# In th e United States Court of Federal Cl aims

No. 15-498C ( Originally

f iled: August 14, 2015) (Re-f iled: August 21, 2015) *

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

ACC CONSTRUCTION CO., INC.,

Plaintiff

,

v.

THE UNITED STATES,

Defendant

.

* * * * * * * * * * * * * * * * * * * * * * B i d P r o t e s t ; T w o

- P h a s e P r o c u r e m e n t ; U n s t a t e d
Evaluation Crite r ia; 10 U.S.C. §§ 2305, 230 5 a; FAR 15.305;
Lack of Prejudice.

Karl Frederick Dix

, Atlanta, GA f or plaintif f with whom was Stephen
J. Kelleher , W ashington, DC, of counsel.

Er i c a A

. H

i x o n , C i v i l D i v i s i o n , D e p artm ent of Justice, W ashington, DC,
with whom were Benjamin C. M izer

, Principle Deputy A ssist a n t Attorney General, Robert E. Kirschman, Jr.

, D irector, Douglas K

. Mickle

, A s s i stant Director, and Tarrah M. Beavin

, of c o u n s el with the U.S. Arm y Corps of Engineers, f

or def endant.

_______________

OPINION

_______________

BRUGGINK, Judge

.

* This opinion was originally f iled u nder seal. The parties were directed

to conf er and propo s e redactions. The court a dopted t he p arties’ suggested redactions, rem oved the inf orm a tion, and inserted b rackets to replace the redacted content. The opinion is now prepared f or release.This is a pre-award, post-solicitation protest of the United States Arm y

Corps of Engineers’s (the “agency ”) decision to exc l u d e plaintif f f rom participation in Phase II of the com petitive bidding process f or the design and

c onstruction of the Arm y Reserve Center C om plex at the Aberdeen Provin g Ground in Mary land ( “Aberde e n C om plex”). Currently b ef

ore the court are the parties’ cross-m otions f or judgm ent on the adm inistrative record pursuant

to Rule 52.1 of the Rules of the United States C ourt of Feder a l Claim s (“RCFC”). See RCFC 5 2 .1(c). Plaintif f also f iled a m otion f

o r leave to supplem ent t he adm inistrative r ecord w ith two af f idavits f rom its em

ploy ees, several docum ents p ertaining t o the agency ’s initial and unsuccessf ul attem pt

to com pete this p rocurem ent through sm all businesses, a nd a design specif i cations sheet. D ef

endant f iled a m otion to correct the adm inistrative record, agreeing with p laintif f that t he design s pecif

ications sheet s hould be
included in the record. The m otions a r e f ully brief ed, a nd we heard oral

argum ent o n A ugust 5, 2015. For reasons set out below, we grant i n part and
d e n y in part p laintif

f ’ s m otion to supplem ent the a dm inistrative record; w e grant d ef en d ant’s m otion to correct the adm i nistrative record; we deny plain t i f f ’ s m otion f

or judgm ent on the adm i nistrative record; and we grant
def endant’s cross-m otion.

BACKGROUND 1

On February 1 3, 2015, the agency ’s Louisville District issued Request
f or Proposal (“RFP”) No. W 912QR-1 5

- R

- 0 0 1 4 ( the “solicitation”), requesting
bid s f or the d esign and construction of an Arm y Reserve Center Com plex at
the Aberdeen Proving Ground in Mary l and. A d m inistrative Record (“AR”)

145-501. The Aberdeen Com plex will be com

prised o f a training building, a

m aintenance buildi n g (“OMS”), and an unheated storage building ( “UHS”), and will have the capacity to house eleven Arm y

Reserve units.

Prior to issuance of the current solicitation, the ag e n c y attem pted to designate this project as a sm all business set-aside. T he agency published a

m arket survey requesting sm all businesses t o subm it descriptions of their past projects that were sim ilar in scope to the proposed Aberdeen C om plex. The

survey specif

ically stated t h a t p rojects considered to b e sim ilar in scope are tho s e t h a t i n v olved “design and construction of m u ltiple buildings that include:

1 The f acts are drawn f

r om the adm inistrative record.

2arm y reserve com plexes, arm ed f

orces training com

plexes, of f ice com plexes,
education f

acilities, and m

u lti-story m ultipurpose com

p lexes.” AR 5.

The a g ency received a num ber of responses to t his survey

. One

response that the agency considered acceptable was f r om a sm all business joint

venture, [ ], which subm itted past perf o rm a nce exam

ples, prim a rily consisting of pre-engineered m etal buildings. AR 6-7, 5 4. Due to t he interest generated, the agency issued the f irst solicitation f

or the Aberdeen Com

plex,

RFP No. W 912QR-14-R-0018, as a sm all b usiness set-aside. Af ter receiving proposals f

rom sm all businesses, however, the agency determ ined that the setaside was unworkable d

u e to its inability to g enerate an acceptable b id price. Later, in preparing to a dvertise the p roject as u n r e s t r icted, the agency noted
that the “current scope was not m odif i ed f rom the prior a cquisition attem pt.”

AR 59.

In the pre-solicitation n o t i c e f or the second s olicitation, the agency described several c onstruction requirem ents f or the Aberdeen buildings:

“ [P ] e r m anent construction with rein f o r c e d c o n c r e t e f

o u n d a t i o n s , c o n c r e t e fl o o r slabs, structural steel f

ram e s, m asonry veneer walls, standing seam m etal roof

, Heating, Ventilation, and A ir Conditioning (HVAC), plum bing

, m echanical

sy stem s, security sy stem s, and electrical sy stem s.” AR 69. This language is
identical to that contained i n the sources s ought notice issued bef ore the s m all
business m arket survey

.

For the unrestricted solicitation, t he agency decided to utilize a twophase procurem ent m ethod to identif y the contractor that would bring t he m ost
value to t he agency

. Under Phase I, of f erors s u b mi t t e d a lim i ted proposal

com prised of past perf

orm an c e , technical, and pro f orm a i nf orm ation. The
solicitation asked t he of

f er o r s t o list i n the past perf o rm a n ce section three projects that were sim ilar in size and scope to the Aberdee n C o mp l e x

. AR
153. The Aberdeen Com plex is roughly

78,004 square f

eet in size. Projects
sim ilar in size are those that were “ a m inim um of 45,000 square f

eet.” Id

. The
Aberdeen Co mp l e x will require the construction o f a t raining building, a

m aintenance building, a n unheated storage building, a vehicle wash platf orm , and other site im

p rovem ents, such that the c om pleted center i s capable of supporting Arm y

Reserve units and their training m issions.

The solicitation def

ined a project “ s i milar in scope” as one t hat
involved “NEW CONSTRUCTION of m ulti-story building f

acilities such as training c om

plexes, of f ice c om plexes, e d u c a t i o n a l fa c i l i t i e s , a

n d m u l t i

- p u r p o s e

3com plexes.” Id

. In the technical section, of f erors were required to “[ p]rovide

a m anagem ent plan f

or the project that describes how [ their] l abor, resources, designers, s ubcontractors and m aterial s uppliers w ill be c oordinated and used

to e nsure succes sf

ul com pletion of the project.” AR 155. The m anagem ent plan had to “dem onstrate a clear understanding of the work and a n a bility to
coordinate resources to ensure successf ul pursuit of the w o r k

. ” I d

. Finally

, of f e r o r s w e re requested to include s everal other docum ents regarding their bonding and f

i nancial capabilities within the pro f orm a section.

The agency r eceived [ ] of f ers in response to the solicitation. A Source
Selection Evaluation Board (“SSEB”) was created to review and rate the of f ers

so that up to f

ive of f erors could be selected to advance to Phase II. T he SSEB applied several adjectival r ating criteria i n m aking its determ inations. U nder
past perf o rm ance, the SSEB evaluated the p r ojects listed by the of f eror f or relevance and conf

i dence. For relevance, the SSEB looked to the f o l l o w i ng table:

Rating Definition

Very Relevant Present/past perf orm ance ef

f ort i nvolved essentially the sam e scope and m agnitude of
ef f ort a n d com

plexities this s o l i citation requires.

Relevant Present/past perf o r m ance ef

f ort involved
sim ilar scope and m a gnitude o f ef f o rt a n d

com plexities this solicitation requires.

Som ewhat Relevant Present/past perf orm ance ef

f ort invo l ved

som e o f the scope and m agnitude of ef f ort
and com p lexities this solicitation requires.

Not Relevant Present/past p e r f orm ance ef

f ort involved
little or none of

the scope and m agnitude of
ef f ort a n d com

pl e x ities this solicitation requires.

AR 151. Based on t he r elevance of each o f the listed projects, the SSEB t hen assigned an overall conf

i dence rating, ref

lecting whether the SSEB beli eved
the of f e ror could c om

plete the Aberdeen Com

plex project and c haracterizing

4the of f eror’s overall past perf

orm ance rating. These r atings are encapsulated
in the f ollowing table:

R ating Definition

Substantial Conf

idence Based on the of f eror’s rec e nt/relevant perf orm ance record, the Governm e n t
has a h igh expectation t hat the of f eror will successf

ully perf orm the r equired
ef f ort.

Satisf actory Conf idence Based on the of f er o r’s recent/relevant perf orm ance record, the Governm e n t
has a reasonable e x pec t a t ion that t he
of f eror will successf

ully perf o rm t he required ef

f ort.

Lim ited Conf

idence Based on t h e of f e ror’s recent/relevant perf orm ance record, the Governm e n t
has a low e x pectation that the of f eror will successf

u l ly perf orm the required
ef f ort.

No Conf idence Ba s ed on the of f e ror’s recent/relevant perf orm ance record, the Governm e n t
has no expectation that the of f eror will
successf ully perf orm the required ef

f ort.

Unknown Conf

idence (Neutral) No r e c ent/relevant perf orm ance record
is available or the of

f eror’s perf

o rm ance record i s so sparse that n o m eaningf u l
conf i d e n ce assessm ent rating can be reasonably

assigned.

Id.

Under the t echnical section, the SSE B e v a l u ated the of f eror’s

ma n agem ent p lan by identif y ing any strengths, weaknesses, or def iciencies.

AR 152. A strength is def i ned as an “aspect of an of f e r or’s proposal that h as

m erit or exceeds specif

ied perf orma n c e o r c apability requirem ents in a way that will b e advantageous t o t h e Governm ent d uring contract perf

orm ance.”
Id. A weakness is def

i ned as a “f

law in the proposal that increases the risk of

5unsuccessf ul contract perf

orm ance.” Id. A def

iciency is def

ined as a “m a terial

f ailure of a proposal to m eet a Governm ent requirem ent or a com bination of signif icant w eaknesses i n a proposa l t h a t i ncreases the risk of unsuccessf ul

contract perf

orm ance to an unacceptable level.” Id. Depending on the

outcom e of t his evaluation, the SSEB would r ate the m anagem ent plan in
accordance with this table:

Adjectival Rating Definition

Outstanding Proposal m eets requirem ents and indicates an

exceptional approach and u nderstanding of
the requirem ents. Strengths f ar outweigh any

w e a k n e s s e s

. R i s k o f u n s u c c e s s f u l perf orm ance is very

low.

Good Proposal m eets requirem ents and indicates a

tho r o ugh approach and understanding of t he requirem ents. Proposal contains strengths
which outweigh a ny weaknesses. Risk of
unsuccessf

ul perf orm ance is low.

Acceptable Proposal m eets requirem ents and indicates an

ade q u a te approach and u nderstanding of t he requi r e m e nts. Strengths a nd weaknesses a r e

o f f s etting or will have little or n o im p act o n

contract p erf

orm ance. Risk o f unsuccessf u l perf orm ance is no worse than m oderate.

M arginal Proposal does not clearl y m eet requirem ents

and has not dem onstrated an a dequate

a p p r o a c h a n d u n d e r s t a n d i n g o f t h e requirem e n t s

. The proposal has one or m ore weaknesses which are not of f set by strengths.
Risk of unsuccessf

u l contract perf

orm ance is high.

Unacceptable Proposal does n ot m eet r equirem ents and

con t a i n s one or m ore def i ciencies a nd is
unawardable.

I d

. T he f ive o f f erors w ho received the best past perf orm ance and technical ratings would advance to Phase II of the procurem ent process. AR 148.

6In Phase II, the f i v e of f erors were to subm it a proposal c om prised of
technical inf

orm ation, s chedule, sm a l l business par t i c i p a t i o n , a

n d p r i c e and p ro f orm a s ections. The SSEB then will review the proposals under another set of
criteria bef

ore the contract is awarded by the Source Selection Authority

.

One of the key issues raised in this protest is what the s o licitation say s

w i t h r espect to the use of pre-engineered b uildings. P laintif f p oints out t hat
section 00116, wh i c h c ontrols the preparation of the Phase I subm issions,

m akes n o specif

ic r ef erence to the use of pre-engineered buildings. Th e Statem ent of W ork section (“SOW ”), however, which controls the ultim ate
work which the agency w i s h e s to have perf orm ed, does m ention preengineer e d m e t a l b u ildings. The g eneral construction requirem e n ts subsection
of the S OW states: “A pre-engineered building is n ot allowed f o r the Training Building or OMS. Pre-engineered buildings are ty pically used only f

or UHS buildings.” A R 4 5 1. T he structural design subsection also provides the

f ollowing: “Unless othe rwise accepted b y the Governm ent, the f ollowing

sy stem s shall N OT be perm itted f or the Training Center and V ehicle Maintenance Shops structures: Pre-engineered m etal buildings.” AR 465.

A lim ited allowance f

or pre-engineered buildings is m ade by ref erence

to the Design Guide f

or United States Arm y Reserve Facilities, UFC 4-171-05 (“Design Guide”), where bidders c o u ld read that “ [ t]he unheated s t orage building se r v e s only one f unction: the storage of o perational e q uipm ent t hat requires no tem

perature or h um idity control. A pre-engineered m etal building

sy stem is f

r equently used to house this f unction.” A R 1431. It also notes t hat

UHS buildings “are ty

pically sim

ple pre-engine ered m etal buildings.” AR

1432.

The m aterial d escribing the a gency ’s re q uirem ents f or the A berdeen

Com p lex, theref

ore, m ade it clear t hat pre-engineered build ings were not acceptable f

or the principal buildings, unless a specif i c exception was m ade.

W hi l e Section 0 0116, which lay s out the requirem ents f or Phase I
subm issions and evaluation criteria, does not specif ically direct the reader to
other portions of the solicitation, such as the SOW or the Design Guide, it does
indicate that “Phase I p r o p o s als will b e evaluated i n a ccordance with the

f a ctors and subf

actors below

. . . . ” A R 150. O ne of the requirem ent s , a s

m entioned above, was the subm ission of three projects sim ilar in size and

scope t o t h e p r o

j e ct at issue. Although the lim itation in the SOW regarding pre-engineered buildings is not s pecif i cally m entioned at that point, the

7evaluation criteria f o r past perf

orm ance p rojects repeated the f ollowing explanation: “ Present/past perf orm ance ef

f ort involved

. . . t h e s am e scope and m agnitude of ef

f ort a nd com

plexities this solicitation requires ,” with the wording vary ing f

o r e ach rating, depending on how close the project was t o the
solicitation. See AR 151 (em phasis supplied). The evaluation of past projects is thus directly

connected to the solicitation as a whole.

Plaintif f subm itted its of

f er to t he agency in r esponse to the solicitation

on March 1 7, 2015. Plaintif f listed three projects it had m anaged as the prim e

contractor that were com pleted within t he previous f ive y e a r s a nd which exceeded the 45,000 square f eet m inim um size r equirem ent of

the Aberdeen

Com p lex. The f

irst two were [

]. A m ajority of the buildings

f or these two p rojects were constructed a s pre-engi n e ered m etal buildings. [ ]. There i s no

m entio n o f p re-engineered m etal b uildings in the description o f this project.

All three projects involved construction o f a training com p lex, o f f ice com plex,
edu cational f

acilities, and a m

ulti-purpose c om

plex. Plaintif

f received

f avorable reviews f

ollowing the com

pletion of e a ch of these projects. Plaintif f
also subm itted a m anagem ent plan, as r equired by the solicitation. The

m anagem ent plan details plaintif f ’s app r o a ch to selecting subcontractors, coordinating the various s ubcontractors during t h e p r oject, supervising the
work of the subcontractors, and interacting w i th plaintif f ’s partner com

pany , Gensler. Finally

, plaintif

f subm itted the required docum e nts i n the pro f orm a section.

On March 23, 2015, the SSEB convened t o review t he 2 0 p roposals t hat
the agency received. Af

ter reviewing p laintif

f ’s proposal, the SSEB deem ed plaintif f ’s f irst two p ast perf

orm ance s ubm issions not relevant. Although they

m et the solicitation’s size speci f i cations, the S SEB noted a s to each that the project was “NOT considered sim ilar in scope because it was a pre-engineered

m etal building; which doesn’t m eet the com plexity of t h e solicited p roject.

.

. . This project included little or n one of the scope and m agnitude of ef f ort of
the proposed p roject and i s t h e ref ore considered Not Relevant.” AR 1255.
The third project was deem ed very relevant. B ased o n all three assessm ents,
the SSEB assigned p l aintif f a conf idence rating of satisf

actory conf

idence. AR
1254-55. As f

or plaintif f ’s m a nagem ent plan, the SSEB did not identif y any strengths or def

i ciencies. AR 1258. However, it did n ote one weakness: “The

8[ ] .” Id. Accordingly

, the SSEB r ated plaintif f ’s m anagem ent plan as acceptable. Id.

Ultim at e ly

, plaintif

f was not selected to advance to Phase II of the

procurem ent process. The f ive of f erors chosen to advance w ere [ ]; [ ]; [ ]; [ ] ; a n d [ ]. AR 1347. The

f ollowing i s a brief sum m ary of the r a t i n g s these f ive com panies earned on their proposals.

[ ]

Two of [ ] com

parable p ast perf

orm ance projects were deem ed relevant, a n d t h e other was very r elevant. The SSEB gave [ ] a substantial conf

i dence r ating f

or past perf

orm ance. The SSEB also identif ied
six strengths, no weaknesses, and no def iciencies in [ ] m anagem ent plan, earning [ ] a rating of outstanding.

[ ]

Two of [ ] listed projects were deem ed very relevant, while the
other was l isted as relevant. This earned [ ] a substantial conf idence rating f or its past perf

orm ance. As f

or [ ] m anagem ent plan, the SSEB
identif ied two strengths, no weaknesses

, a n d n o def iciencies, resulting in a technical rating of

good.

[ ]

All three of

[ ] past projects were rated as very relevant, leading

to a past perf

orm ance r ating of substantial conf idence. The SSEB listed f o ur strengths, no weaknesses, and no def iciencies in [ ] m anagem e n t plan. This earned [ ] a technical rating of outstanding.

[ ]

Two of [ ] projects were d eem ed very relevant, and one was deem ed

som ewhat relevant. The SSEB rated [ ] past p erf orm a nce with s u

bstantial
conf idence. [ ] m anagem ent plan contained t hree i dentif ied strengths, one weakness, and no def

iciencies, leading to a technical rating of good.

9[ ]

[ ] com

parable projects received ratings, respectively

, of

som ewhat relevant, relevant, and very relevant. The SSEB assigned a n overall
substantial conf

idence rating to [ ] past perf orm ance. The SSEB
identif ied f our strengths, no weaknesses, and no d ef iciencies in [ ]

m anagem ent plan, earning it a technical rating of good.

Of t he f if teen projects listed in the f i v e of f e rors’s past perf

orm ance sections, only three m ention use of pre-engineered m etal buildings. Two of [ ] projects c ontained several pre-engineered m etal structures, but they

were not the prim ary buildings constructed during the project. Sim ilarly

, one of [ ] projects m entions pre-engineered m etal struct u r e s , b ut notes t hat
these were only storage f a cilities t hat were ancillary t o the prim ary b uilding
constructed. Unlike plaintif f ’s p r o j e c t s, theref

ore, [ ] and [ ] past perf orm ance did not prim arily consist of

pre-engineered m etal buildings.

Plaintif f was one o f f

if teen of f e rors not invited to participate in Phase

II by the agency ’s c o n t r a c t i n g o f f i c e r , [ ]

. [ ] of these

uns u c c e ssf

ul o f f erors had the sam e past perf orm ance r ating as plaintif f

, satisf actory conf

i dence, but received a highe r r a t i n g of either good or outstanding f

or their m anagem ent plans.

Plaintif f requested a debrief

ing by the a gency

. In response to plaintif f ’s question regarding w hy pre-engineered m etal b uilding s do not m eet the
solicitation’s requirem ents, the agency responded: “Pre-engineered buildings
do not m eet the proposed com plexity of the project. The p roject de scription
is listed within the S olicitation, specif ically the Section 00116 and the Specif i cations provided with the Solicitation docum ents.” AR 1351.

On May 1, 2015

, p l aintif f f i led a p rotest with the Governm ent Accountability Of

f i ce (“GAO”). P l a i n t i f

f then inf orm ed the GAO that it
inten ded to f

i le a com p laint w ith t his court concerning the sam e protest.
Pursuant to 4 C.F.R. § 21.11 (2015), the GAO d ism issed the protest a f ter plaintif f f iled its com

plaint here on May

14, 2015.

DISCUSSION

The T ucker Act gives this court jurisdiction to “render judgm ent on an action by an interested party objecting to a solicitation by a F ederal agency f or

10bids or proposals f or a proposed contract or to a proposed awar d

. . . o r any alleged violation o f statute or regulation in connection with a procurem e nt or

a proposed procurem ent.” 28 U .S.C

. § 1 491(b)(1) (2012). P laintif f is an “interested party ” because it is a prospective bidder “ w hose direct econom ic
interest would be a f

f ected b y the award of the c ontract.” A m. Fed’n of Gov’t Emps., ALF-CIO v. U

nited States

, 258 F .3d 1294, 1302 ( Fed. Cir. 2001) (qu o t i n g 3 1 U.S.C. § 3551(2)(a) (2012)). The agency ’s decision to e xclude pla i n t i f f f rom Phase II was m ade “in connection with” a proposed

procurem ent, and plaintif f alleges that t he decision w as m ade in violation of applicable statutes and regulations. W e theref ore have jurisdiction.

I. Supplem e ntation of the Adm inistrative Record

On June 12, 2015, plaintif f f i l e d a m otion t o supplem ent the
adm inistrative record with several docum ents: two af f idavits by ACC

em ploy ees; the pre-solicitation notice and t he solicitation that the agen cy issued as part of its ef

f orts t o p u r sue the Aberdeen Com plex as a s m all
business set-aside; and an excerpt of the project’s specif ications that is
ref erenced in the solicitation but not included in the a d mi nistrative record. During oral argum ent, plaintif f dropped its request to add the two af f idavits,
and w e agree, in an y event, that they are n ot appropriately included. See

A x i o m Res. Mgmt., Inc. v. United States

, 564 F.3d 1374, 1379-81 ( Fed. Cir

. 2009). Def

e n d a n t a grees with plaintif f that the design specif

ications sheet
ref e r e n c ed in the solicitation should be included and a ccordingly m oved independently t o h a v e this docum ent added to the adm i nistrative record and

ass i g n e d i t a r ecord r ef

erence. See AR 1431-32. During oral a r gum ent, the

governm e nt also conceded that the solicitation docum ents f rom the previous

sm all b usiness set-aside should have been p roperly included in the
adm inistrative record.

W e agree with the parties t hat the design guidelines, which are ref erenced i n the current s o l i c i t a tion, along with the previous A berdeen

Com p lex solicitation and p re-solicitation notice f or the f ailed sm all business
set-aside are appropriately included i n t he a dm inistrative record. They were bef ore t he agency at the tim e of its d ecision and t hey explain the term inology and specif

ications used by

the agency

.

11II. The Cross-Motions f or Judgm e nt on the Adm inistrative Record

Plaintif f alleges that the agency v i o l a t e d t h e Com petition in Contracting

Act (“CICA”), Pub. L. No. 98-369, 9 8 Stat. 494 (1984) (codif ied i n p a r t as

am ended 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 s election procedures
consist of the f ollowing:

(1) The a gency develops

. . . a scope o f w ork statement for inclusion i n t h e solicitation that def ines the project
and provides pr o s pective of f erors w ith suf

f icient

inf orm a tion regarding the Governm ent’s requirem ents (which m ay includ e c r iteria and prelim inary design,
b u d g e t p a r a m e t e r s , a n d s c h e d u l e o r d e l i v e r y requirem ents) to enable the of f erors to subm it proposals
which m eet the Governm e n t’s needs. . . . .

(2) T h e contracting o f

f icer solicits phase-one proposals
that

(A) include inf

o rm ation on the of

f eror’s

(i) technical approach; and

(ii) technical qualif

ications; and

(B) do not include

(i) detailed design inf

orm ation; or

(ii) cost or price inf

o rm a tion.

(3) T he evaluation f

actors to be used in evaluating phaseone p roposals are s t a t ed in the solicitation and include specialized experience a n d technical com petence, capability to perf orm , past perf

o rm ance o f the of

f eror’s

team (including the architect-engineer and construction

m e m b ers of the t eam ) and ot h er appropriate f actors

. . .

12. The agency evaluates phase-one proposals on the basis
of t he phase-one evaluation f actors set f

or t h i n the
solicitation.

1 0 U

. S .C. § 2305a(c)(1)-(3) (em p hasis supplied). CICA also m andates th a t “[ t]he head of an agency shall evaluate sealed bids and c o m petitive proposals
and m ake an award based solely on the f actors specif

ied in th e s o l i c i t a tion.” § 2305(b)(1).

Furthermo r e, the applicable provisions of the FAR state: “An agency shall evaluate com

p etitive proposa l s and then assess their relative qualities solely o n the f

a ctors a nd subf

actors s pecif

i ed in the solicitation.” 48 C.F.R. § 15.305(a). Under the past perf orm ance evaluation section, t h e r e g ulation notes
that the “source selection a uthor i t y shall determ ine the r elevance of sim i lar past perf o rm ance inf

orm ation.” Id. § 15.305(a)(2)(ii).

B o t h CICA and the FAR require that an agency ’s procureme n t
decisions be based solely on the f a c t ors d elineated in the solicitation. Microdyne Outsourcing, Inc. v. United States

, 72 Fed. Cl. 6 9 4

, 6 99 (2006). Nonetheless, t he “solicitation need not i dentif y each elem ent to be considered by the agency d

uring the course of t he evaluation where s uch elem e nt is
intrinsic to the stated f

actors.” NEQ, LLC v. United States

, 88 Fed. C l. 38, 48 (2009) (internal quotation and citation om itted). Thus, “an agency still h as ‘great discretion in determ ining the scope of an e valuation f actor.’” Banknote

Cor p

. o f A m

. , Inc. v. U

nited States

, 56 Fed. Cl. 377, 3 86 (2003) (quoting Forestry Surveys & Data v. United S tates

, 44 Fed. Cl. 493, 499 (1999)). For

a protestor to successf

ully c laim that an a gency relied on a n unstated f actor, it

m ust show that the a gency used a “signif icantly dif f erent basis” t han the stated

f ac t ors when evaluating the proposal, which r esulted in prejudice to the
protestor. N

EQ , 88 Fed. Cl. at 48.

A. Evaluation C riteria, Com plexity

, and Pre-engineered B uildings

In its m otion, pl a i n t i f

f argues that the agency exceeded its a uthority
und e r C I CA and the F AR when the SSEB assigned no b etter than a satisf actory conf

idence rating, in p a r t b ecause it concluded that two of plaintif f ’s p ast history subm issions d id not dem onstrate suf f i cient c o m

plexity
due to t heir reliance on construction of pre-engineered buildings. The agency

c h a racterized these two projects as not relevant experience. W hile plaintif f acknowledges the discouragem ent o f pre-engi n e e r e d m etal buildings in the

13SOW

, it argues that the SSEB could not m easure relevance of past experience

against t he SOW

, but should have lim ited its conside r a tion to the literal application of the evaluation criteria f or Phase I

, listed i n section 00116 of the solicitation, nam e ly

, s ize and scope. Plaintif f argues that what the agency did

am ounts t o t h e application of an undisclosed evaluation t erm , nam ely

“com plexity ,” as m easured by whether o r not a building w ould be constructed using pre-engineering m ethods.

Plaintif f a rgues in the alternative that, even if the SSEB was entitled to
look outside of s ection 00116 when evaluating t he p ast perf o rm ance p rojects,

i t s hould have recognized that the Design Guide’s characterization of p r e

engineered buildings as sim ple s tructures wi t hout clim ate c ontrol was incorrect. Plaintif

f argues that this is readily apparent f r om the d escription of
its p rior pre-engineered m etal building projects, which plaintif f c ontends were dem onstrably as com

plex as what the agency wanted. Plaintif f a sserts that the

agency already utilized thi s a p proach when, under the f irst solicitation, it

c h a r a c t e rized [ ] past perf orm ance projects a s a c c e p t a b l e e v e n though they were p r im arily pre-engineered buildings. According to plaintif f

, it would be inconsistent f

or the agency to categorically dism iss pre-engineered

m etal buildings a s less com plex when it considered t hem relevant in an earlier

procurem ent f

or the sam e project.

In its cross-m otion, def

e ndant a r gues that the f

a ctor “sim ilar in s cope”
would self

-evidently i n clude a com parison o f plaintif

f ’s past perf

orm ance projects with the SOW

, which presum ptively prohibits pre-engineered m etal

structures f

or t he two m ain buildings. W e agree. Past perf orm ance as applied

in Phase I cannot b e read in i solation f rom the rest of the solicitation. The adjectival rating sy s tem f

or past perf

orm a n ce obviously assum es relevance in
connection with the work, as set out in the SOW

, that the agency wants d one. This is m ade explicit in the rating term s, w h ich each include a ref erence t o the
solicitation generally

. T his is not superf luous. The A berdeen Com plex SOW explicitly prohibits pre-engineered m e t al structures f or the OMS and Training buildings. AR 451.

Plaintif f points out that t he p rohibition of pre-engineered buildings was

not absolute; the agency r etained the discretion to perm i t pre-engineered m etal

structures, presum ably i f asked by a bidder. But there is no t h i n g im proper about the presum

ptiv e d i sallowance. Additionally

, the agency ’s earlier
acceptance of pre-engineered buildings to e s tablish past p e r f o r ma n ce was expressed during the m arket survey period conducted approxim ately two y ears

14ago w ith the a im of awarding the work to a sm all business. T he agency is

entitled to ref

ine its pref

e r ences as the procurem ent shif ted f rom a s m all
business set-aside to an unrestricted best value trade-of f f i r m f ixed price

contract. See SDS Int’l v. United States

, 48 Fed. Cl. 759, 772 ( 2001). W e will

not second-guess the agency ’s pref erences regarding pre-engineered m etal buildings, m e aning that t here was a discon n e c t between plaintif f ’s past perf orm ance and what the agency decided it wants.

B. The Managem ent Plan and Lack of Prejudice

Plaintif f a lso takes i ssue with the agency ’s e valuation of its

m anagem ent plan. The agency concluded t hat ACC’s m anagem ent plan was

not specif ically tailored to the Aberdeen Com plex and t heref

ore assigned it a weakness. P laintif

f

, however, asserts that the agency applied an unstated

e v a l u a t i on c riteria because nothing in the solicitation r equired the m anagem e n t plan to b e specif

ically tailored to the Aberdeen Com plex. Addition a l l y , plaintif f avers that [ ] m anagem e n t plan was not specif ically tailored to
the Aberdeen p roject either, but it was not a s signed a weakness f or the lack of specif i city

. Instead, that of

f eror ultim ately received the r ating of outstanding

f or its technical approach. Plaintif f a r g u e s that, if t he agency h ad been
consistent i n docking of

f erors f or f a i lure to tailor the m anagem ent plan, t hen

ACC s h o u ld not have received a weakness, which would have r esulted, according to plaintif

f

, in an overall rating of good or outstanding f o r i ts technical approach.

As def endant points out, however, if plaintif f ’s past perf

o rm ance evaluation does not change, it has a serious problem in obtaining relief based solely on critiqui n g the SSEB’s evaluation of other b idder’s m anagem ent plans.

The SSEB did not identif y a def iciency in p laintif

f ’s m anagem ent plan;

it only identif

ied a weakness based on the l ack of specif icity

. 2 I n other words,

2 The def in i t i ons of weakness and def iciency appear in the FAR, 48

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

We a k n ess is def

ined as a “f

law in the proposal that i ncreases the ri s k o f
unsuccessf

ul c ontract perf

orm ance.” A R 1 52. O n the other hand, d ef iciency

i s d e f ined as a “m aterial f

ailure o f a proposal to m eet a Governm ent (continued...)

15t h e SSEB did not f ault plaintif

f ’s plan f

or f ailing to com

ply w i t h t h e solicitation’s r equirem ents; rather, the S SEB concluded that the plan m e t the

m inim um requirem ents but contained this single w eakness. This is why plaintif f ultim ately received an acceptable rating. As def end a n t n o tes, even though [ ] m anagem ent plan was not specif ically t ailored to the
Aberdeen Com

plex, it m erited six strengths, w hich set i t apart f rom ACC’s
technical plan. The SSEB assigned plaintif f ’s m anagem ent plan no strengths
and one weakne s s f

o r f a i ling to tailor the plan to the Aberdeen Com p lex

pr o j e c t

. Because there were no identif ied def iciencies, the SSEB c oncluded
that plaintif

f ’s plan m e t the m inim

um requirem ents. W e have no basis f or overturning the agency ’s considered judgm ent in that respect.

More im portantly

, plaintif

f cannot establish prejudice. As noted above,

a protestor cannot be su c c e s s f ul by m erely showing a violation of the applicable statutes and r egulations; it m ust also dem o nstrate that the violation
resulted in prejudice, that there was a “ s ubstantial chance” the p rotestor w ould
have received the award but f or t he violation. Bannum, Inc. v. United States

, 404 F

. 3d 1346, 1353 (Fed. Cir. 2005). E ven i f plaintif f ’s m a nagem ent p lan

was not deem ed to have a weakness, it still would have m erited n o higher t han

an acceptable rating because the SSEB did not rate any of f e ror’s m anagem ent plan as good unless it identif ied at least two strength s

. To m erit a rating of good, the p lan m

ust contain “strengths which outweigh a ny weaknesses.” AR

152

. The SSEB did not identif y any strengths in plaintif f ’s plan, and plaintif

f
does not argue that the SSEB should have done s o. Accordingly

, i t is
reasonable t o a s s u me that the plan would have been rated acceptable, which
is def ined as a p l a n w here “[ s]trengths and weaknesses are of f setting.” Id.
Furtherm ore, all of the of

f erors who received a technical rating of good had at
least two identif

ied strengths.

W ithout a technical ra t i n g o f good a nd a past perf o rm ance rating of
substantial conf

idence, it is extrem ely unlikely that plaintif f would have been
invited to advance to Phase II. The solicitation indicates that the a g ency will

s e l e c t f ive o f f erors to advance to Phase II. Plaintif f r eceived a rating o f
satisf actory c onf

idence f or its past perf

orm ance an d a n acceptable technical

2 (...continued) requirem ent or a com

bination of signif

icant weakne s s e s in a proposal t hat
increases the ris k o f u nsuccessf ul c ontract perf

orm ance t o an unacceptable
level.” Id.

16rating. All f ive of the of

f erors who advanced received a techn i c al rating of good or higher. The agency also expressed substantial conf idence in the past perf orm ance o f the f

ive of f erors who were chosen t o com pete i n P hase II.
Furtherm ore, t here were [ ] of f ero rs w ho did n ot advance to P hase II w ho
received better ratings than plaintif f

. See AR 1348. Plaintif

f has supplied us with no re a son to think that it would have f a red any better than these [ ]
unsuccessf

ul o f f erors had it r eceived a higher p ast perf orm ance rating.

W i thout prevailing on both issues, t he relevancy of pre-engineered buildings

in the evaluation of past perf orm an c e a n d t he application of an unstated
evaluation criteria to plaintif f ’s m anagem ent plan, ACC is u nable to show t hat it could have scored high enough to be included in the f inal f i ve.

C. Injunctive Relief

Plaintif f has f ailed to establish that the agency violated the law or was

o t h e r w i s e a rbitrary or capricious in its decision-m aking t o p laintif f ’ s prejudi c e , and we, theref

ore, f ind it unnecessary

to reach the issue of injunctive relief

.

CONCLUSION

Fo r t h e r easons s tated above, we grant in part a nd d eny in part plaintif f ’s m otion to supplem ent t he adm ini s t r a t i ve record, a nd we grant
def endant’s m otion to correct the adm in i strative record. Furtherm ore, we conclude th a t t h e agency e xercised reasonable judgm ent and com plied with applicable s t atutes and regulations when it excluded p laintif f f rom P hase II of
the procurem ent process. W e theref ore deny p laintif

f ’s m otion f

o r j udgm ent

on the adm inistrative record and grant d ef endant’s cross

- mo t i on. The Clerk is directed to enter judgm ent accordingly . No costs.

s/ Eric G. Bruggink

ERIC G. BRUGGINK Judge

17