United States Court of Appeals

for the Federal Circuit

______________________ 

DYNCORP INTERNATIONAL, LLC,

Plaintiff-Appellant

v.

UNITED STATES, KELLOGG BROWN & ROOT

SERVICES, INC., VECTRUS SYSTEMS

CORPORATION, FLUOR INTERCONTINENTAL,

INC., PAE-PARSONS GLOBAL LOGISTICS

SERVICES, LLC,

Defendants-Appellees

______________________ 

2020-2041

______________________ 

Appeal from the United States Court of Federal Claims 

in No. 1:19-cv-01133-LAS, Senior Judge Loren A. Smith. 

______________________ 

Decided: August 25, 2021 

______________________ 

AARON MARTIN PANNER, Kellogg, Huber, Hansen, 

Todd, Evans & Figel, PLLC, Washington, DC, for plaintiffappellant. Also represented by COLLIN WHITE. 

WILLIAM PORTER RAYEL, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee 

United States. Defendant-appellee United States also represented by SARAH ELAINE HARRINGTON, ROBERT EDWARD

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2 DYNCORP INTERNATIONAL, LLC v. US

KIRSCHMAN, JR., PATRICIA M. MCCARTHY; DANA J. CHASE,

SCOTT NICHOLAS FLESCH, GREGORY T. O’MALLEY, Contract 

and Fiscal Law Division, United States Army Legal 

Service Agency, Fort Belvoir, VA.

SETH LOCKE, Perkins Coie, LLP, Washington, DC, for 

defendant-appellee Kellogg Brown & Root Services, Inc. 

Also represented by LEE PAUL CURTIS, BRENNA DUNCAN,

JULIA M. FOX; DAN L. BAGATELL, Hanover, NH. 

DEANNE MAYNARD, Morrison & Foerster LLP, Washington, DC, for defendant-appellee Vectrus Systems Corporation. Also represented by SETH W. LLOYD, KEVIN P.

MULLEN, MICHAEL QIAN, JAMES A. TUCKER. 

ANDREW E. SHIPLEY, Wilmer Cutler Pickering Hale and 

Dorr LLP, Washington, DC, for defendant-appellee Fluor 

Intercontinental, Inc. Also represented by PHILIP EDWARD

BESHARA. 

ANUJ VOHRA, Crowell & Moring, LLP, Washington, DC, 

for defendant-appellee PAE-Parsons Global Logistics Services, LLC. Also represented by CHRISTIAN CURRAN,

ZACHARY H. SCHROEDER. 

 ______________________ 

Before PROST, SCHALL, and O’MALLEY, Circuit Judges. 

PROST, Circuit Judge. 

This bid-protest case arises from a peculiar procurement mechanism. Contracting officers often must discuss 

deficiencies and significant weaknesses in proposals with 

offerors before proposals are final. And so when an offeror 

proposes a price that is unreasonably high (so as to preclude an award), the government must discuss that unreasonableness with the offeror, potentially giving it a chance 

to revise its proposal to fix what may have went wrong. If 

the price is too high yet not unreasonable, the government 

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DYNCORP INTERNATIONAL, LLC v. US 3

need not discuss it and the offeror need not get another try. 

The upshot is that an offeror whose initial proposal is unreasonably priced may fare better than one whose isn’t. 

Here, six firms vied for spots to perform logistics work 

for the Army across the globe. DynCorp lost. Its prices 

were higher than its competitors’; its proposed technical 

approach was worse. After balancing four proposal-evaluation factors, none of which DynCorp was best on, the 

Army went with other offerors. 

Now DynCorp argues that the price it gave the Army 

was so high as to be unreasonable—and that the Army

should have concluded as much and given it the opportunity to revise its proposed approach. DynCorp takes issue with the Army’s price-reasonableness analysis, which 

it says skirted regulatory requirements and was irrational 

besides. 

The Court of Federal Claims dismissed DynCorp’s bid 

protest, finding no error in the Army’s analysis. As we explain below, we agree. Accordingly, we affirm.

BACKGROUND

I. THE SOLICITATION

This case involves the fifth iteration of the Army’s Logistics Civil Augmentation Program—i.e., “LOGCAP V”—

a procurement for logistics support services. Appellant, 

DynCorp International, LLC (“DynCorp”), was an unsuccessful offeror. Four of the appellees—Kellogg, Brown 

& Root Services, Inc. (“KBR”), Vectrus Systems Corporation (“Vectrus”), Fluor Intercontinental, Inc. (“Fluor”), and 

PAE-Parsons Global Logistics Services, LLC (“P2GLS”)—

were successful.

By way of background, in November 2017 the Army issued the LOGCAP V solicitation under Request for Proposal No. W52P1J-16-R-0001. DynCorp Int’l LLC v. United 

States, 148 Fed. Cl. 568, 572 (2020) (“DynCorp I”). 

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4 DYNCORP INTERNATIONAL, LLC v. US

Generally, LOGCAP is a procurement program for civilian 

logistics support services to the United States Army and 

related Department of Defense components throughout the 

world. In this iteration, the Army was to award four to six 

indefinite-delivery, indefinite-quantity (“IDIQ”) contracts—each covering services among six geographic commands, plus Afghanistan.1 Concurrent with the IDIQ 

awards, the Army was also to award seven sets of task orders—one set for each command and another for Afghanistan. Id. The services are broad: for instance, “supply 

operations, transportation services, engineering services, 

base camp services, and other logistics and sustainment 

support services,” including “minor construction[,] food services[,] laundry[,] morale, welfare, and recreation services[,] billeting[, and] facility management.” 

J.A. 1130447.

Under the solicitation, proposals were to be evaluated 

as a best-value tradeoff between four factors: (1) “technical/management,” (2) “past performance,” (3) “small 

business participation,” and (4) “cost/price.” DynCorp I, 

148 Fed. Cl. at 572 (capitalization normalized); see also

J.A. 1002511, 1002624. For the first three factors, each 

proposal was to be assigned a qualitative adjectival rating—“good,” “acceptable,” or the like. See DynCorp I, 

148 Fed. Cl. at 572–73. The technical/management factor 

1 That is, Northern Command (“NORTHCOM”), 

Southern Command (“SOUTHCOM”), European Command (“EUCOM”), African Command (“AFRICOM”), Central Command (“CENTCOM”), and Pacific Command 

(“PACOM”). DynCorp I, 148 Fed. Cl. at 572. The IDIQ 

contracts were divided into three so-called Operational Priority Groupings (EUCOM/PACOM, 

CENTCOM/NORTHCOM/AFRICOM/SOUTHCOM, and 

Afghanistan). Id. For short, the commands and Afghanistan are referred to here as “regions.”

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DYNCORP INTERNATIONAL, LLC v. US 5

was the most important, and cost/price the least. Id.

at 572; J.A. 1002624. 

The technical/management factor evaluation criteria 

reflected the complexity and scope of the procurement, as 

well as the latitude given to individual offerors to choose 

their own technical approaches to fulfilling the Army’s logistical needs. The Army was to evaluate, for example, “offerors’ regional capabilities, management approach, key 

initiatives, and labor staffing models.” DynCorp I, 148 Fed.

Cl. at 573 (capitalization normalized); J.A. 1002626–27. 

The solicitation also detailed how cost and price would 

be evaluated—both for realism and reasonableness. See 

J.A. 1002629–30. “Cost realism” asks if a cost estimate is 

too low; “price reasonableness” asks if a proposed price is 

too high. Agile Def., Inc. v. United States, 959 F.3d 1379, 

1384 (Fed. Cir. 2020); see also FAR 15.404-1(d)(1).2 As relevant here, the solicitation encompassed cost-plus-fixedfee and firm-fixed-price portions. See DynCorp I, 148 Fed.

Cl. at 573. To be considered, an offeror’s total proposed cost 

(for the cost-plus-fixed-fee portion) and total proposed price 

(for the firm-fixed-priced portion) had to separately be 

found reasonable. Id. at 573, 579; J.A. 1002629–30. Unreasonableness for any region would render the offeror ineligible for award in that region, notwithstanding the 

strength of any other factor. J.A. 1002630. 

This appeal specifically concerns price reasonableness 

for the firm-fixed-price portion. To that end, the solicitation provided that price reasonableness would be evaluated 

“using price analysis techniques” in accordance with 

FAR 15.404-1(b). See J.A. 1002629–30. 

2 The Federal Acquisition Regulation (“FAR”) is codified in chapter 1 of title 48 of the Code of Federal Regulations. The section numbering is coextensive: for example, 

FAR 15.404 is codified at 48 C.F.R. § 15.404.

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6 DYNCORP INTERNATIONAL, LLC v. US

II. THE PROPOSALS

Six offerors submitted proposals. DynCorp I, 148 Fed.

Cl. at 573. All six participated in multiple rounds of discussions and proposal revisions over the course of a year. 

Id. During these discussions, the Army issued more than 

one hundred evaluation notices to DynCorp alone, of which 

thirty-nine related to cost or price in general. Id. All were 

satisfactorily resolved. 

The contracting officer noted that DynCorp had provided the most expensive proposals in five regions but 

opted not to discuss the total-price issue with DynCorp. Id. 

Namely, the contracting officer determined that there was 

“no basis to state that DynCorp’s prices are too high,” because its proposed hours and labor types were acceptable 

from a technical perspective, and there were no issues with 

its proposed direct and indirect rates. J.A. 1124864. 

On the technical/management factor, DynCorp’s proposals all were rated merely “good” or “acceptable.” DynCorp I, 148 Fed. Cl. at 573. Its labor staffing model was 

“feasible” and seemed “consistent, scalable, and adjustable,” even if “generic and simplistic.” Id. But DynCorp’s 

proposal also “failed to mitigate risks with transparency, 

affordability, and predictability.” Id. at 573–74. 

In February 2019, the Army issued a memorandum for 

each region comparing the offerors’ total cost-plus-fixed-fee 

amounts to each other and total firm-fixed-prices to each 

other. It determined (1) that there was adequate price competition in each region and (2) that the lowest-priced offer 

was reasonable. DynCorp I, 148 Fed. Cl. at 581. And in 

April 2019, it awarded four IDIQ contracts, along with related task orders.3 Id. at 573. DynCorp won none of them. 

3 KBR received EUCOM, NORTHCOM, and Afghanistan; Vectrus received PACOM and CENTCOM; Fluor 

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III. THE AFTERMATH

A. The First Round at the Court of Federal Claims

In August 2019, DynCorp brought a bid protest in the 

Court of Federal Claims challenging the awards under the 

Administrative Procedure Act (“APA”). See generally DynCorp I, 148 Fed. Cl. 568. That action followed the denial of 

an earlier bid protest that it had filed with the Government 

Accountability Office. Id. at 574.

DynCorp’s protest made a bevy of allegations. See id.

at 575. After briefing, the parties cross-moved for judgment on the administrative record. The Court of Federal 

Claims later rejected most of DynCorp’s challenges—all 

but one.4 DynCorp had accused the Army of erring in its 

price-reasonableness analysis. Id. at 579. At first, the

Army had evaluated price reasonableness for only some offers—the lowest-priced and winning ones. See id. at 581. 

In its view, that was all it needed to do to ensure that the 

contract could be awarded at a fair and reasonable price. 

But the solicitation required the Army to evaluate price 

reasonableness for all offers. Id. at 579, 581. This mattered: an unreasonably high price would be a “deficiency” 

or “significant weakness” that the Army would be required 

to discuss with the offeror. Id. at 582 (citing WorldTravelService v. United States, 49 Fed. Cl. 431, 439 (2001)); see

FAR 15.306(d)(3). 

Reasoning that this failure seriously hampered DynCorp’s chances to win and made it impossible to tell 

whether the Army had otherwise gone astray in its pricereasonableness analysis, the court found both error and 

prejudice. DynCorp I, 148 Fed. Cl. at 582, 585. It explained 

received AFRICOM; and P2GLS received SOUTHCOM. 

DynCorp I, 148 Fed. Cl. at 573.

4 The other challenges are not at issue in this appeal.

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8 DYNCORP INTERNATIONAL, LLC v. US

as much to the parties from the bench at argument. See 

J.A. 1862–65.

B. The Army’s Corrective Action on Remand 

Before receiving a judgment and written opinion on the 

above problems, the Army changed course. In advance of

the Court of Federal Claims’ written opinion discussing its 

findings above, it became clear to the Army that its failure 

to evaluate all the proposals for reasonableness was problematic. See DynCorp I, 148 Fed. Cl. at 585. So, the Army 

told the trial court in December 2019 that it intended to 

take corrective action on that front. Id. The court stayed 

and remanded the case to allow the Army to do so. Id. 

at 586. 

On remand, the Army sought additional data from the

offerors to justify the reasonableness of their firm-fixed 

prices. See J.A. 670–1689, 1753885, 1755618, 1755715, 

1755844, 1755951, 1772629. It reviewed this information

along with that in the original proposals.

Each proposal differed in its technical approach. Accordingly, the Army looked at each element of each approach, evaluated whether it was technically reasonable, 

analyzed whether the price was reasonable for that element, and then determined whether the price was reasonable overall. See J.A. 670–1689. In all, the Army 

generated seventy-eight memoranda spanning over a thousand pages and detailing its price-reasonableness analysis 

for each offer in each region. See J.A. 669–1689. All six 

offerors, it concluded, had proposed reasonable (if different) 

technical approaches with reasonable (if different) prices. 

Accordingly, the Army declined to reopen discussions, 

maintained its prior award choices, and in February 2020

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notified the trial court of the results of its corrective action. 

DynCorp I, 148 Fed. Cl. at 586; J.A. 665–69.5

C. The Second Round at the Court of Federal Claims

Back at the Court of Federal Claims, DynCorp remained dissatisfied, continuing to insist that its offer must 

have been unreasonable and that the Army’s price-reasonableness analysis was erroneous. To that end, it argued 

that the Army had violated the FAR in its choice of priceanalysis techniques and had irrationally concluded that all 

the prices were reasonable despite their spanning a wide 

range. See DynCorp Int’l LLC v. United States, 

No. 19-1133, 2020 U.S. Claims LEXIS 959, at *5–6 

(Fed. Cl. May 21, 2020) (“DynCorp II”). 

The Court of Federal Claims disagreed, concluding that 

the Army had complied with the FAR and the solicitation, 

which did not restrict the Army’s discretion in the way 

DynCorp said it did. Id. at *8. The court observed that 

DynCorp simply “disagree[d] with the manner in which the 

[Army] conducted its price reasonableness evaluations.” 

Id. at *5–6. With the corrective action considered, the court 

reasoned, DynCorp had identified nothing to justify 

5 The corrective action here was relevant to other bid 

protests concerning the LOGCAP V solicitation. See, e.g.,

Fluor Intercontinental, Inc. v. United States, 147 Fed. Cl. 

309, 333–36 (2020); AECOM Mgmt. Servs., Inc. v. United 

States, 147 Fed. Cl. 285, 294 (2020); PAE-Parsons Glob. Logistics Servs., LLC v. United States, 147 Fed. Cl. 294,

308–09 (2020). And in those cases, the trial court rejected 

in detail various other challenges to the Army’s price-reasonableness analysis. See, e.g., Fluor, 147 Fed. Cl. at 338

(concluding that corrective action “adequately evaluated 

price reasonableness in accordance with both the [s]olicitation and the FAR”); AECOM, 147 Fed. Cl. at 293–94.

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10 DYNCORP INTERNATIONAL, LLC v. US

overturning the award. Accordingly, it dismissed the case. 

Id. at *11–12.

DynCorp now appeals. We have jurisdiction under 

28 U.S.C. § 1295(a)(3).

DISCUSSION

I 

A bid protest has two steps. First, the trial court determines whether the government acted irrationally or 

contrary to law in evaluating the proposals and awarding 

the contract. Bannum, Inc. v. United States, 404 F.3d 1346,

1351 (Fed. Cir. 2005). Second, if the government erred, the 

trial court then determines whether that error prejudiced 

the protester. Id. 

Here the Court of Federal Claims discerned no error 

and therefore granted judgment on the administrative record. On appeal of that judgment, we review legal conclusions de novo and underlying determinations of fact for 

clear error. Id. at 1351, 1354. 

The Court of Federal Claims had jurisdiction over DynCorp’s bid protest of the awards under 28 U.S.C. § 1491. 

The Court of Federal Claims reviews the agency’s decision 

under the judicial-review standards of the APA. 28 U.S.C. 

§ 1491(b)(4). An APA challenge requires showing that the 

agency action in question is “arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with 

law.” 5 U.S.C. § 706(2)(A); Impresa Construzioni Geom. 

Domenico Garufi v. United States, 238 F.3d 1324, 1332 n.5 

(Fed. Cir. 2001). Accordingly, “[a] bid 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.” WellPoint Mil. Care 

Corp. v. United States, 953 F.3d 1373, 1377 (Fed. Cir. 2020)

(quoting Impresa, 238 F.3d at 1332). The APA also requires that “due account shall be taken of the rule of prejudicial error.” 5 U.S.C. § 706. So, “[t]o prevail in a bid 

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DYNCORP INTERNATIONAL, LLC v. US 11

protest, a protestor must show a significant, prejudicial error in the procurement process.” WellPoint, 953 F.3d 

at 1377 (quoting Alfa Laval Separation, Inc. v. United 

States, 175 F.3d 1365, 1367 (Fed. Cir. 1999)); see also Bannum, 404 F.3d at 1351.6 

What DynCorp challenges here is the way in which the 

Army concluded that its proposed prices were reasonable. 

Unreasonably high-priced proposals were ineligible for 

award under the solicitation. DynCorp’s overall argument 

is that if the Army had labeled its proposed price unreasonable, then that would have been a “deficiency” or “significant weakness” of its proposal. See DynCorp I, 148 Fed. Cl. 

at 578. A relevant provision of the FAR requires contracting officers to discuss “deficiencies” and “significant weaknesses” with offerors. See FAR 15.306(d)(3) (“At a 

minimum, the contracting officer must . . . indicate to, or 

discuss with, each offeror still being considered for award, 

deficiencies[ and] significant weaknesses . . . to which the 

offeror has not yet had an opportunity to respond. . . . However, the contracting officer is not required to discuss every 

area where the proposal could be improved. The scope and 

extent of discussions are a matter of contracting officer 

judgment.”); DynCorp I, 148 Fed. Cl. at 577. The 

6 The APA does not provide an exception to the prejudicial-error rule for arbitrary and capricious action. See 

Glenn Def. Marine (Asia), PTE Ltd. v. United States, 

720 F.3d 901, 907, 911–12 (Fed. Cir. 2013); see also Carstens v. Nuclear Regul. Comm’n, 742 F.2d 1546, 1558 

(D.C. Cir. 1984) (noting that the “onus is squarely upon” a 

party alleging error under the APA “to establish prejudice”); Jicarilla Apache Nation v. U.S. Dep’t of the Interior, 

613 F.3d 1112, 1121 (D.C. Cir. 2010) (“Courts reviewing 

agency action under section 706(2)(A)’s ‘arbitrary and capricious’ standard must take due account of the rule of prejudicial error.” (cleaned up)).

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discussion prompted by that price-unreasonableness determination, DynCorp contends, would have given it the opportunity to revise its technical approach to reach a lower 

price (perhaps incidentally bolstering its performance on 

the technical factor too), improving its competitive odds. 

DynCorp argues that the Army went astray in two 

ways. First, we consider DynCorp’s argument that the 

Army violated part 15 of the FAR in its price-reasonableness analysis by bypassing two “preferred” price-analysis 

techniques without meeting certain conditions. DynCorp 

argues that if the Army had used the “preferred” priceanalysis techniques, it would likely have concluded that 

DynCorp’s proposed price was unreasonable. Second, we 

address whether the Army’s price-reasonableness conclusion was arbitrary and capricious in view of the price disparity among offers. DynCorp contends that the Army 

failed to account for that price disparity—and that if it had, 

the unreasonableness of its price would have been apparent. Overall, DynCorp insists that but for either error, it

would have had a substantial chance of an award: the 

Army would have had to tell it that its prices were unreasonably high, and DynCorp could have revised its approach 

to reach a lower price. 

II 

DynCorp’s first argument is that that the Army violated FAR 15.404-1 by using certain price-analysis techniques without making certain predicate determinations.7 

7 An IDIQ contract such as this is not always subject 

to FAR 15.404-1. See DynCorp I, 148 Fed. Cl. at 579 n.4. 

The reason that FAR 15.404-1 applies here is that the 

Army itself elected to employ it as a procurement-evaluation method. Id. That is, the solicitation provided that the 

government would “evaluate price reasonableness for the 

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In its view, had the contracting officer instead used certain 

other techniques (i.e., ones that DynCorp argues are required by the FAR), its prices would have likely been 

deemed unreasonable. As the argument goes, that unreasonableness finding would prompt discussions, the opportunity to improve its proposal, and a better chance at an 

award.

Contracting officers must procure services “at fair and 

reasonable prices.” FAR 15.402(a). To that end, 

FAR 15.404-1 identifies various price-analysis techniques

and provides that the “objective of proposal analysis is to 

ensure that the final agreed-to price is fair and reasonable.” FAR 15.404-1(a). And “[t]he complexity and circumstances of each acquisition should determine the level of 

detail of the analysis required.” FAR 15.404-1(a)(1). 

Given the differences among procurements and the 

judgment involved, the government “may use various price 

analysis techniques and procedures to ensure a fair and 

reasonable price.” See FAR 15.404-1(b)(2). The FAR explains that “examples” of these techniques “include, but are 

not limited to,” a seven-item list. See FAR 15.404-

1(b)(2)(i)–(vii). The first two on that list are comparison of 

proposed prices to each other and to historical prices. 

FAR 15.404-1(b)(i), (ii). The list continues: “parametric estimating methods/application of rough yardsticks,” “[c]omparison with competitive published price lists, published 

market prices of commodities, [or] similar indexes,” “[c]omparison . . . with independent [g]overnment cost estimates,” and “[c]omparison . . . with prices obtained through 

market research.” FAR 15.404(b)(iii)–(vi). The last-listed 

technique is “[a]nalysis of data other than certified cost or 

fixed priced effort [in accordance with] FAR 15.404-1(b).” 

Id. at 579 (alteration in original); see also J.A. 1002629.

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pricing data . . . provided by the offeror.” FAR 15.404-

1(b)(vii). 

Among these, the FAR suggests a starting point: 

The first two techniques at 15.404-1(b)(2) are the 

preferred techniques. However, if the contracting 

officer determines that information on competitive 

proposed prices or previous contract prices is not 

available or is insufficient to determine that the 

price is fair and reasonable, the contracting officer 

may use any of the remaining techniques as appropriate to the circumstances applicable to the acquisition. 

FAR 15.404-1(b)(3). 

The Army did not use the first two techniques and did 

not make a documented determination that such information was unavailable or insufficient. The question in 

this case is whether it was required to. 

DynCorp insists that any but the “preferred” techniques are strictly forbidden unless there is first a “determination” that competitive or historical price information 

is unavailable or insufficient. Appellees, the successful 

awardees, argue that FAR 15.404-1(b)(3) provides guidance, not a rule, and that a contracting officer has discretion to determine which price-analysis technique to use as 

appropriate. The government agrees. So did the Court of 

Federal Claims. See DynCorp II, 2020 U.S. Claims LEXIS 

959, at *8–10; see also, e.g., Ala. Aircraft Indus., Inc.-Birmingham v. United States, 83 Fed. Cl. 666, 696 (2008), 

rev’d on other grounds, 586 F.3d 1372 (Fed. Cir. 2009); Survival Sys. USA, Inc. v. United States, 102 Fed. Cl. 255, 269 

(2011).

A 

In our view, FAR 15.404-1(b)(3) does not conditionally

prohibit a contracting officer from using any particular 

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DYNCORP INTERNATIONAL, LLC v. US 15

price-analysis technique. Rather, FAR 15.404-1 leaves the 

choice of price-analysis technique to a contracting officer’s 

reasonable judgment in the context of an individual procurement. 

1 

As an initial matter, we reiterate that “contracting officers are entitled to exercise discretion upon a broad range 

of issues confronting them in the procurement process.” 

Impresa, 238 F.3d at 1332 (cleaned up). “Contracting officers are given broad discretion in their evaluation of bids,” 

and when a decision within the scope of that discretion “is 

reasonable[,] a court may not substitute its judgment for 

that of the agency.” R & W Flammann GmbH v. United 

States, 339 F.3d 1320, 1322 (Fed. Cir. 2003). Naturally, an 

agency has no discretion to disregard binding regulations. 

E.g., 5 U.S.C. § 706(2). But proposal price-reasonableness 

analysis otherwise sits comfortably amid this discretionary

background. 

In Agile Defense, this court considered discretion in 

cost-realism analysis—a facet of proposal evaluation similar to price-reasonableness and also based in 

FAR 15.404-1. And there we endorsed the Court of Federal 

Claims’ view that “contracting agencies enjoy wide latitude 

in conducting the cost realism analysis.” Agile Def., 

959 F.3d at 1385–86 (cautioning against “unduly circumscrib[ing] a contracting officer’s discretion and hamstring[ing] a contracting agency’s efforts”).

These principles extend to price reasonableness too. 

Indeed, the Court of Federal Claims has observed as much. 

See infra section II.A.4. After all, the point of a price-reasonableness analysis is to protect the public from paying a 

price that is too high for what is being procured. See Agile 

Def., 959 F.3d at 1384. And what exactly is “reasonable” is 

a judgment based on the specifics of the government’s 

needs. 

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2 

Against this backdrop, we consider the interpretive 

question before us. We agree with the Court of Federal 

Claims: FAR 15.404-1(b)(2) and (3) are permissive, not prohibitive.

The FAR states that the government “may use various 

price analysis techniques and procedures to ensure a fair 

and reasonable price.” FAR 15.404-1(b)(2) (emphasis 

added); see FAR 2.101 (“May denotes the permissive.”). It 

explains that the listed techniques are nonlimiting “examples.” FAR 15.404-1(b)(2). Further, the provision states 

that the first two techniques are simply “preferred.” 

FAR 15.404-1(b)(3). “Preferred” expresses here a suggestion, not a strict hierarchy. In this context, “preferred” does 

not mean “required” but instead “encouraged.” See also, 

e.g., Webster’s Third New International Dictionary (1961) 

(defining “prefer” as “like better : value more highly”). It is 

more “should” than “shall.” See AT&T v. United States, 

307 F.3d 1374, 1379–80 (Fed. Cir. 2002) (interpreting regulations as a “caution,” “not a prohibition,” where text provided that a preferred type of contract conditionally 

“should be considered”); Qwest Corp. v. FCC, 258 F.3d 

1191, 1200 (10th Cir. 2001) (explaining that “should” conveys “recommended course of action” but does not imply obligation of “shall”).

DynCorp points to what it views as limiting prohibitory 

language: namely, that “if the contracting officer determines that information on competitive proposed prices or 

previous contract prices is not available or is insufficient to 

determine that the price is fair and reasonable, the contracting officer may use any of the remaining techniques as 

appropriate.” FAR 15.404-1(b)(3). Here we do not read “if” 

to mean “only if.” And at any rate (assuming that the information is “available”), the “if” clause at most asks for a 

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determination that the preferred technique is “insufficient 

to determine that the price is fair and reasonable.”8 

The nature of this supposed “determination” confirms 

our view. “Insufficient” in this context is a judgment call. 

The yardstick by which sufficiency is measured here is not 

some specific rule, formula, calculation, or detailed factfinding. Rather, it is the reasonable-discretion-informed 

appropriateness of the technique under the circumstances. 

In exercising her fact-specific judgment to select a priceanalysis technique, a contracting officer will reasonably 

view some to be suitable and some not—in a manner that 

may be implicit. FAR 15.404-1(b)(3) imposes no further requirement than that. The “if” provision, accordingly, operates not to cabin a contracting officer’s discretion but to 

give the preference whatever weight is due under the circumstances of a particular procurement. Of course, a contracting officer’s price analysis must be rational: the choice 

is committed to discretion, not whim. See 5 U.S.C. § 706. 

But the plain language of the provision itself is not prohibitive and does not conditionally restrict a contracting officer’s discretion. 

3 

We turn next to the FAR as a whole. See Antonin 

Scalia & Bryan A. Garner, Reading Law 167 (2012) (“The 

8 As the government observes, the text refers to the 

technique being “insufficient to determine that the price is

fair and reasonable,” not “whether the price is fair and reasonable” or “that the price is unreasonable.” See United 

States Br. 35–38. The government’s argument is that even 

if FAR 15.404-1(b)(3) were limiting, it would only be limiting if the contracting officer could declare an offeror’s price 

to be reasonable using the preferred techniques, preventing 

the government in that instance from using the other techniques to instead find the price unreasonable. 

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18 DYNCORP INTERNATIONAL, LLC v. US

text must be construed as a whole. . . . Context is a primary 

determinant of meaning. A legal instrument typically contains many interrelated parts that make up the whole.”). 

FAR 15.404-1(b)(3) is part of a larger set of related rules—

the Federal Acquisition Regulation. And the broader text 

of the FAR confirms that this language isn’t prohibitive.

To this end, it’s useful to look at the language that the 

FAR uses where it does prohibit or condition certain actions. For instance: “no person may.” See, e.g., FAR 2.101 

(“[T]he words ‘no person may . . .’ mean that no person is 

required, authorized, or permitted to do the act described.”). Or “shall not.” See, e.g., FAR 6.302-1(b) (“This 

authority shall be used, if appropriate, in preference to the

authority in 6.302-7; it shall not be used when any of the 

other circumstances is applicable.”).

It’s also revealing to look at the language the FAR uses 

when requiring action. For one: “shall.” See, e.g., 

FAR 2.101 (“Shall denotes the imperative.”); 

FAR 15.404-1(a)(2) (“Price analysis shall be used when certified cost or pricing data are not required . . . .” (emphasis 

added)); FAR 15.404-4(b)(1)(i) (“[The government] [s]hall 

use a structured approach for determining the profit or fee 

objective in those acquisitions that require cost analysis

. . . .” (emphasis added)). Or “must.” See, e.g., FAR 2.101 

(“Must (see ‘shall’).”). Similarly, the FAR at various points 

within a single provision uses both “shall” (a command) 

and “should” or “may” (a preference or permission). See, 

e.g., FAR 15.404-1(a); cf. Huston v. United States, 956 F.2d 

259, 262 (Fed. Cir. 1992) (“When, within the same statute, 

Congress uses both ‘shall’ and ‘may,’ it is differentiating between mandatory and discretionary tasks.”). 

What’s more, FAR 15.404-1(b) lacks a documentation 

requirement. Generally, “[c]ontracting officers are not obligated by the APA to provide written explanations for their 

actions.” Impresa, 238 F.3d at 1337. And elsewhere the 

FAR details where documentation of a determination is

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required. See, e.g., FAR 15.304(c)(3)(iii) (“Past performance need not be evaluated if the contracting officer documents the reason past performance is not an appropriate 

evaluation factor for the acquisition.”); FAR 15.208(e) (“The 

contracting officer must document the contract file when 

oral withdrawals are made.”); FAR 15.407-1(d) (“The contracting officer shall prepare a memorandum documenting 

both the determination and any corrective action taken as 

a result.”); see also Vectrus Br. 32–33 & n.8 (collecting examples). Such a requirement is absent here. 

Indeed, elsewhere the FAR uses far stronger language 

for the exact formulation that DynCorp argues here: a default rule prohibiting departure absent satisfying certain 

conditions. For example, the FAR instructs in source selections that past performance “shall be evaluated” as a 

factor, but “need not be evaluated if the contracting officer 

documents the reason past performance is not an appropriate evaluation factor for the acquisition.” 

FAR 15.304(c)(3)(i), (iii). 

Accordingly, the FAR drafters’ use of “preferred” and 

“may” here—without an express documentation requirement and against a discretionary proposal-evaluation 

backdrop—is consistent with the choice of technique being 

committed to a contracting officer’s discretion.

4 

Finally, we observe that other tribunals to encounter 

FAR 15.404-1 have viewed it the same way we do. Indeed, 

DynCorp has not identified any decision holding that 

FAR 15.404-1(b)(3) restricts agency discretion in the way it 

suggests. The Court of Federal Claims in Survival Systems, USA v. United States, in contrast, explained that 

FAR 15.404-1 simply “provides guidance” in a way that 

nonetheless “permits the agency broad discretion.” 

102 Fed. Cl. at 267. Specifically, FAR 15.404-1(b)(2) “permits the government discretion in its choice of method to 

determine price reasonableness.” Id. at 269. And in 

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20 DYNCORP INTERNATIONAL, LLC v. US

Overstreet Electric Co. v. United States, the court noted 

that the regulation “indicates that the [g]overnment has 

discretion in choosing which of several acceptable price 

analysis methods to employ.” 47 Fed. Cl. 728, 733 n.8 

(2000). So too in Alabama Aircraft Industries. 83 Fed. Cl. 

at 696 (“[The] FAR lacks an explicit directive to contracting 

agencies mandating the use of any particular analytical 

tool in evaluating the reasonableness and realism of an offeror’s price.”). And the Court of Federal Claims in this 

case agreed too. DynCorp II, 2020 U.S. Claims LEXIS 959, 

at *8–10. Though these views are not binding, they are 

consistent with ours. 

B 

In the alternative, even if the language of 

FAR 15.404-1(b)(3) were read to require a specific determination that the two “preferred” techniques were inadequate, in our view the contracting officer made that 

determination. Although it was not documented, it is clear 

from the record and was within the scope of the contracting 

officer’s discretion. Accordingly, the record is “sufficient to 

permit meaningful judicial review,” see Palantir USG, Inc. 

v. United States, 904 F.3d 980, 994 (Fed. Cir. 2018), and 

“the agency’s decisional path is reasonably discernible,” see

Wheatland Tube Co. v. United States, 161 F.3d 1365, 

1369–70 (Fed. Cir. 1998). 

1

FAR 15.404-1(b)(3) is not particularly demanding. It 

explains that “if the contracting officer determines that information on competitive proposed prices or previous contract prices is not available or is insufficient to determine 

that the price is fair and reasonable, the contracting officer 

may use any of the remaining techniques as appropriate to 

the circumstances applicable to the acquisition.” 

FAR 15.404-1(b)(3) (emphasis added). 

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DYNCORP INTERNATIONAL, LLC v. US 21

As an initial matter, DynCorp argues that the supposedly required “determination” concerns whether the underlying information is “insufficient” to compare prices. See 

Appellant’s Br. 35–36. And it contends that the information cannot be “insufficient” to compare prices here, as 

the record is full of competitive pricing information. See 

Appellant’s Br. 36. The Army used this information preprotest to determine that the lowest-priced offers were reasonable. Accordingly, the argument goes, the Army could 

have compared proposals and therefore could not have determined the underlying information to be insufficient to 

do so. This misses the point. “Insufficient” in this context 

means insufficient for determining price reasonableness 

overall. See FAR 15.404-1(b)(3). And that insufficiency is 

a value-laden consideration: for some procurements, an 

overall price comparison between proposals or a historical 

comparison might make sense; for some, it might not. 

Therefore, the question becomes whether it is discernible 

from the record that the Army itself viewed competitive or 

historical price comparisons to be insufficient to assess reasonableness.

2 

DynCorp argues that the record does not reflect the 

Army having determined that the two preferred price-analysis techniques were insufficient. We disagree. 

In February 2019, while proposals were being evaluated the first time around, the Army issued a memorandum for each region separately comparing the cost-plusfixed-fee portions to each other and the firm-fixed-price

portions to each other. J.A. 1069866–94. The Army found

adequate price competition in each region and that the lowest-priced offers were reasonable. J.A. 1069866–94. But it 

noted at the time that it might need further information to 

evaluate the other, higher-priced offers. See, e.g., 

J.A. 1069877; see also J.A. 1755951 (noting that it “reserved the right to request this information if needed to 

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22 DYNCORP INTERNATIONAL, LLC v. US

assess reasonableness of the proposed prices”). And indeed, when later analyzing all prices in December 2019, 

the Army did request further cost and pricing data from 

offerors and chose to analyze “data other than certified cost 

and pricing data”—i.e., data falling under FAR 15.404-

1(b)(2)(vii), a non-preferred technique. See J.A. 1753885, 

1755618, 1755715, 1755844, 1755951, 1772629. In doing 

so, it wrote that this other information was “needed to assess reasonableness.” J.A. 1753885, 1755618, 1755715, 

1755844, 1755951, 1772629. 

The decisional basis is clear. This was a complicated 

procurement in which each offeror proposed a different 

technical approach. Upon receiving that information, the 

agency documented its analysis at great length, specifically 

invoking FAR 15.404-1(b)(2)(vii). Accordingly, it is clear 

from the record that the contracting officer, in its discretion, viewed the “preferred” techniques to be insufficient to 

assess reasonableness. 

III 

DynCorp’s second argument is that the Army’s procurement decisions here were arbitrary and capricious for 

purportedly failing to address what DynCorp views as a 

fundamental problem: “dramatic disparities that separate[d] the prices of the offerors.” Appellant’s Br. 36–37. 

DynCorp argues that the Army failed to “examine the relevant data and articulate a satisfactory explanation for its 

action including a ‘rational connection between the facts 

found and the choice made.’” Appellant’s Br. 37 (quoting 

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29, 43 (1983)).

DynCorp accuses the Army of a “critical logical gap”—

namely, a supposed failure to “square its conclusion that 

all offerors’ prices were reasonable with the known price 

disparities.” Reply Br. 13. DynCorp’s view is that it is an 

“obvious problem” that all the proposed prices could be reasonable despite wide variation among them. Appellant’s 

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DYNCORP INTERNATIONAL, LLC v. US 23

Br. 29. And it insists that the Army “cannot coherently explain” how that can be. Id. at 4. As for the consequences 

of this alleged error, DynCorp insists that the consequence 

of accounting for that price disparity would likely have 

been a finding that DynCorp’s prices were unreasonable. 

From that finding, DynCorp says, would stem discussions 

and an opportunity to revise its proposal.

Appellees, for their part, suggest that “competing offerors’ prices in a best value procurement always vary”—a 

“banal fact” that means that, inevitably, “some proposals 

are more expensive than others.” E.g., Fluor Br. 37. There 

is simply no “fundamental problem” to address, they say. 

And they suggest that the disparities in price here all follow from differences in proposals’ technical approaches 

(differences all reasonable, all unchallenged, and all considered in the Army’s analysis).

Review in bid protests under the arbitrary-and-capricious standard is “highly deferential.” Glenn Def., 720 F.3d 

at 907 (quoting Advanced Data Concepts, Inc. v. United 

States, 216 F.3d 1054, 1058 (Fed. Cir. 2000)). Under it, we 

must “sustain an agency action evincing rational reasoning 

and consideration of relevant factors.” Advanced Data 

Concepts, 216 F.3d at 1058 (citing Bowman Transp., Inc. 

v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974)). 

And an “explicit explanation is not necessary . . . where the 

agency’s decisional path is reasonably discernible.” Wheatland Tube, 161 F.3d at 1369–70.

The Army did not ignore the price differences. Indeed,

it acknowledged that DynCorp had “the highest total proposed price when compared [with] the total proposed prices 

of the other offerors.” See J.A. 1124863–67 (memorandum 

discussing DynCorp’s total proposed prices). But it accounted for the differences—for instance, by noting differential labor hours and rates among offerors. Id.; see also, 

e.g., KBR Br. 38–39 (noting that the Army “reviewed the 

unique aspects of each offeror’s firm-fixed-price [portions] 

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24 DYNCORP INTERNATIONAL, LLC v. US

and assessed related differences in pricing” (discussing

J.A. 796–850, 975–1028, 1130–80, 1304–53, 1473–530, 

1650–86)). In some areas DynCorp proposed using more 

hours and higher labor rates—including, for example, a 

higher proportion of more-expensive expatriate hours. See 

J.A. 1124863–64. DynCorp’s technical choices were DynCorp’s prerogative. And DynCorp points to nothing specific 

in its pricing that was unreasonable given those choices. 

Overall, the Army determined that each offeror’s price 

was reasonable for its chosen technical approach. E.g., 

J.A. 975–83 (examining reasonableness of pricing for 

AFRICOM task order firm-fixed-price portion for DynCorp, 

taking into account direct labor, various direct costs, direct 

labor overhead, global-solutions overhead, administrative 

costs, and proposed profit, etc.); id. at 983 (concluding that 

the “proposed price . . . for the [firm-fixed-price] portion of 

the AFRICOM effort is reasonable for DynCorp’s proposed 

approach”). It also determined that each offeror’s technical 

approach was appropriate, and DynCorp does not challenge those findings. At bottom, DynCorp’s challenge 

amounts to an argument that the technical approach it 

chose was unreasonable, but it fails to identify any error in 

the Army’s view that its proposed technical approach was 

acceptable. The different (but reasonable) prices resulted 

from different (but reasonable) technical approaches. 

There was therefore no problematic aspect of the price disparity to address, and therefore no “important aspect of the 

problem” left unconsidered. Cf. Motor Vehicle Mfrs. Ass’n, 

463 U.S. at 43. To the extent that DynCorp challenges the 

contracting officer’s choice of particular price-analysis 

techniques as arbitrary or capricious, we are not convinced.

DynCorp also complains that the Army irrationally did 

not explain why it didn’t employ a simple proposal-to-proposal price comparison. But we don’t see why it must (or 

even should) have. As we explained above, the regulations 

didn’t require that. And the context is clear: This was a 

sweeping procurement to establish an involved logistics 

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DYNCORP INTERNATIONAL, LLC v. US 25

support program in various operational theaters around 

the globe, with complex technical requirements and substantial latitude afforded to the offerors to figure out how 

they would accomplish them. Naturally, prices would vary. 

And the Army had discretion to view a crude price-tag comparison as insufficient and instead to pick from among 

other price-analysis techniques as appropriate to the specifics. See, e.g., J.A. 983 (picking FAR 15.404-1(b)(2)(vii)). 

In the end, the Army explained its analysis in detail in a 

way that permits meaningful review on the merits. DynCorp alleges no errors in that price analysis other than its 

favored technique not having been used. And that doesn’t 

clear the high hurdle to declaring the Army’s approach untethered to rationality. 

Finally, DynCorp insists that the Army’s price-reasonableness analysis on remand was merely an impermissible

post hoc rationalization. It’s true that an agency cannot 

rely on a new rationale for an old decision. See, e.g., Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 419 

(1971). But that isn’t what the Army did. Rather, on remand it made new determinations about price reasonableness—ones that the Court of Federal Claims had concluded 

it hadn’t made before. It declined to revisit the overall 

award, but in the context of this remand, the only basis for 

doing so would have been the unreasonableness of one of 

the offerors’ prices.

Accordingly, based on the record and the agency’s discretion in this area, we are not persuaded that the Army’s 

procurement was arbitrary or capricious.

CONCLUSION

We have considered DynCorp’s remaining arguments 

but find them unpersuasive. DynCorp’s proposed price was 

high. But it was not unreasonably high for the technical 

approach it proposed. In so finding, the government did 

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26 DYNCORP INTERNATIONAL, LLC v. US

not violate FAR part 15 and did not act irrationally. We 

therefore affirm.

AFFIRMED

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