arbitrary and capricious standard into effectively de novo review.” L-3 Commc’ns 

EOTech, Inc. v. United States, 87 Fed. Cl. 656, 671 (2009) (citations omitted). 

This Court has interpreted the Federal Circuit’s directive in Axiom to mean that 

supplementation of the administrative record is permitted to correct mistakes and fill gaps, but is 

not permitted when the documents proffered are unnecessary for an effective review of the 

government’s procurement decision. L-3 Commc'ns EOTech, 87 Fed. Cl. at 672. And so, this 

Court has precluded supplementation of the administrative record with declarations that contain 

“post-hoc contentions of fact and argument.” Id. 

D. Injunctive Relief 

Lastly, under the Court’s bid protest jurisdiction the Court “may award any relief [that it] 

considers proper, including declaratory and injunctive relief . . . .” 28 U.S.C. § 1491(b)(2); see 

also Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009). In deciding 

whether to issue a permanent injunction, the Court “considers: (1) whether . . . the plaintiff has 

succeeded upon the merits of the case; (2) whether the plaintiff will suffer irreparable harm if the 

court withholds injunctive relief; (3) whether the balance of hardships to the respective parties 

favors the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive 

relief.” PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004) (citing Amoco 
11 

Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987) (“The standard for a 

preliminary injunction is essentially the same as for a permanent injunction with the exception 

that the plaintiff must show a likelihood of success on the merits rather than actual success.”)); 

see also Centech Grp., Inc., 554 F.3d at 1037. In this regard, the Federal Circuit has stated that a

plaintiff who cannot demonstrate actual success upon the merits cannot prevail upon a motion for 

permanent injunctive relief. Cf. Nat’l Steel Car, Ltd. v. Canadian Pacific Ry., Ltd., 357 F.3d 

1319, 1325 (Fed. Cir. 2004) (finding that a plaintiff who cannot demonstrate likely success upon 

the merits cannot prevail upon its motion for preliminary injunctive relief). Similarly, this Court 

has also found success upon the merits to be “the most important factor for a court to consider 

when deciding whether to issue injunctive relief.” Dellew Corp. v. United States, 108 Fed. Cl. 

357, 369 (2012) (citing Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1312 (Fed. Cir. 

2007)). While success upon the merits is necessary, however, it is not sufficient alone for a 

plaintiff to establish that it is entitled to injunctive relief. See Contracting, Consulting, Eng’g 

LLC v. United States, 104 Fed. Cl. 334, 353 (2012) (“Although plaintiff’s entitlement to 

injunctive relief depends on its succeeding on the merits, it is not determinative because the three 

equitable factors must be considered, as well.”) (citations omitted). In this regard, the Federal 

Circuit has held that: 

No one factor, taken individually, is necessarily dispositive. If a preliminary 

injunction is granted by the trial court, the weakness of the showing regarding one 

factor may be overborne by the strength of the others. If the injunction is denied, 

the absence of an adequate showing with regard to any one factor may be sufficient, 

given the weight or lack of it assigned the other factors, to justify the denial. 

FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (citations omitted). 

III. LEGAL ANALYSIS

Plaintiffs have moved for judgment upon the administrative record, pursuant to RCFC 

52.1, upon the ground that the VA’s award decisions in these matters were arbitrary, capricious, 

and not in accordance with the terms of the RFP and applicable law. See generally QTC Mot.; 

VES Mot. The government and the defendant-intervenors—LHI, MSLA, VetFed, and QTC3

—

have also moved for judgment upon the administrative record, upon the ground that the VA’s 

 

3 QTC’s argument in this regard is limited to VES’s challenge to the VA’s use of a sample task order that 

took into account base year pricing to evaluate price reasonableness. See generally QTC Def.-Int. Mot.
12 

award decisions were reasonable and in accordance with the plain terms of the RFP. See 

generally Def. Mot.; LHI and MSLA Mot.; VetFed Mot.; QTC Def.-Int. Mot. In addition, the 

government has moved to strike certain documents that QTC has filed in support of its motion 

for judgment upon the administrative record. 

For following reasons, the Court DENIES plaintiffs’ motions for judgment upon the 

administrative record; GRANTS the government’s consolidated cross-motion for judgment upon 

the administrative record; GRANTS the defendant-intervenors’ motions for judgment upon the 

administrative record; and GRANTS the government’s motion to strike.

A. QTC’s Effort To Supplement The Administrative Record Is Unwarranted 

As an initial matter, the Court must grant the government’s motion to strike the 

declaration of Chelsea Taylor Cullum and related calculations, which QTC has filed in support 

of its motion for judgment upon the administrative record, because these documents do not 

correct mistakes or fill gaps in the existing administrative record. See generally Def. Mot. to 

Strike. The government has moved to strike the Cullum declaration and related calculations 

upon the ground that these documents have been created for this litigation and serve only to 

second-guess the VA’s decision-making. Id. at 2. For the reasons discussed below, the Court 

agrees. 

The Federal Circuit held in Axiom Resource Management that a “part[y’s] ability to 

supplement the administrative record is limited,” and that the administrative record should only 

be supplemented “if the existing record is insufficient to permit meaningful review consistent 

with the APA.” 564 F.3d at 1379-81. Given this, “the focal point for judicial review should be 

the administrative record already in existence, not some new record made initially in the 

reviewing court.” Id. at 1379 (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)). And so, 

supplementation of the administrative record is permitted to correct mistakes and fill gaps, but is 

not permitted when the documents proffered are declarations that contain “post-hoc contentions 

of fact and argument.” L-3 Commc'ns EOTech, 87 Fed. Cl. at 672. 

Supplementation of the extensive administrative record in this matter is inappropriate, 

because the documents proffered by QTC were not before the VA at the time of the agency’s 

decision-making and serve only to support QTC’s legal arguments in this litigation. The Cullum 
13 

declaration and related calculations do not explain evidence contained in the administrative 

record, as QTC argues in its opposition to the government’s motion to strike. Pl. Opp. at 1; see 

also Def. Mot. to Strike Reply at 2. Rather, these documents serve to support QTC’s legal 

arguments in this case. Given this, supplementation of the administrative record with these 

documents is inappropriate and unnecessary for meaningful judicial review. And so, the Court 

grants the government’s motion to strike these materials. 

B. Several Of Plaintiffs’ Claims Are Untimely 

With regards to the merits of plaintiffs’ claims, the administrative record shows that 

several of plaintiffs’ claims are untimely. It is well-established that “a party who has the 

opportunity to object to the terms of a government solicitation containing a patent error and fails 

to do so prior to the close of the bidding process waives its ability to raise the same objection 

afterwards . . . in [an] action in the Court of Federal Claims.” Blue & Gold Fleet, L.P. v. United 

States, 492 F.3d 1308, 1315 (Fed. Cir. 2007); see also Bannum, Inc. v. United States, 779 F.3d 

1376, 1380-81 (Fed. Cir. 2015) (A bidder that does not demonstrate that it objected to the terms 

of a solicitation “‘prior to the close of the bidding process,’ . . . ‘waives its ability to raise the 

same objection afterwards in a 1491(b) action.’”) (citations omitted); Triax Pac., Inc. v. West, 

130 F.3d 1469, 1475 (Fed. Cir. 1997) (“The existence of a patent ambiguity in a government 

contract ‘raises the duty of inquiry, regardless of the reasonableness of the contractor’s 

interpretation,’ [and] requires the contractor to inquire . . . as to the true meaning of the contract 

before submitting a bid.”)(quoting Fortec Constructors v. United States, 760 F.2d 1288, 1291 

(Fed.Cir. 1985) (citing Newsom v. United States, 676 F.2d 647, 649 (Ct. Cl. 1982); NVE, Inc. v. 

United States, 121 Fed. Cl. 169, 179 (2015) (“A party who participates in a second round of 

proposal submissions rather than protesting cannot challenge an agency’s decision to reopen 

discussions or reevaluate proposals.”). And so, plaintiffs may not pursue their bid protest claims 

in this litigation, if their claims are based upon a patent error that should have been addressed 

prior to the submission of final proposal revisions. Id. 

1. Plaintiffs Have Waived Their Challenge To The

Calculation Of The Price Benchmarks For The RFP

The administrative record shows that plaintiffs have waived their challenge to the VA’s 

calculation of the price benchmarks for the RFP, because plaintiffs had notice of the VA’s 
14 

methodology for determining the price benchmarks well before submitting their final proposal 

revisions. In their motions for judgment upon the administrative record, QTC and VES allege 

that the VA’s methodology for determining the benchmarks to evaluate price was unreasonable, 

because the evaluation included pricing from offerors that proposed allegedly “high and noncompetitive” prices. QTC Mot. at 13-25; VES Mot. at 17-19; see also QTC Compl. ¶¶ 4-7, 46-

74; VES Am. Compl. ¶¶ 10, 120-24. The record evidence shows, however, that plaintiffs were 

aware that the VA would consider the prices proposed by all offerors to determine the 

benchmarks for price reasonableness long before plaintiffs submitted their final proposal 

revisions. AR at 16215-16, 31571, 31753-55, 31799-800. 

In this regard, the administrative record shows that the contracting officer explained that 

the VA would include the pricing from all offerors to determine the benchmark for price 

reasonableness, almost a month before final proposal revisions were due. Id. at 16214-16, 

17256-395, 31753-55, 31799-800. Plaintiffs’ argument that their claim is, nonetheless, timely, 

because QTC and VES did not know that other offerors would submit high and non-competitive 

price proposals until after award of the subject contracts, is also unavailing. QTC Reply at 3; 

VES Reply at 10. As discussed above, the record evidence shows that the VA informed 

plaintiffs that the agency would include pricing from all offerors to determine the benchmarks 

before final proposal revisions were due. And so, plaintiffs knew that the VA’s methodology for 

determining the price benchmarks could potentially skew the median for the benchmarks, if very 

high, or very low, prices were proposed. AR at 16215-16, 31571, 31753-55, 31799-800. 

Plaintiffs do not dispute that they did not protest the VA’s methodology for determining 

the price benchmarks before submitting their final revised proposals. QTC Reply at 3; VES 

Reply at 10. And so, plaintiffs’ claim challenging the VA’s methodology for determining the 

price benchmarks is untimely and has been waived. See Blue & Gold Fleet, L.P., 492 F.3d at

1315. 

2. Plaintiffs Have Also Waived Their Claim That 

The VA Engaged In Misleading Discussions About Price 

Plaintiffs’ claim that the VA engaged in misleading discussions about price is also 

untimely. QTC Compl. ¶¶ 9, 84-90; VES Am. Compl. ¶¶ 5, 99-104. While there is no dispute 

that the VA engaged in discussions with plaintiffs about low prices prior to the submission of 

final proposal revisions, the administrative record shows that these discussions occurred due to 
15 

the VA’s concerns that low prices could indicate that offerors had improperly changed their 

technical approach, in violation of the terms of the RFP. AR at 19013, 19033, 31759-80. 

Specifically, the record evidence shows that in a letter to offerors, dated August 25, 2016, 

the VA states that:

For each CLIN that is highlighted in BLUE, your proposed price is significantly 

less than what was originally quoted prior to Amendments A00008 and A00009, 

and/or is at least 30% below the low benchmark price . . . Since no revisions to 

Technical Proposals were requested or allowed, we assume that any significant 

price reduction is not the result of a change in your proposed technical approach. 

In order to clarify that your company, in fact, intended such a significant price 

reduction, please confirm that your most recent proposed pricing for these CLINs 

is correct. 

Id. at 19013, 19033 (emphasis supplied). And so, the administrative record shows that the VA 

indicated that the agency was concerned about impermissible changes to offerors’ technical 

approach at the time that these discussions occurred. Id. at 19010-14, 19030-35, 16017-23, 

16148-55, 17256-395, 23158, 23162-63, 31759-60. 

There is also no evidence in the administrative record to indicate that the VA told QTC or 

VES that these offerors could not reduce their respective prices, or that their respective prices 

were unrealistically high. Id. The scope of the VA’s discussions with plaintiffs are within the 

agency’s discretion. Raytheon Co. v. United States, 121 Fed. Cl. 135, 164 (2015). And here, the 

administrative record shows that the VA reasonably exercised its discretion by engaging in 

discussions with plaintiffs to ensure that there were not impermissible changes to plaintiffs’

proposed technical approach.4

 Id.

 

4 The Court is also unpersuaded by VES’s argument that this claim is timely, because, “[n]ot knowing the 

reason for the VA’s conduct, VES had nothing to protest before submission of proposals.” VES Reply at 

6. QTC’s argument that this claim is timely, because the VA’s statements were not “actionable before 

award,” is similarly unavailing. QTC Reply at 23. Any concerns that plaintiffs had about the VA’s 

questions were known to plaintiffs before final proposal revisions were due and should have been raised 

during the procurement process.
16 

Because, plaintiffs do not dispute that they never challenged the VA’s discussions 

regarding price before submitting their final proposal revisions, plaintiffs’ challenge here is

untimely. See Blue & Gold Fleet, L.P., 492 F.3d at 1315. 

3. VES Has Waived Its Challenge To The 

VA’s Methodology For Evaluating Price Reasonableness 

VES has similarly waived its claim that the VA’s methodology for evaluating price 

reasonableness was improper. VES Mot. at 20-25. In this regard, VES argues that the VA’s 

price reasonableness evaluation process was unreasonable, because the RFP requires the VA to 

consider base year, as well as all option year pricing, when evaluating price reasonableness and 

the VA only took base year pricing into consideration. Id. But, the record evidence shows that 

Amendment 8 to the RFP requires that the VA use a sample task order that only took into 

consideration base year pricing, to evaluate price reasonableness. AR at 16213-37, 23168, 

31799. 

While VES is correct that the RFP includes language that states that the total proposed 

price of certain line items will be “added to the total proposed prices for all remaining line items 

to generate an overall total proposed price (including base and all option periods) for each 

Offeror,” this language is contrary to other language contained in Amendment 8, which 

specifically requires that the VA use a sample task order that only takes into consideration base 

year pricing. To the extent that the language that VES relies upon created a patent ambiguity in 

the RFP regarding the requirements for evaluating price reasonableness, VES should have raised 

this concern prior to the submission of final proposal revisions. Id. at 16228, 18942. 

Because VES did not do so, VES has waived this claim. See Blue & Gold Fleet, L.P., 

492 F.3d at 1315.

C. Plaintiffs’ Remaining Claims Are Unsubstantiated

1. Plaintiffs’ Claim That The VA’s Awards To LHI And MSLA 

Violate The RFP, Or Constitute An Unmitigated OCI, Are Unsubstantiated

A plain reading of the RFP also shows that the RFP does not prohibit the VA from 

making same district contract awards to LHI and MSLA, as plaintiffs suggest. AR at 16217-18, 

18932. In this regard, the RFP provides that the Veterans Benefits Administration “intends to 

award contracts to two vendors per District, including Districts 1-5, reserving the right to award 
17 

to a single vendor per District.” Id. at 18932. Section 12.2 of the RFP also provides, in relevant 

part, that: 

For any District in which two Contractors provide MDEs, 70% of the total 

examination request volume will be split equally between Contractor A and 

Contractor B throughout the period of performance . . . Fair Opportunity will be 

provided for each Contractor to receive all or part of the remaining 30% of the 

examination request volume. Specifically, order placement procedures require that 

the 30% of additional examination requests shall be allocated between the 

Contractors based on a continuous, comparative evaluation of each Contractor’s 

timeliness, quality, and capacity to handle the additional volume of work. 

Id. at 18841. 

It is undisputed by the parties that LHI and MSLA share the same corporate parent since

the merger of these two companies in 2016. Id. at 21175-76. It is also undisputed by the parties

that there is no provision in the RFP that prohibits, or even addresses, a same district award to 

such affiliated entities. See Tr., dated June 12, 207, at 28: 14-19, 23-25; 87: 2-11. Given this, 

the record evidence shows that the VA’s decision to award contracts for the same district to LHI 

and MSLA did not violate the terms of the RFP. 

The record evidence also shows that the VA appropriately investigated and mitigated any 

organizational conflict of interest (“OCI”) that could arise from the corporate relationship 

between LHI and MSLA. In this regard, the record evidence shows that the VA became aware 

of a potential OCI related to LHI and MSLA on March 17, 2016, prior to the first award of the 

contracts. AR at 326, 16166, 21175-76. The record evidence also shows that, during its OCI 

investigation, the contracting officer discussed the new corporate relationship between LHI and 

MSLA, sought advice from the VA’s general counsel, and ultimately determined that the awards 

to LHI and MSLA met the VA’s goal of ensuring that an adequate network of providers exists in 

each district to cover the anticipated high volume of work. Id. at 21175-76. The contracting 

officer’s finding in this regard is also supported by the technical proposals of LHI and MSLA, 

which show that the two companies have distinct provider and IT networks. Id. at 12384-85, 

12400, 12971, 12946-75, 16166-67. And so, the record evidence shows that the contracting 

officer reasonably concluded that a single district award to LHI and MSLA would meet the VA’s 

goals and be in accordance with the terms of the RFP. Id. at 21175-76. 
18 

VES’s contention that the VA’s pre-solicitation white paper supports its claim that the 

awards to LHI and MSLA are improper is also belied by the record evidence. Id. at 14439-41; 

VES Reply at 23-25. The subject white paper states, in relevant part, that: 

[During planning for the RFP, the Strategic Acquisition Center—Frederick] was 

instructed that the [Program Management Office] PMO would not accept anything 

less than two vendors per region with an incentive plan to promote reduced exam 

delivery times throughout the contract. The PMO also stated it must have two 

vendors per region so the PMO could move work from one vendor to the other if 

needed due to poor performance or delivery times. 

AR at 14439. While the white paper does address the need for two vendors in each district for 

the subject contracts, the white paper does not prohibit awards in the same district to two 

companies that share a corporate parent. Id. at 14439-41. And so, the white paper has no 

bearing upon whether the VA’s decision to award the subject contracts to LHI and MSLA was 

proper in this case. 

Plaintiffs’ argument that certain statements by MSLA and its parent company support 

their claim is similarly misguided. QTC Mot. at 25-30; VES Mot. at 30-38. Specifically, VES 

relies upon an email from MSLA’s chief executive officer to the contracting officer that states, in 

relevant part, that: “[o]ver time and pending any real or perceived conflicts, [MSLA] would seek 

to enhance the services provided to veterans through the sharing of best practices with LHI and 

appropriate integration activities.” AR at 24976; VES Mot. at 37. While this email clearly

suggests that LHI and MSLA would “integrate their efforts and technology,” the email also 

makes clear that such integration will be “as appropriate” and will be subject to “any real or 

perceived conflicts.” AR at 24975-76. And so, the subject email does not demonstrate that LHI 

and MSLA will not have adequate resources to perform under the subject contracts due to the 

merger of these two companies. 

In sum, the administrative record makes clear that the awards to LHI and MSLA neither 

violate the terms of the RFP, nor constitute an unmitigated OCI. And so, the Court will not set 

aside the VA’s decisions to award the subject contracts to LHI and MSLA. 

2. VES’s Challenge To The VA’s Trade-Off Analysis Is Without Merit 

The record evidence also does not support VES’s challenge to the VA’s trade-off analysis

in connection with this procurement. It is well-established that this Court affords deference to 
19 

the VA’s best value analysis. Galen Med. Assoc., Inc. v. U.S., 369 F.3d 1324, 1330 (Fed. Cir. 

2004). And so, the VA’s best value determination here should not be disturbed, if the VA 

documents its analysis and includes a rationale for any business judgments and trade-offs made 

in reaching that decision. See Blackwater Lodge & Training Center, v. U.S., 86 Fed. Cl. 488, 

514 (2009). 

Here, the record evidence shows that the VA’s best value analysis is well-documented 

and contains a rationale for the VA’s best value decision. Specifically, the record evidence 

shows that the VA conducted its best value analysis in two steps: (1) the VA made an initial 

assumption about the two apparent best value offerors for each district; and (2) the VA validated 

this assumption by comparing the two apparent best value offerors to all other competitive 

offerors. AR at 31834. 

The VA’s best value determination process and outcome is also well-documented in the 

Addendum to the Post-Discussion Business Clearance Memorandum. Id. at 31749-910. This 

Addendum shows that the VA determined the two initial best value offerors for each district 

based upon an evaluation of the RFP’s evaluation factors. Id. at 31835-39, 31851-55, 31867-72, 

31879-82, 31892-96. 

In addition, the Addendum provides the rationale for the VA’s trade-off decision. The 

Addendum provides that, “[t]o determine the best value proposal(s) for each District, analysis 

begins with the Offeror(s) that the Contracting Officer believes to offer the best value, 

considering all evaluation factors and price.” Id. at 31834, 31867, 31878. The Addendum 

further provides that: 

In assessing the relative strengths and weaknesses of the non-price factors, coupled 

with the relative value in price, the Contracting Officer makes an initial assumption 

that [the two initial best value offerors] offer the best value to the government [in 

the relevant districts and] that assumption is validated in the following two sections 

. . . which summarize the overall competitive strength of both [these Offerors] 

compared to the rest of the Offerors.

Id. at 31835, 31851, 31879, 31868, 31892. And so, the administrative record shows that the 

VA’s best value analysis is well-documented in the administrative record and that this analysis is 

based upon a sound agency rationale. 
20 

VES’s argument that it has been somehow prejudiced by the VA’s best value analysis is 

also unsupported by the record evidence. VES Am. Compl. ¶¶ 117-18; see also VES Mot. at 39-

40. VES argues that it could have been awarded the subject contracts, but for the VA’s alleged 

errors in conducting the trade-off analysis. But, the administrative record shows that VES’s offer 

was compared to the two initial best value offerors for each district in which VES actually 

competed for award. AR at 31841-42, 31847-48, 31857-58, 31863-64, 31873-74, 31875-77, 

31885-86, 31889-90, 31897-98, 31902-03. The administrative record also shows that, based 

upon these comparisons, the VA determined that VES did not offer the best value to the 

government in any of those districts. Id. And so, the record evidence shows that the VA fully 

considered VES’s proposal, in light of the best value offerors, and the agency reasonably 

concluded that VES did not offer the best value to the government. See Blackwater Lodge & 

Training Center, 86 Fed. Cl. at 514. 

3. QTC’s Claim That The VA Mislead QTC 

Regarding A Possible Bridge Contract Is Unsubstantiated

As a final matter, QTC’s claim that the VA engaged in misleading discussions regarding 

a potential bridge contract is similarly unsubstantiated by the record evidence. While the 

government does not dispute that the VA engaged in discussions with QTC about a potential 

bridge contract on August 30, 2016, the record evidence shows that the VA also told QTC—and 

other offerors—that offerors must still submit final proposal revisions by the established due 

date. AR at 16153, 19059. And so, the Court does not find—and QTC does not point to—any 

evidence in the administrative record to substantiate QTC’s claim that the VA’s discussions in 

this regard were misleading. 

More importantly, even if the VA’s discussions could be considered misleading, there is 

also no evidence in the administrative record to show that QTC has been prejudiced by this error. 

Rather, QTC does nothing more than speculate about how a potential bridge contract would have 

impacted the price proposed in its final proposal revisions. QTC Compl. ¶¶ 9, 91-94; see also

QTC Mot. at 34-36. And so, QTC simply has not substantiated this claim.

D. Injunctive Relief Is Unwarranted

Lastly, because plaintiffs have not succeeded upon the merits of their claims, neither 

plaintiff is entitled to the injunctive relief that it seeks in this matter. In this action, QTC requests 
21 

that the Court direct the VA to conduct discussions and re-evaluate revised proposals, in 

accordance with the terms of RFP and applicable law. QTC Compl. at Prayer for Relief. VES 

similarly requests that the Court permanently enjoin the transition and performance of the 

contracts at issue and require the VA to reopen the competition. VES Am. Compl. ¶ 124. But, it 

is well-established that a plaintiff who cannot demonstrate actual success upon the merits cannot 

prevail upon a motion for permanent injunctive relief. Cf. Nat’l Steel Car, Ltd. v. Canadian 

Pacific Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir. 2004) (finding that a plaintiff who cannot 

demonstrate likely success upon the merits cannot prevail upon its motion for preliminary 

injunctive relief). Because neither QTC nor VES have prevailed upon the merits of their claims 

here, plaintiffs are not entitled to the requested injunctive relief. 

IV. CONCLUSION

In sum, plaintiffs’ bid protest claims in this matter are either untimely, or unsupported by 

the record evidence. Indeed, the record evidence in this case shows that the VA’s award 

decisions were reasonable and in accordance with the terms of the RFP and applicable law. 

While plaintiffs’ disappointment with these award decisions is understandable, there is no 

evidentiary basis for the Court to step in and set aside the VA’s award decisions. 

In addition, QTC’s efforts to supplement the extensive administrative record in this case 

with the declaration of Chelsea Taylor Cullum and related calculations is unwarranted, because 

these materials serve only to bolster QTC’s litigation position. 

And so, for all of the foregoing reasons, the Court: 

1. DENIES plaintiffs’ motions for judgment upon the administrative record; 

2. GRANTS the government’s consolidated cross-motion for judgment upon the 

administrative record; 

3. GRANTS the defendant- intervenors’ motions for judgment upon the administrative 

record; 

4. GRANTS the government’s motion to strike; and 

5. DENIES, as moot, plaintiffs’ motions for clarification.

Judgment shall be entered accordingly. 
22 

Each party shall bear its own costs. 

Some of the information contained in this Memorandum Opinion and Order may be 

considered protected information subject to the Protective Orders entered in these matters on 

January 24, 2017. This Memorandum Opinion and Order shall therefore be filed under seal. 

The parties shall review the Memorandum Opinion and Order to determine whether, in their 

view, any information should be redacted in accordance with the terms of the Protective Orders 

prior to publication. The parties shall FILE a joint status report identifying the information, if 

any, that they contend should be redacted, together with an explanation of the basis for each 

proposed redaction on or before July 24, 2017. 

IT IS SO ORDERED.

s/ Lydia Kay Griggsby 

LYDIA KAY GRIGGSBY

Judge