In the United States Court of Federal Claims

No. 15-498C

(Originally filed: August 14, 2015)

(Re-filed: August 21, 2015)*

* * * * * * * * * * * * * * * * * * * * * *

ACC CONSTRUCTION CO., INC.,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

* * * * * * * * * * * * * * * * * * * * * *

Bid Protest; Two-Phase

P r o c u r eme n t ; Un st a t e d

Evaluation Criteria; 10 U.S.C.

§§ 2305, 2305a; FAR 15.305;

Lack of Prejudice.

Karl Frederick Dix, Atlanta, GA for plaintiff with whom was Stephen

J. Kelleher, Washington, DC, of counsel.

EricaA.Hixon,CivilDivision,Department ofJustice, Washington, DC,

with whom were Benjamin C. Mizer, Principle Deputy Assistant Attorney

General, Robert E. Kirschman, Jr., Director, Douglas K. Mickle, Assistant

Director, and Tarrah M. Beavin, of counsel with the U.S. Army Corps of

Engineers, for defendant.

_______________

OPINION

_______________

BRUGGINK, Judge.

* This opinion was originally filed under seal. The parties were directed

to confer and propose redactions. The court adopted the parties’ suggested

redactions, removed the information, and inserted brackets to replace the

redacted content. The opinion is now prepared for release. 
This is a pre-award, post-solicitation protest of the United States Army

Corps of Engineers’s (the “agency”) decision to exclude plaintiff from

participation in Phase II of the competitive bidding process for the design and

construction of the Army Reserve Center Complex at the Aberdeen Proving

Ground in Maryland (“Aberdeen Complex”). Currently before the court are

the parties’ cross-motions for judgment on the administrative record pursuant

to Rule 52.1 of the Rules of the United States Court of Federal Claims

(“RCFC”). See RCFC 52.1(c). Plaintiff also filed a motion for leave to

supplement the administrative record with two affidavits from its employees,

several documents pertaining to the agency’s initial and unsuccessful attempt

to compete this procurement through small businesses, and a design

specifications sheet. Defendant filed a motion to correct the administrative

record, agreeing with plaintiff that the design specifications sheet should be

included in the record. The motions are fully briefed, and we heard oral

argument on August 5, 2015. For reasons set out below, we grant in part and

deny in part plaintiff’s motion to supplement the administrative record; we

grant defendant’s motion to correct the administrative record; we deny

plaintiff’s motion for judgment on the administrative record; and we grant

defendant’s cross-motion. 

BACKGROUND1

On February 13, 2015, the agency’s Louisville District issued Request

for Proposal (“RFP”) No. W912QR-15-R-0014 (the “solicitation”), requesting

bids for the design and construction of an Army Reserve Center Complex at

the Aberdeen Proving Ground in Maryland. Administrative Record (“AR”)

145-501. The Aberdeen Complex will be comprised of a training building, a

maintenance building (“OMS”), and an unheated storage building (“UHS”),

and will have the capacity to house eleven Army Reserve units. 

Prior to issuance of the current solicitation, the agency attempted to

designate this project as a small business set-aside. The agency published a

market survey requesting small businesses to submit descriptions of their past

projects that were similar in scope to the proposed Aberdeen Complex. The

survey specifically stated that projects considered to be similar in scope are

those thatinvolved “design and construction of multiple buildings that include:

1

 The facts are drawn from the administrative record.

2
army reserve complexes, armed forces training complexes, office complexes,

education facilities, and multi-story multipurpose complexes.” AR 5.

The agency received a number of responses to this survey. One

response that the agencyconsidered acceptable was froma small business joint

venture, [ ], which submitted past performance examples, primarily

consisting of pre-engineered metal buildings. AR 6-7, 54. Due to the interest

generated, the agency issued the first solicitation for the Aberdeen Complex,

RFP No. W912QR-14-R-0018, as a small business set-aside. After receiving

proposals from small businesses, however, the agency determined that the setaside was unworkable due to its inability to generate an acceptable bid price. 

Later, in preparing to advertise the project as unrestricted, the agency noted

that the “current scope was not modified from the prior acquisition attempt.” 

AR 59.

In the pre-solicitation notice for the second solicitation, the agency

described several construction requirements for the Aberdeen buildings:

“[P]ermanent construction with reinforced concrete foundations, concrete floor

slabs, structural steel frames, masonry veneer walls, standing seam metal roof,

Heating, Ventilation, and Air Conditioning (HVAC), plumbing, mechanical

systems, security systems, and electrical systems.” AR 69. This language is

identical to that contained in the sources sought notice issued before the small

business market survey. 

For the unrestricted solicitation, the agency decided to utilize a twophase procurement method to identify the contractor that would bring the most

value to the agency. Under Phase I, offerors submitted a limited proposal

comprised of past performance, technical, and pro forma information. The

solicitation asked the offerors to list in the past performance section three

projects that were similar in size and scope to the Aberdeen Complex. AR

153. The Aberdeen Complex is roughly 78,004 square feet in size. Projects

similar in size are those that were “a minimum of 45,000 square feet.” Id. The

Aberdeen Complex will require the construction of a training building, a

maintenance building, an unheated storage building, a vehicle wash platform,

and other site improvements, such that the completed center is capable of

supporting Army Reserve units and their training missions. 

The solicitation defined a project “similar in scope” as one that

involved “NEW CONSTRUCTION of multi-story building facilities such as

training complexes, office complexes, educationalfacilities, andmulti-purpose

3
complexes.” Id. In the technical section, offerors were required to “[p]rovide

a management plan for the project that describes how [their] labor, resources,

designers, subcontractors and material suppliers will be coordinated and used

to ensure successful completion of the project.” AR 155. The management

plan had to “demonstrate a clear understanding of the work and an ability to

coordinate resources to ensure successful pursuit of the work.” Id. Finally,

offerors were requested to include several other documents regarding their

bonding and financial capabilities within the pro forma section. 

The agency received [ ] offers in response to the solicitation. A Source

Selection Evaluation Board (“SSEB”) was created to review and rate the offers

so that up to five offerors could be selected to advance to Phase II. The SSEB

applied several adjectival rating criteria in making its determinations. Under

past performance, the SSEB evaluated the projects listed by the offeror for

relevance and confidence. For relevance, the SSEB looked to the following

table:

Rating Definition

Very Relevant

Present/past performance effort involved

essentially the same scope and magnitude of

effort and complexities this solicitation

requires.

Relevant

Present/past performance effort involved

similar scope and magnitude of effort and

complexities this solicitation requires.

Somewhat Relevant

Present/past performance effort involved

some of the scope and magnitude of effort

and complexities this solicitation requires.

Not Relevant

Present/past performance effort involved

little or none of the scope and magnitude of

effort and complexities this solicitation

requires.

AR 151. Based on the relevance of each of the listed projects, the SSEB then

assigned an overall confidence rating, reflecting whether the SSEB believed

the offeror could complete the Aberdeen Complex project and characterizing

4
the offeror’s overall past performance rating. These ratings are encapsulated

in the following table: 

Rating Definition

Substantial Confidence

Based on the offeror’s recent/relevant

performance record, the Government

has a high expectation that the offeror

will successfully perform the required

effort.

Satisfactory Confidence

Based on the offeror’s recent/relevant

performance record, the Government

has a reasonable expectation that the

offeror will successfully perform the

required effort.

Limited Confidence

Based on the offeror’s recent/relevant

performance record, the Government

has a low expectation that the offeror

will successfully perform the required

effort.

No Confidence

Based on the offeror’s recent/relevant

performance record, the Government

has no expectation that the offeror will

successfully performthe required effort.

Unknown Confidence (Neutral)

No recent/relevant performance record

is available or the offeror’s performance

record is so sparse that no meaningful

confidence assessment rating can be

reasonably assigned.

Id. 

Under the technical section, the SSEB evaluated the offeror’s

management plan by identifying any strengths, weaknesses, or deficiencies.

AR 152. A strength is defined as an “aspect of an offeror’s proposal that has

merit or exceeds specified performance or capability requirements in a way

that will be advantageous to the Government during contract performance.” 

Id. A weakness is defined as a “flaw in the proposal that increases the risk of

5
unsuccessful contract performance.” Id. Adeficiencyis defined as a “material

failure of a proposal to meet a Government requirement or a combination of

significant weaknesses in a proposal that increases the risk of unsuccessful

contract performance to an unacceptable level.” Id. Depending on the

outcome of this evaluation, the SSEB would rate the management plan in

accordance with this table: 

Adjectival Rating Definition

Outstanding

Proposal meets requirements and indicates an

exceptional approach and understanding of

the requirements. Strengths far outweigh any

weaknesses. Risk of unsuccessful

performance is very low.

Good

Proposal meets requirements and indicates a

thorough approach and understanding of the

requirements. Proposal contains strengths

which outweigh any weaknesses. Risk of

unsuccessful performance is low.

Acceptable

Proposal meets requirements and indicates an

adequate approach and understanding of the

requirements. Strengths and weaknesses are

offsetting or will have little or no impact on

contract performance. Risk of unsuccessful

performance is no worse than moderate.

Marginal

Proposal does not clearly meet requirements

and has not demonstrated an adequate

approach and understanding of the

requirements. The proposal has one or more

weaknesses which are not offset by strengths.

Risk of unsuccessful contract performance is

high.

Unacceptable Proposal does not meet requirements and

contains one or more deficiencies and is

unawardable. 

Id. The five offerors who received the best past performance and technical

ratings would advance to Phase II of the procurement process. AR 148. 

6
In Phase II, the five offerors were to submit a proposal comprised of

technical information, schedule, small business participation, and price and pro

forma sections. The SSEB then will review the proposals under another set of

criteria before the contract is awarded by the Source Selection Authority. 

One of the key issues raised in this protest is what the solicitation says

with respect to the use of pre-engineered buildings. Plaintiff points out that

section 00116, which controls the preparation of the Phase I submissions,

makes no specific reference to the use of pre-engineered buildings. The

Statement of Work section (“SOW”), however, which controls the ultimate

work which the agency wishes to have performed, does mention preengineeredmetal buildings. The general construction requirements subsection

of the SOW states: “A pre-engineered building is not allowed for the Training

Building or OMS. Pre-engineered buildings are typically used only for UHS

buildings.” AR 451. The structural design subsection also provides the

following: “Unless otherwise accepted by the Government, the following

systems shall NOT be permitted for the Training Center and Vehicle

Maintenance Shops structures: Pre-engineered metal buildings.” AR 465. 

A limited allowance for pre-engineered buildings is made by reference

to the Design Guide for United States ArmyReserve Facilities, UFC 4-171-05

(“Design Guide”), where bidders could read that “[t]he unheated storage

building serves only one function: the storage of operational equipment that

requires no temperature or humidity control. A pre-engineered metal building

system is frequently used to house this function.” AR 1431. It also notes that

UHS buildings “are typically simple pre-engineered metal buildings.” AR

1432.

The material describing the agency’s requirements for the Aberdeen

Complex, therefore, made it clear that pre-engineered buildings were not

acceptable for the principal buildings, unless a specific exception was made. 

While Section 00116, which lays out the requirements for Phase I

submissions and evaluation criteria, does not specifically direct the reader to

other portions of the solicitation, such as the SOW or the Design Guide, it does

indicate that “Phase I proposals will be evaluated in accordance with the

factors and subfactors below . . . .” AR 150. One of the requirements, as

mentioned above, was the submission of three projects similar in size and

scope to the project at issue. Although the limitation in the SOW regarding

pre-engineered buildings is not specifically mentioned at that point, the

7
evaluation criteria for past performance projects repeated the following

explanation: “Present/past performance effort involved . . . the same scope

and magnitude of effort and complexities this solicitation requires,” with the

wording varying for each rating, depending on how close the project was to the

solicitation. See AR 151 (emphasis supplied). The evaluation of past projects

is thus directly connected to the solicitation as a whole.

Plaintiff submitted its offer to the agency in response to the solicitation

on March 17, 2015. Plaintiff listed three projects it had managed as the prime

contractor that were completed within the previous five years and which

exceeded the 45,000 square feet minimum size requirement of the Aberdeen

Complex. The first two were [ 

 

 ]. A majority of the buildings

for these two projects were constructed as pre-engineered metal buildings. 

[ 

]. There is no

mention of pre-engineered metal buildings in the description of this project. 

All three projects involved construction of a training complex, office complex,

educational facilities, and a multi-purpose complex. Plaintiff received

favorable reviews following the completion of each of these projects. Plaintiff

also submitted a management plan, as required by the solicitation. The

management plan details plaintiff’s approach to selecting subcontractors,

coordinating the various subcontractors during the project, supervising the

work of the subcontractors, and interacting with plaintiff’s partner company,

Gensler. Finally, plaintiff submitted the required documents in the pro forma

section. 

On March 23, 2015, the SSEB convened to review the 20 proposals that

the agency received. After reviewing plaintiff’s proposal, the SSEB deemed

plaintiff’s first two past performance submissions not relevant. Although they

met the solicitation’s size specifications, the SSEB noted as to each that the

project was “NOT considered similar in scope because it was a pre-engineered

metal building; which doesn’t meet the complexity of the solicited project. .

. . This project included little or none of the scope and magnitude of effort of

the proposed project and is therefore considered Not Relevant.” AR 1255. 

The third project was deemed very relevant. Based on all three assessments,

the SSEB assigned plaintiff a confidence rating ofsatisfactoryconfidence. AR

1254-55. As for plaintiff’s management plan, the SSEB did not identify any

strengths or deficiencies. AR 1258. However, it did note one weakness: “The

8
[ 

].” Id. Accordingly, the SSEB rated plaintiff’s management

plan as acceptable. Id. 

Ultimately, plaintiff was not selected to advance to Phase II of the

procurement process. The five offerors chosen to advance were [ 

 ]; [ ]; [ 

]; [ ]; and [ ]. AR 1347. The

following is a brief summary of the ratings these five companies earned on

their proposals. 

[ ]

Two of [ ] comparable past performance projects were deemed

relevant, and the other was very relevant. The SSEB gave [ ] a

substantial confidence rating for past performance. The SSEB also identified

six strengths, no weaknesses, and no deficiencies in [ ] management

plan, earning [ ] a rating of outstanding. 

[ ]

Two of [ ] listed projects were deemed very relevant, while the

other was listed as relevant. This earned [ ] a substantial confidence

rating for its past performance. As for [ ] management plan, the SSEB

identified two strengths, no weaknesses, and no deficiencies, resulting in a

technical rating of good. 

[ ]

All three of [ ] past projects were rated as very relevant, leading

to a past performance rating of substantial confidence. The SSEB listed four

strengths, no weaknesses, and no deficiencies in [ ] management plan. 

This earned [ ] a technical rating of outstanding. 

[ ]

Two of [ ] projects were deemed very relevant, and one was deemed

somewhat relevant. The SSEB rated [ ] past performance with substantial

confidence. [ ] management plan contained three identified strengths, one

weakness, and no deficiencies, leading to a technical rating of good. 

9
[ ]

[ ] comparable projects received ratings, respectively, of

somewhat relevant, relevant, and very relevant. The SSEB assigned an overall

substantial confidence rating to [ ] past performance. The SSEB

identified four strengths, no weaknesses, and no deficiencies in [ ]

management plan, earning it a technical rating of good. 

Of the fifteen projects listed in the five offerors’s past performance

sections, only three mention use of pre-engineered metal buildings. Two of [

] projects contained several pre-engineered metal structures, but they

were not the primary buildings constructed during the project. Similarly, one

of [ ] projects mentions pre-engineered metal structures, but notes that

these were only storage facilities that were ancillary to the primary building

constructed. Unlike plaintiff’s projects, therefore, [ ] and [ ] past

performance did not primarily consist of pre-engineered metal buildings. 

Plaintiff was one of fifteen offerors not invited to participate in Phase

II by the agency’s contracting officer, [ ]. [ ] of these

unsuccessful offerors had the same past performance rating as plaintiff,

satisfactory confidence, but received a higher rating of either good or

outstanding for their management plans. 

Plaintiff requested a debriefing by the agency. In response to plaintiff’s

question regarding why pre-engineered metal buildings do not meet the

solicitation’s requirements, the agency responded: “Pre-engineered buildings

do not meet the proposed complexity of the project. The project description

is listed within the Solicitation, specifically the Section 00116 and the

Specifications provided with the Solicitation documents.” AR 1351. 

On May 1, 2015, plaintiff filed a protest with the Government

Accountability Office (“GAO”). Plaintiff then informed the GAO that it

intended to file a complaint with this court concerning the same protest.

Pursuant to 4 C.F.R. § 21.11 (2015), the GAO dismissed the protest after

plaintiff filed its complaint here on May 14, 2015. 

DISCUSSION

The Tucker Act gives this court jurisdiction to “render judgment on an

action by an interested party objecting to a solicitation by a Federal agency for

10
bids or proposals for a proposed contract or to a proposed award . . . or any

alleged violation of statute or regulation in connection with a procurement or

a proposed procurement.” 28 U.S.C. § 1491(b)(1) (2012). Plaintiff is an

“interested party” because it is a prospective bidder “whose direct economic

interest would be affected by the award of the contract.” Am. Fed’n of Gov’t

Emps., ALF-CIO v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001)

(quoting 31 U.S.C. § 3551(2)(a) (2012)). The agency’s decision to exclude

plaintiff from Phase II was made “in connection with” a proposed

procurement, and plaintiff alleges that the decision was made in violation of

applicable statutes and regulations. We therefore have jurisdiction.

I. Supplementation of the Administrative Record

On June 12, 2015, plaintiff filed a motion to supplement the

administrative record with several documents: two affidavits by ACC

employees; the pre-solicitation notice and the solicitation that the agency

issued as part of its efforts to pursue the Aberdeen Complex as a small

business set-aside; and an excerpt of the project’s specifications that is

referenced in the solicitation but not included in the administrative record. 

During oral argument, plaintiff dropped its request to add the two affidavits,

and we agree, in any event, that they are not appropriately included. See

Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379-81 (Fed. Cir.

2009). Defendant agrees with plaintiff that the design specifications sheet

referenced in the solicitation should be included and accordingly moved

independently to have this document added to the administrative record and

assigned it a record reference. See AR 1431-32. During oral argument, the

government also conceded that the solicitation documents from the previous

small business set-aside should have been properly included in the

administrative record. 

We agree with the parties that the design guidelines, which are

referenced in the current solicitation, along with the previous Aberdeen

Complex solicitation and pre-solicitation notice for the failed small business

set-aside are appropriately included in the administrative record. They were

before the agency at the time of its decision and they explain the terminology

and specifications used by the agency.

11
II. The Cross-Motions for Judgment on the Administrative Record

Plaintiff alleges that the agencyviolated the Competition in Contracting

Act (“CICA”), Pub. L. No. 98-369, 98 Stat. 494 (1984) (codified in part as

amended at 10 U.S.C. § 2305 (2012)), and provisions of the Federal

Acquisition Regulation (“FAR”). The relevant portions of CICA state:

(c) Procedures described. Two-phase selection procedures

consist of the following:

(1) The agency develops . . . a scope of work statement

for inclusion in the solicitation that defines the project

and provides prospective offerors with sufficient

information regarding the Government’s requirements

(which may include criteria and preliminary design,

budget parameters, and schedule or delivery

requirements) to enable the offerors to submit proposals

which meet the Government’s needs. . . . .

(2) The contracting officer solicits phase-one proposals

that

(A) include information on the offeror’s

(i) technical approach; and

(ii) technical qualifications; and

(B) do not include

(i) detailed design information; or

(ii) cost or price information.

(3) The evaluation factors to be used in evaluating phaseone proposals are stated in the solicitation and include

specialized experience and technical competence,

capability to perform, past performance of the offeror’s

team (including the architect-engineer and construction

members of the team) and other appropriate factors . . .

12
. The agency evaluates phase-one proposals on the basis

of the phase-one evaluation factors set forth in the

solicitation. 

10 U.S.C. § 2305a(c)(1)-(3) (emphasis supplied). CICA also mandates that

“[t]he head of an agency shall evaluate sealed bids and competitive proposals

and make an award based solely on the factors specified in the solicitation.”

§ 2305(b)(1). 

Furthermore, the applicable provisions of the FAR state: “An agency

shall evaluate competitive proposals and then assess their relative qualities

solely on the factors and subfactors specified in the solicitation.” 48 C.F.R. §

15.305(a). Under the past performance evaluation section, the regulation notes

that the “source selection authority shall determine the relevance of similar

past performance information.” Id. § 15.305(a)(2)(ii). 

Both CICA and the FAR require that an agency’s procurement

decisions be based solely on the factors delineated in the solicitation. 

Microdyne Outsourcing, Inc. v. United States, 72 Fed. Cl. 694, 699 (2006). 

Nonetheless, the “solicitation need not identify each element to be considered

by the agency during the course of the evaluation where such element is

intrinsic to the stated factors.” NEQ, LLC v. United States, 88 Fed. Cl. 38, 48

(2009) (internal quotation and citation omitted). Thus, “an agency still has

‘great discretion in determining the scope of an evaluation factor.’” Banknote

Corp. of Am., Inc. v. United States, 56 Fed. Cl. 377, 386 (2003) (quoting

Forestry Surveys & Data v. United States, 44 Fed. Cl. 493, 499 (1999)). For

a protestor to successfully claim that an agency relied on an unstated factor, it

must show that the agency used a “significantly different basis” than the stated

factors when evaluating the proposal, which resulted in prejudice to the

protestor. NEQ, 88 Fed. Cl. at 48.

A. Evaluation Criteria, Complexity, and Pre-engineered Buildings

In its motion, plaintiff argues that the agency exceeded its authority

under CICA and the FAR when the SSEB assigned no better than a

satisfactory confidence rating, in part because it concluded that two of

plaintiff’s past history submissions did not demonstrate sufficient complexity

due to their reliance on construction of pre-engineered buildings. The agency

characterized these two projects as not relevant experience. While plaintiff

acknowledges the discouragement of pre-engineered metal buildings in the

13
SOW, it argues that the SSEB could not measure relevance of past experience

against the SOW, but should have limited its consideration to the literal

application of the evaluation criteria for Phase I, listed in section 00116 of the

solicitation, namely, size and scope. Plaintiff argues that what the agency did

amounts to the application of an undisclosed evaluation term, namely

“complexity,” as measured by whether or not a building would be constructed

using pre-engineering methods. 

Plaintiff argues in the alternative that, even if the SSEB was entitled to

look outside of section 00116 when evaluating the past performance projects,

it should have recognized that the Design Guide’s characterization of preengineered buildings as simple structures without climate control was

incorrect. Plaintiff argues that this is readily apparent from the description of

its prior pre-engineered metal building projects, which plaintiff contends were

demonstrably as complex as what the agency wanted. Plaintiff asserts that the

agency already utilized this approach when, under the first solicitation, it

characterized [ ] past performance projects as acceptable even

though they were primarily pre-engineered buildings. According to plaintiff,

it would be inconsistent for the agency to categorically dismiss pre-engineered

metal buildings as less complex when it considered them relevant in an earlier

procurement for the same project.

In its cross-motion, defendant argues that the factor “similar in scope”

would self-evidently include a comparison of plaintiff’s past performance

projects with the SOW, which presumptively prohibits pre-engineered metal

structures for the two main buildings. We agree. Past performance as applied

in Phase I cannot be read in isolation from the rest of the solicitation. The

adjectival rating system for past performance obviously assumes relevance in

connection with the work, as set out in the SOW, that the agency wants done. 

This is made explicit in the rating terms, which each include a reference to the

solicitation generally. This is not superfluous. The Aberdeen Complex SOW

explicitly prohibits pre-engineered metal structures for the OMS and Training

buildings. AR 451. 

Plaintiff points out that the prohibition of pre-engineered buildings was

not absolute; the agency retained the discretion to permit pre-engineered metal

structures, presumably if asked by a bidder. But there is nothing improper

about the presumptive disallowance. Additionally, the agency’s earlier

acceptance of pre-engineered buildings to establish past performance was

expressed during the market survey period conducted approximatelytwo years

14
ago with the aim of awarding the work to a small business. The agency is

entitled to refine its preferences as the procurement shifted from a small

business set-aside to an unrestricted best value trade-off firm fixed price

contract. See SDS Int’l v. United States, 48 Fed. Cl. 759, 772 (2001). We will

not second-guess the agency’s preferences regarding pre-engineered metal

buildings, meaning that there was a disconnect between plaintiff’s past

performance and what the agency decided it wants.

B. The Management Plan and Lack of Prejudice

Plaintiff also takes issue with the agency’s evaluation of its

management plan. The agency concluded that ACC’s management plan was

not specifically tailored to the Aberdeen Complex and therefore assigned it a

weakness. Plaintiff, however, asserts that the agency applied an unstated

evaluation criteria because nothing in the solicitation required the management

plan to be specifically tailored to the Aberdeen Complex. Additionally,

plaintiff avers that [ ] management plan was not specifically tailored to

the Aberdeen project either, but it was not assigned a weakness for the lack of

specificity. Instead, that offeror ultimately received the rating of outstanding

for its technical approach. Plaintiff argues that, if the agency had been

consistent in docking offerors for failure to tailor the management plan, then

ACC should not have received a weakness, which would have resulted,

according to plaintiff, in an overall rating of good or outstanding for its

technical approach. 

As defendant points out, however, if plaintiff’s past performance

evaluation does not change, it has a serious problem in obtaining relief based

solely on critiquing the SSEB’s evaluation of other bidder’s management

plans. 

The SSEB did not identify a deficiency in plaintiff’s management plan;

it only identified a weakness based on the lack of specificity.

2

In other words,

2 The definitions of weakness and deficiency appear in the FAR, 48

C.F.R. § 15.001, which is incorporated into the solicitation by section 00116. 

Weakness is defined as a “flaw in the proposal that increases the risk of

unsuccessful contract performance.” AR 152. On the other hand, deficiency

is defined as a “material failure of a proposal to meet a Government

(continued...)

15
the SSEB did not fault plaintiff’s plan for failing to comply with the

solicitation’s requirements; rather, the SSEB concluded that the plan met the

minimum requirements but contained this single weakness. This is why

plaintiff ultimately received an acceptable rating. As defendant notes, even

though [ ] management plan was not specifically tailored to the

Aberdeen Complex, it merited six strengths, which set it apart from ACC’s

technical plan. The SSEB assigned plaintiff’s management plan no strengths

and one weakness for failing to tailor the plan to the Aberdeen Complex

project. Because there were no identified deficiencies, the SSEB concluded

that plaintiff’s plan met the minimum requirements. We have no basis for

overturning the agency’s considered judgment in that respect. 

More importantly, plaintiff cannot establish prejudice. As noted above,

a protestor cannot be successful by merely showing a violation of the

applicable statutes and regulations; it must also demonstrate that the violation

resulted in prejudice, that there was a “substantial chance” the protestor would

have received the award but for the violation. Bannum, Inc. v. United States,

404 F.3d 1346, 1353 (Fed. Cir. 2005). Even if plaintiff’s management plan

was not deemed to have a weakness, it still would have merited no higher than

an acceptable rating because the SSEB did not rate any offeror’s management

plan as good unless it identified at least two strengths. To merit a rating of

good, the plan must contain “strengths which outweigh any weaknesses.” AR

152. The SSEB did not identify any strengths in plaintiff’s plan, and plaintiff

does not argue that the SSEB should have done so. Accordingly, it is

reasonable to assume that the plan would have been rated acceptable, which

is defined as a plan where “[s]trengths and weaknesses are offsetting.” Id.

Furthermore, all of the offerors who received a technical rating of good had at

least two identified strengths. 

Without a technical rating of good and a past performance rating of

substantial confidence, it is extremely unlikely that plaintiff would have been

invited to advance to Phase II. The solicitation indicates that the agency will

select five offerors to advance to Phase II. Plaintiff received a rating of

satisfactory confidence for its past performance and an acceptable technical

2

(...continued)

requirement or a combination of significant weaknesses in a proposal that

increases the risk of unsuccessful contract performance to an unacceptable

level.” Id. 

16
rating. All five of the offerors who advanced received a technical rating of

good or higher. The agency also expressed substantial confidence in the past

performance of the five offerors who were chosen to compete in Phase II. 

Furthermore, there were [ ] offerors who did not advance to Phase II who

received better ratings than plaintiff. See AR 1348. Plaintiff has supplied us

with no reason to think that it would have fared any better than these [ ]

unsuccessful offerors had it received a higher past performance rating. 

Without prevailing on both issues, the relevancy of pre-engineered buildings

in the evaluation of past performance and the application of an unstated

evaluation criteria to plaintiff’s management plan, ACC is unable to show that

it could have scored high enough to be included in the final five. 

C. Injunctive Relief 

Plaintiff has failed to establish that the agency violated the law or was

otherwise arbitraryor capricious in its decision-making to plaintiff’s prejudice,

and we, therefore, find it unnecessary to reach the issue of injunctive relief. 

CONCLUSION

For the reasons stated above, we grant in part and deny in part

plaintiff’s motion to supplement the administrative record, and we grant

defendant’s motion to correct the administrative record. Furthermore, we

conclude that the agency exercised reasonable judgment and complied with

applicable statutes and regulations when it excluded plaintiff from Phase II of

the procurement process. We therefore deny plaintiff’s motion for judgment

on the administrative record and grant defendant’s cross-motion. The Clerk 

is directed to enter judgment accordingly. No costs.

s/ Eric G. Bruggink 

ERIC G. BRUGGINK

Judge

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