In the United States Court of Federal Claims

No. 20-636

(Filed: 22 September 2020*)

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

ACE-FEDERAL REPORTERS, INC., *

*

Plaintiff, *

*

v. * Bid protest; International Trade Commission 

* (“ITC”); Cryptographic Module Validation

THE UNITED STATES, * Program (“CMVP”); supplementation of the

* administrative record

Defendant, *

*

and *

*

HERITAGE REPORTING CORPORATION, *

*

Defendant-Intervenor. *

*

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

Michael D. McGill, of Arnold & Porter Kaye Scholer, LLP, with whom was Thomas A. 

Pettit, of Washington, DC, for plaintiff.

Eric E. Laufgraben, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, 

Department of Justice, with whom were Ethan P. Davis, Acting Assistant Attorney General, 

Robert E. Kirschman, Jr., Director, and Douglas K. Mickle, Assistant Director, all of 

Washington, DC for defendant. Gina K. Grippando, Assistant General Counsel, U.S. 

International Trade Commission, of counsel.

John E. McCarthy Jr., of Crowell & Moring LLP, with whom were Mark A. Ries, Evan 

D. Wolff, and Christopher D. Garcia, all of Washington, DC, for defendant-intervenor.

OPINION AND ORDER

HOLTE, Judge.

* This order was originally filed under seal on 4 September 2020 pursuant to the protective order in this case. The 

Court provided parties the opportunity to review this opinion for any proprietary, confidential, or other protected 

information and submit proposed redactions no later than 18 September 2020. The parties jointly proposed 

redactions on 18 September 2020. The Court accepts the parties’ proposed redactions and reissues the order, with 

redacted language replaced as follows: “[XXXXX].”
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Plaintiff, Ace-Federal Reporters, Inc. (“plaintiff,” “Ace-Federal,” or “Ace”) brings this 

bid protest challenging the U.S. International Trade Commission’s (“ITC”) award of a contract 

for court reporting services to defendant-intervenor Heritage Reporting Corporation (“defendantintervenor,” “Heritage,” or “HRC”) under Solicitation No. 34300019Q007. Pending before the 

Court are plaintiff’s motion for judgment on the administrative record and motion to supplement 

the administrative record, as well as the government’s and defendant-intervenor’s respective 

cross-motions for judgment on the administrative record. For the following reasons, the Court 

DENIES plaintiff’s motion to supplement the administrative record, DENIES plaintiff’s motion 

for judgment on the administrative record, and GRANTS the government’s and defendantintervenor’s respective cross-motions for judgment on the administrative record.

I. Background

A. The Solicitation

On 6 June 2019, the ITC issued Request for Quotation (“RFQ” or “Solicitation”) No. 

34300019Q0017 “to acquire court reporting services” to “support the Commission’s legal 

proceedings.” Admin. R. at 8, ECF No. 19 (“AR”). The RFQ contemplated “award of a Time 

and Materials contract, with an established ceiling.” Id. The RFQ specified: “This is a no-cost 

contract for the Government. The winner bidder will receive compensation through sales of 

services and reports to the public. The Government will not be paying for routine court reporting 

services.” Id. (emphasis omitted). Additionally, this procurement “is a 100% Small Business 

Set Aside, under [North American Industry Classification System (“NAICS”)] Code 561492, 

Court Reporting and Stenotype Services” with a $15 million size standard. Id.

The RFQ required the contractor to “furnish all personnel, equipment, materials, 

incidentals[,] and other resources necessary to satisfy the Commission’s requirements for Court 

Reporting Services, and any other services the Contractor renders under this Contract, within the 

scope of the [Statement of Work (“SOW”)].” Id. at 9. The SOW provided, “[t]he Contractor 

shall provide the Commission with court reporting services for Commission-held proceedings 

when the Presiding Official or the Contracting Officer’s Representative (“COR”)” provides the 

contractor advance notice, as outlined in the SOW. Id. at 9–10. The SOW also provided for

depositions, real-time court reporting, authentication of transcripts, production and delivery of 

transcripts to the Commission, and sales to the parties and members of the public, among other 

requirements. See AR at 10–22. Most relevant to this protest, the SOW provided:

The Contractor shall produce all paper-copy transcripts on white paper measuring 

8-1/2 inches by 11 inches. Each full page of such transcript shall contain no less 

than 25 lines of typewriting, 10 letters to the inch, double spaces between lines, 

with a binding margin of 1-1/2 inches at the left side and a margin of 3/8 of an inch 

on the right side. On each page, the lines shall fill as nearly as practicable the spaces 

between the margins.

Id. at 19. Also relevant to this protest, under the heading of “Digital Security,” the RFQ stated:
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Encryption utilizing Federal Information Processing Standards Publication (FIPS 

PUB) 140-3, Security Requirements for Cryptographic Modules (as updated), is 

applicable to the services provided under this contract, as follows. The Contractor 

shall employ encryption utilizing FIPS 140-3 validated cryptographic modules 

operated in the FIPS-approved mode . . . .

Id. at 22.

Offerors would be evaluated under three factors: (1) Technical; (2) Past Performance; 

and (3) Price. Id. at 27–28. The Technical factor comprised the following three subfactors: (a) 

Use of Technology; (b) Management Plan; and (c) Technical Approach. Id. at 28–29. Most 

relevant to this protest, under the Use of Technology subfactor, the RFQ stated: “The offeror 

shall propose cryptographic modules and shall state the National Institute of Standards and 

Technology (NIST) Cryptographic Module Validation Program (CMVP) certificate number(s) of 

the cryptographic modules that are being proposed.” Id. at 28 (emphasis omitted). For 

evaluation of the Past Performance factor, the RFQ explained:

The offeror shall submit a minimum of three (3) past experience/past performance 

references of similar work and scope. Evaluation will be based on the relevancy 

and quality of recent efforts accomplished by the offeror. Other information that 

may be obtained, including how well the offeror cooperated with the client, the 

quality and timeliness of work delivered, and if costs were properly controlled (if 

applicable) will also be evaluated.

Past performance information will also be accessed by the Government from 

available online databases, including sources such as the Past Performance 

Information Retrieval System (PPIRS); Federal Awardee Performance and 

Integrity Information System (FAPIIS); as well as any other source for past 

performance information available to the Contracting Officer.

AR at 29.

Concerning award and best value analysis, the RFQ provided:

Contract award shall be made to the responsible offeror whose quotation, in 

conforming to this Request for Quotation, provides the best value to the 

Government. Since it is in the best interest of the Government to consider award 

to other than the lowest priced offeror, or other than the highest technically rated 

offeror, the Government will use a tradeoff source selection approach to determine 

the proposal that represents the best value to the Government. Technical is the most 

important Factor. Past Performance is not as important as Technical, but more 

important than Price. Price is the least important Factor. Technical and Past 

Performance, when combined, [are] more important than Price.

Id. at 29–30. The three subfactors under the Technical Factor are “equally weighted in the 

development of the overall Technical Factor rating.” Id. at 30. For the Use of Technology 
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subfactor, the ITC would “evaluate the offeror’s ability to meet the Federal Information 

Processing Standards Publication (FIPS PUB) 140-3, Security Requirements for Cryptographic 

Modules.” Id. (emphasis omitted). 

In evaluating the proposals, the ITC would assign a strength, weakness, or deficiency to 

the proposals. Id. at 32. A strength is “[a] proposal attribute that increases the likelihood of 

successful Task Order performance, or provides an approach directly related to the requirement 

that exceeds the minimum expectation.” Id. A weakness “means a flaw in the quotation that 

increases the risk of unsuccessful Task Order performance.” AR at 32. A deficiency “is a 

material failure of a quotation to meet a Government requirement or a combination of significant 

weaknesses in a quotation that increases the risk of unsuccessful Order performance to an 

unacceptable level.” Id.

The ITC additionally used the following adjectival ratings to evaluate proposals: 

Outstanding, Good, Acceptable, Marginal, and Unacceptable. An Outstanding rating means the 

“[p]roposal indicates an exceptional approach and understanding of the requirements and 

contains multiple strengths.” Id. A Good rating means the “[p]roposal indicates a thorough 

approach and understanding of the requirements and contains at least one strength.” Id. An 

Acceptable rating means the “[p]roposal indicates an adequate approach and understanding of 

the requirements.” Id. A Marginal rating means the “[p]roposal has not demonstrated an 

adequate approach and understanding of the requirements.” Id. Lastly, an Unacceptable rating 

means the “[p]roposal does not meet the requirements of the solicitation and, thus, contains one 

or more deficiencies and is unawardable.” AR at 32.

On 25 June 2019, the ITC issued Amendment 001 to the Solicitation, which answered 

questions offerors asked about the terms. See id. at 61, 67. Question 9 stated:

Encryption utilizing FIPS 140-3 is applicable to the services provided in this RFQ. 

Our understanding is the effective date of FIPS 140-3 is September 22, 2019 and 

testing begins September 22, 2020. Will FIPS 140-2 be acceptable until 

implementation of FIPS 140-[3]?

Id. at 63. The ITC answered it “will evaluate cryptographic solutions using the relevant 

standard. The current NIST CMVP evaluates 140-2. 140-2 is acceptable.” Id.

B. Plaintiff’s Proposal

On 8 July 2019, plaintiff submitted its proposal in response to the Solicitation. Id. at 75. 

Of relevance here, responding to the requirements under the Technical factor, plaintiff noted it 

“will not have any difficulty meeting the current FIPS 140-2 security requirements.” Id. at 79. 

“To prepare for FIPS 140-3 implementation,” plaintiff stated it “is working closely with [its] 

vendors who provide cryptographic modules to ensure that they will offer software upgrades to 

meet FIPS 140-3 requirements once testing begins” in September 2020. AR at 79. Addressing 

FIPS 140-2 compliance for real-time court reporting, plaintiff proposed a wireless WIFI option 

that is FIPS 140-2 compliant [XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX] Plaintiff specified: [XXXXXXXXX
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XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX] Plaintiff similarly provided the 

CMVP Certificate numbers for other equipment in the proposal. See id. at 81, nn.3–4.

Plaintiff’s proposal also highlighted its past performance: “As the incumbent contractor 

to the ITC for the past 5 1⁄2 years, there can be no better indicator of our ability to meet—and 

exceed—the ITC’s performance requirements nor no contract more relevant.” Id. at 89. Plaintiff 

emphasized the importance of relevant experience due to the “demanding . . . technical 

requirements” of this contract. Id. For example, “[o]ther than certain government intelligence 

agencies, to our knowledge no other reporting contract has the FIPS 140-2/140-3 digital security 

encryption mandate,” which plaintiff would be able to meet. AR at 89.

Five evaluators—the Federal Energy Regulatory Commission’s Office of Administrative 

Law Judges, the ITC, two law firms, and the District of Columbia Bar—submitted past 

performance questionnaires attesting to plaintiff’s performance. See id. at 103–08. Most of the 

evaluations rated plaintiff’s performance “Exceptional,” except the ITC’s evaluation rated 

plaintiff as “Very Good.” See id. 

C. Defendant-Intervenor’s Proposal

Defendant-intervenor submitted a timely proposal on 8 July 2019. See id. at 109. Most 

relevant here, for the technology used in real-time court reporting, defendant-intervenor stated, 

“[a] Cisco 881W router is used running in FIPS 140-2 compliant mode.” Id. at 113. CMVP 

Certificate No. 1700, which corresponds to the Cisco 881W router, indicates the router has a 

“historical” validation. Id. at 2899. The NIST website states, “[t]he referenced cryptographic 

module should not be included by Federal Agencies in new procurements. Agencies may make a 

risk determination on whether to continue using this module based on their own assessment of 

where and how it is used.” AR at 2899.

Defendant-intervenor also explained how its technology operates real-time court 

reporting, which defendant-intervenor characterized as FIPS 140-2 compliant, and it provided 

the CMVP Certificate numbers for all proposed equipment and modules. Id. at 113–14. 

Defendant-intervenor also provided links to the NIST website confirming the FIPS 140-2 

compliance of its hardware and software configurations. Id. at 115.

Four evaluators—the Supreme Court of the United States, the Occupational Safety Health 

Review Commission (“OSHRC”), the ITC, and the Environmental Protection Agency—

submitted past performance questionnaires for defendant-intervenor. See id. at 150–53. Almost 

all ratings were “Exceptional,” with only a few “Very Good” ratings. Id.

D. Proposal Evaluation
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The Technical Evaluation Team (“TET”), which comprised four members, each 

evaluated the proposals according to an Individual TET worksheet.1 See id. at 164–72. Under 

the first factor, Technical, the TET rated plaintiff’s proposal “overall Good.” AR at 185. 

Plaintiff’s proposal had “two noted strengths . . . and no weaknesses or deficiencies.” Id. The 

first strength fell under “Factor 1b (Management Plan),” and the TET noted plaintiff’s “proposed 

management plan thoroughly addresses its ability to staff the project and builds in redundancies 

thereby reducing risk to the government.” Id. Plaintiff’s second strength fell under “Factor 1c 

(Technical Approach),” for which the TET observed plaintiff’s “technical approach shows a 

comprehensive grasp of the requirements and provides detailed examples of its ability to perform 

and deliver the court reporting services.” Id. Next, the TET rated plaintiff “Outstanding” in the 

second factor, Past Performance. Id. at 186. Plaintiff had “numerous strengths,” including 

mostly Exceptional ratings in each category, “with notes of quality and expertise in work.” Id. 

There were no weaknesses or deficiencies for past performance. Id. Plaintiff’s total evaluated 

price was $4,257,602. AR at 187.

The TET similarly rated defendant-intervenor as “overall Good” under the Technical 

Factor, noting defendant-intervenor had one strength and no weaknesses or deficiencies. Id. at 

189–90. Defendant-intervenor had one technical strength because its “proposed use of 

technology highlights their proposed hardware/software elements and also technology related 

business processes. It shows a thorough grasp of the technical requirements and reduces risk to 

the federal government by providing a detailed and auditable technical implementation.” Id. at 

190. The TET also assigned defendant-intervenor an “Outstanding” rating under the second 

factor. Id. The TET listed two strengths of defendant-intervenor’s past performance, which 

were exceptional ratings in every category on questionnaires submitted by the Supreme Court 

and OSHRC and defendant-intervenor’s real-time court reporting experience with the Supreme 

Court. Id. at 191. Defendant-intervenor’s total evaluated price was $3,885,500. Id. at 192.

The CO’s best value determination observed plaintiff and defendant-intervenor were 

assigned identical adjectival ratings for the Technical and Past Performance factors. AR at 193. 

The CO explained, “[b]ased on the identical ratings, the Price Factor became the deciding Factor 

for award, with Heritage offering 9% ($372,102.00) less than Ace.” Id. Further, “[w]hile Ace 

received 2 Strengths in the Technical Factor, which was the most important Factor, versus 

Heritage’s 1 Strength, there was no material difference in their Technical quotations and did not 

amount to a higher Adjectival rating, or discussion of their Technical Factor rating.” Id.

(emphasis omitted). The CO therefore reasoned, “the 1 extra Strength that Ace received did not 

amount to any perceived benefit of 1 [offeror] over the other,” and “[t]he higher Price offered by 

Ace was not . . . perceived to offer a better value to the Government.” Id. The CO consequently 

“determined that award of a Contract to Heritage Reporting Corporation, a Washington, DC 

women owned small business, is in the best interest of the Government.” Id.

On 29 July 2019, the CO informed plaintiff by email it was not a successful offeror on 

the subject solicitation. Id. at 195. On 31 July 2019, the CO notified defendant-intervenor by 

email the government awarded it the contract. AR at 197. 

1 Three offerors submitted quotations, but the record only contains documentation related to plaintiff’s and 

defendant-intervenor’s proposals. See AR at 182.
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E. First Government Accountability Office (“GAO”) Protest and Corrective Action

On 12 August 2019, plaintiff filed a GAO protest of the ITC’s award of the contract to 

defendant-intervenor. Id. at 310. Plaintiff asserted the following grounds: (1) defendantintervenor did not comply with the solicitation’s pricing requirements; and (2) the ITC’s decision 

to award the contract to defendant-intervenor was unreasonable and inconsistent with the 

solicitation. See Id. at 325–35. On 26 September 2019, plaintiff filed a supplemental protest, 

asserting the following additional grounds: (1) “the ITC’s evaluation of Heritage’s proposal and 

its best value decision failed to account for Heritage’s inability to comply with the transcript 

formatting requirements and the impact on Heritage’s pricing;” (2) “Heritage’s proposal was 

technically unacceptable because Heritage proposed equipment that did not comply with the 

RFQ’s encryption requirements;” and (3) “Heritage’s proposal was technically unacceptable 

because it showed Heritage would not comply with FAR 52.219-14.” Id. at 919–24.

On 5 November 2019, GAO conducted alternative dispute resolution (“ADR”) of the 

protest. Id. at 1731. The next day, 6 November 2019, the ITC notified GAO “[i]n response to 

the outcome prediction ADR session on November 5, 2019, [the ITC] intends to take corrective 

action and will file the necessary notice by close of business on November 8, 2019.” Id. at 1732. 

On 8 November 2019, ITC submitted a memorandum to GAO detailing ITC’s intended 

corrective action and requested “GAO dismiss the subject protest as academic.” AR at 1733–34. 

The memorandum listed the following actions the ITC would take as part of its corrective action:

1. The USITC will re-evaluate both offerors’ proposals under RFQ Factor 1: 

Technical, a. Use of Technology, specifically considering the offerors’ proposed 

use of encryption technology;

2. The USITC will assign relative weight to that factor accordingly and will then 

conduct a trade-off analysis to determine which offeror represents the best value to 

the government. The trade-off analysis will be based on the proposals’ relative 

strengths and weaknesses, as well as price, in accordance with the Federal 

Acquisition Regulations (FAR), statute, Comptroller General decisions, and other 

case-law precedent; and

3. The USITC will document the re-evaluation and subsequent source-selection 

decision.

Id. at 1735–36.

On 12 November 2019, “to preserve its rights,” plaintiff submitted its objections to the 

proposed corrective action to GAO. Id. at 1737. Plaintiff asserted the following objections: (1) 

“the corrective action is too narrow;” (2) “the ITC’s new cost-technical tradeoff and best-value 

decision will be based on the same misleading and inaccurate price delta between Ace-Federal’s 

and Heritage’s proposals;” and (3) “the ITC’s notice is ambiguous in stating that the agency will 

‘assign relative weight to that factor accordingly.’” Id. at 1737–38. Plaintiff also objected to the 

ITC’s request for GAO to dismiss the protest as academic. Id. at 1740.
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On 15 November 2019, GAO issued its decision dismissing plaintiff’s protest. AR at 

1742–43. GAO noted the ITC “informed our Office that it intends to take corrective action by 

reevaluating vendors’ quotations under the portion of the technical factor relating to the 

solicitation’s encryption requirements and making a new source selection decision.” Id. at 1742. 

GAO also stated the ITC’s “notice of corrective action describes how the agency’s action renders 

the protest academic,” but plaintiff’s objection to the corrective action “fails to adequately 

explain how the protest is not rendered academic by the proposed corrective action.” Id. at 

1742–43. GAO concluded “[t]he agency’s corrective action renders the protest academic” and 

consequently dismissed the protest. Id. at 1743.

As part of the corrective action, the ITC’s Chief Information Security Officer (“CISO”) 

evaluated the offerors’ FIPS 140-2 compliance. Id. at 2309–10. The CISO first clarified:

Offers were evaluated by reviewing the Cryptographic Module Validation Program 

(CMVP) certificate number(s) in each proposal to confirm FIPS 140-2 compliance. 

A FIPS 140 certification can have three states (“active,” “historical,” or “revoked”). 

For the purposes of the evaluation certification, values of “active” or “historical” 

are considered complaint; values of “revoked” or no valid certification are 

considered non-compliant.

Id. at 2309. The CISO also cited NIST guidance concerning validation certificate status:

If a validation certificate is marked as historical, Federal Agencies should not 

include these in new procurement. This does not mean that the overall FIPS-140 

certificates for these modules have been revoked[;] rather it indicates that the 

certificates and the documentation posted with them are more than 5 years old and 

have not been updated to reflect latest guidance and/or transitions, and may not 

accurately reflect how the module can be used in FIPS mode. Agencies may make 

a risk determination on whether to continue using the modules on this list based on 

their own assessment of where and how the module is used.

AR at 2309 (emphasis and internal quotation marks omitted). The CISO applied this guidance in 

his evaluation and explained:

[W]e distinguished between procurements of hardware . . . and procurements of 

services . . . . The Commission’s interpretation of NIST’s guidance is that 

procurements for new hardware/software should generally avoid equipment with 

FIPS140 certificates marked as “historical” in new procurements. However, 

NIST’s guidance provides that agencies may make a risk determination on whether 

to continue using this module based on their own assessment of where and how it 

is used. The evaluation team does not interpret this language as directed at 

procurement of services. Given the complexity of service provider systems and the 

fact that those service provider systems are expected to evolve over time and 

replace equipment as needed, “historical” designations are considered compliant 

for the purposes of this evaluation.
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Id. at 2310. The CISO also found support for this distinction between procurements of goods 

rather than services in FIPS 140-3. Id. In a section titled “Implementation,” the regulation 

provides “‘[a]gencies should develop plans for the acquisition of products that are complaint 

with FIPS 140-3; however, agencies may purchase any of the products on the CMVP validated 

modules list.’” Id. (emphasis in original) (quoting FIPS 140-3, Security Requirements for 

Cryptographic Modules, NIST Computer Security Resource Center, 

https://csrc.nist.gov/publications/detail/fips/140/3/final (Mar. 22, 2019)). Lastly, the CISO 

reasoned, “because FIPS 140 certificates were evaluated as a Boolean (i.e., compliant or noncompliant) no additional weight/emphasis was given for sub-values of ‘active’ or ‘historical.’” 

Id. Therefore, because both plaintiff and defendant-intervenor proposed equipment with only 

“active” or “historical” certificates, the CISO found both offerors were “100% Compliant” with 

FIPS 140-2. Id.

The CO’s reevaluation of the proposals was substantively identical to the initial 

evaluation. The government assigned Plaintiff a “Good” rating under the Technical factor and 

“Outstanding” rating under the Past Performance factor, both with the same stated strengths. AR 

at 1747–49. Likewise, the government assigned defendant-intervenor a “Good” rating under the 

Technical factor and an “Outstanding” rating under the Past Performance factor, both with the 

same strengths. Id. at 1752–53. The CO provided the same reasoning as the initial best value 

determination and concluded award of the contract to defendant-intervenor provided the best 

value to the government. Id. at 1755. On 8 January 2020, the CO informed plaintiff and 

defendant-intervenor of the award decision following the corrective action. Id. at 1756–57.

F. Second GAO Protest

On 16 January 2020, plaintiff filed a second protest with GAO. Id. at 1762. Plaintiff 

asserted the following grounds: (1) “The ITC’s award to Heritage was improper because 

Heritage’s proposal was technically unacceptable on account of its noncompliant router;” (2) 

“The ITC’s evaluation of Heritage’s proposal and its best-value decision blatantly ignored the 

fact that Heritage cannot comply with the solicitation’s mandatory transcript formatting 

requirements and consequently charges more per page than Ace-Federal;” (3) “The ITC’s bestvalue decision was unreasonable because it failed to account for Heritage’s poor past 

performance and Ace-Federal’s superior past performance;” and (4) “Heritage’s proposal is 

unacceptable because Heritage has no intention of complying with FAR 52.219-14, Limitations 

on Subcontracting.” Id. at 1779, 1784, 1787, 1790. On 28 February 2020, plaintiff filed a 

supplemental protest arguing “[t]he ITC unreasonably assigned Heritage’s proposal a strength 

for its ‘digital security’ after concluding that the solicitation’s digital security requirements are 

inapplicable.” AR at 2892.

On 23 April 2020, GAO issued its decision denying plaintiff’s protest. See id. at 3655–

56. First, GAO determined the ITC’s evaluation under the Use of Technology subfactor was 

reasonable and consistent with the RFQ because the ITC reasonably interpreted NIST guidance 

as discretionary and the RFQ did not require the ITC to consider an active CMVP validation as a 

strength over a historical CMVP validation. Id. at 3662–63. Second, GAO stated defendantintervenor’s compliance with transcript formatting requirements is a matter of contract 
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administration not properly raised in a bid protest, and plaintiff did not “demonstrate[] that there 

was significant countervailing evidence reasonably known to the agency evaluators that should 

have created any . . . doubt” that defendant-intervenor would comply with the requirements. Id.

at 3663–64. Next, GAO found the ITC’s “evaluation of the awardee’s past performance was 

reasonable and consistent with the terms of the RFQ” because defendant-intervenor’s references 

provided excellent ratings of its performance and it “received higher past performance ratings 

than [plaintiff] for its previous work with [the ITC].” Id. at 3666. Additionally, to the extent the 

ITC knew of defendant-intervenor’s purported historic noncompliance with transcript formatting 

requirements, GAO found “no basis in the record . . . to conclude that the evaluators were aware, 

or should have been aware, of complaints regarding Heritage’s formatting of transcripts.” Id. at 

3667. Lastly, the record did not support plaintiff’s contention defendant-intervenor would not 

comply with the subcontracting limitations codified in FAR 52.219-14. AR at 3668.

G. Procedural History Before This Court

On 22 May 2020, plaintiff filed its complaint in this protest. See Compl., ECF No. 1. On 

26 May 2020, defendant-intervenor filed a motion to intervene, which the Court granted the 

same day. See Mot. by Heritage Reporting Corp. to Intervene as Def., ECF No. 8; Order, ECF 

No. 9. Pursuant to the Court’s 26 May 2020 order, on 28 May 2020, the parties filed a joint 

status report with a proposed schedule. See Order, ECF No. 9; Status Report, ECF No. 10. The 

Court held an initial status conference on 29 May 2020. See Order, ECF No. 9. Also on 29 May 

2020, defendant-intervenor filed a motion for protective order, which the Court granted on 

2 June 2020, along with setting the briefing schedule. See Intervenor-Def.’s Mot. for Protective 

Order, ECF No. 11; Order, ECF No. 12.

On 5 June 2020, the government filed the administrative record. See AR. On 22 June 

2020, plaintiff filed a motion to supplement the administrative record and its motion for 

judgment on the administrative record. See Pl.’s Mot. to Suppl. Admin. R., ECF No. 24 (“Mot. 

to Suppl. AR”); Pl.’s Mot. for J. on Admin. R., ECF No. 25 (“Pl.’s MJAR”). On 10 July 2020, 

the government and defendant-intervenor filed their respective cross-motions for judgment on 

the administrative record, responses to plaintiff’s motion for judgment on the administrative 

record, and responses to plaintiff’s motion to supplement the administrative record. See Def.’s 

Cross-Mot. for J. on Admin. R., & Combined Resp. to Pl.’s Mots. for J. on Admin. R. & Suppl. 

Admin. R., ECF No. 30 (“Def.’s Cross-MJAR & Resp.”); Def.-Intervenor Heritage Reporting 

Corp.’s Resp. to Pl.’s Ace-Federal Reporters, Inc.’s Mot. for J. on Admin. R. & Cross-Mot. for J. 

on Admin. R., ECF No. 31 (“Def.-Intervenor’s Cross-MJAR”); Intervenor-Def.’s Opp’n to Pl.’s 

Mot. to Suppl. Admin. R., ECF No. 32 (“Def.-Intervenor’s Resp. to Mot. to Suppl. AR”). On 

20 July 2020, plaintiff filed its responses to the government’s and defendant-intervenor’s 

respective cross-motions and replies to the government’s and defendant-intervenor’s respective 

responses to plaintiff’s motion for judgment on the administrative record. See Pl.’s Combined 

Resps. to Def.’s and Def.-Intervenor’s Cross-Mots. for J. on Admin. R. & Replies to Def.’s and 

Def.-Intervenor’s Resps. to Pl.’s Mot. for J. on Admin. R., ECF No. 35 (“Pl.’s Resp. & Reply”). 

On 30 July 2020, the government and defendant-intervenor filed their respective replies in 

support of their cross-motions for judgment on the administrative record. See Def.-Intervenor 

Heritage Reporting Corp.’s Reply in Supp. of Cross-Mot. for J. on Admin. R., ECF No. 37 

(“Def.-Intervenor’s Reply”); Def.’s Reply in Supp. of Cross-Mot. for J. on Admin. R., ECF No. 
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38 (“Def.’s Reply”). The Court held oral argument on the parties’ cross-motions for judgment 

on the administrative record and plaintiff’s motion to supplement the administrative record on 

18 August 2020. See Order, ECF No. 20.

II. Legal Standards

A. Bid Protest Jurisdiction & APA Standard of Review

The Tucker Act provides this Court jurisdiction to “render judgment on an action by an 

interested party objecting to a solicitation by a Federal agency for bids or proposals for a 

proposed contract or to a proposed award or the award of a contract or any alleged violation of 

statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. 

§ 1491(b)(1). In rendering such judgment, this Court “review[s] the agency’s decision pursuant 

to the standards set forth in section 706 of title 5.” Id. § 1491(b)(4). “Among the various 

[Administrative Procedure Act] standards of review in section 706, the proper standard to be 

applied in bid protest cases is provided by 5 U.S.C. §706(2)(A): a reviewing court shall set aside 

the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law.’” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350–51 

(Fed. Cir. 2004) (citing Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057–58 

(Fed. Cir. 2000)). Under this standard, “a court is not to substitute its judgment for that of the 

agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 

43 (1983). “Courts have found an agency’s decision to be arbitrary and capricious when the 

agency ‘entirely failed to consider an important aspect of the problem, offered an explanation for 

its decision that runs counter to the evidence before the agency, or [the decision] is so 

implausible that it could not be ascribed to a difference in view or the product of agency 

expertise.’” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. 

Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc., 463 U.S. at 43). “The arbitrary and 

capricious standard applicable here is highly deferential” and “requires a reviewing court to 

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. Arkansas-Best 

Freight Sys., Inc., 419 U.S. 281, 285 (1974)).

B. Supplementation of the Administrative Record

Appendix C of the Rules of the Court of Federal Claims (“RCFC”), which establishes 

this Court’s bid protests procedures, lists twenty-one examples of the possible “relevant core 

documents” which should be produced in the administrative record. RCFC App’x C ¶ 22. The 

Court may order the production of additional documents as part of the administrative record. Id.

¶ 24.

“It is well settled that the ‘primary focus’ of the court’s review of agency decision 

making ‘should be the materials that were before the agency when it made its final decision.” 

Joint Venture of Comint Sys. Corp. v. United States, 100 Fed. Cl. 159, 166 (2011) (quoting Cubic 

Applications, Inc. v. United States, 37 Fed. Cl. 345, 349–50 (1997)). “[T]o perform an effective 

review pursuant to the [Administrative Procedure Act (‘APA’)], the court must have a record 

containing the information upon which the agency relied when it made its decision as well as any 
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documentation revealing the agency’s decision-making process.” Vanguard Recovery Assistance 

v. United States, 99 Fed. Cl. 81, 92 (2011) (citing Citizens to Preserve Overton Park, Inc. v. 

Volpe, 401 U.S. 402, 420 (1971)). The Federal Circuit has recognized “the parties’ ability to 

supplement the administrative record is limited.” Axiom Res. Mgmt., Inc. v. United States, 564 

F.3d 1374, 1379 (Fed. Cir. 2009). “The purpose of limiting review to the record actually before 

the agency is to guard against courts using new evidence to ‘convert the “arbitrary and 

capricious” standard into effectively de novo review.’” Id. at 1380 (quoting Murakami v. United 

States, 46 Fed. Cl. 731, 735 (2000), aff’d, 398 F.3d 1342 (Fed. Cir. 2005)). “Thus, 

supplementation of the record should be limited to cases in which ‘the omission of extra-record 

evidence precludes effective judicial review.’” Id. (quoting Murakami, 46 Fed. Cl. at 735).

“In applying this ‘effective judicial review’ test, this court has consistently understood 

the test as enabling supplementation when necessary, not when merely convenient.” State of 

N.C. Bus. Enters. Program v. United States, 110 Fed. Cl. 354, 361 (2013) (emphasis added). 

Another judge of this Court provided the following summary of examples when information may 

be necessary for effective judicial review:

Such information might include tacit knowledge possessed by offeror and agency 

personnel of a highly technical and complex nature, requiring explication via 

affidavits or expert testimony. Upon a proper showing, discovery might be allowed 

seeking information intentionally left out of the record, such as evidence of bias or 

bad faith. And the record may be supplemented with relevant information, 

contained in the procurement files or generally known in an industry or discipline, 

which was inappropriately ignored by an agency. These categories all concern 

information that is necessary for effective judicial review, because they reflect what 

was or should have been considered by the agency.

East West, Inc. v. United States, 100 Fed. Cl. 53, 57 (2011).

Following the Axiom Resource decision, other judges of this Court began to distinguish 

parties’ efforts to complete the administrative record from requests to supplement the 

administrative record. For example, in Joint Venture of Comint Systems Corp. v. United States, 

after examining Axiom Resource, this Court explained, “[a]dmission of new evidence into an 

agency-assembled record is a separate and distinct issue from completing the record through 

incorporation of materials generated or considered by the agency itself during the procurement 

process.” Joint Venture of Comint Sys. Corp., 100 Fed. Cl. at 167 (citing NEQ, LLC v. United 

States, 86 Fed. Cl. 592, 593 (2009)). Additionally, in Linc Government Services, LLC v. United 

States, the Court expounded: “A procuring agency’s initial submission to the court may omit 

information that is properly part of the administrative record because it served as a basis for the 

agency’s award decision. In such instances, subsequent admission of the omitted information is 

appropriate not to supplement the record, but to complete it.” Linc Gov’t Servs., LLC v. United 

States, 95 Fed. Cl. 155, 158 (2010) (internal citations omitted) (emphasis added). 

C. Judgment on the Administrative Record in a Bid Protest
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Rule 52.1(c) of the Rules of the Court of Federal Claims “provides for judgment on the 

administrative record.” Huntsville Times Co. v. United States, 98 Fed. Cl. 100, 104 (2011). Rule 

52.1(c) was “designed to provide for trial on a paper record, allowing fact-finding by the trial 

court.” Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005). 

This Court may set aside a contract award if: “(1) the procurement official’s decision 

lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or 

procedure.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 

1332 (Fed. Cir. 2001). “When a challenge is brought on the second ground, the disappointed 

bidder must show ‘a clear and prejudicial violation of applicable statutes or regulations.’” Id. at 

1333 (quoting Kentron Haw., Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973)). “[D]e 

minimis errors do not require the overturning of an award.” Grumman Data Sys. Corp. v. 

Dalton, 88 F.3d 990, 1000 (Fed. Cir. 1996). “De minimis errors are those that are so 

insignificant when considered against the solicitation as a whole that they can safely be ignored 

and the main purposes of the contemplated contract will not be affected if they are.” Id. (internal 

quotation marks omitted) (quoting Andersen Consulting v. United States, 959 F.2d 929, 935 

(Fed. Cir. 1992)). A bid protest plaintiff must establish alleged “errors in the procurement 

process significantly prejudiced [it]” by showing “there was a ‘substantial chance’ it would have 

received the contract award but for the errors.” Bannum, Inc., 404 F.3d at 1353.

D. Permanent Injunction

When deciding whether a permanent injunction is warranted, 

a court considers: (1) whether, as it must, the plaintiff has succeeded on the merits 

of the case; (2) whether the plaintiff will suffer irreparable harm if the court 

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

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

to grant injunctive relief. 

PGBA, LLC v. United States, 389 F.3d 1219, 1228–29 (Fed. Cir. 2004).

III. Supplementation of the Administrative Record

Since supplementation of the administrative record permeates the arguments on the 

merits, the Court first considers whether supplementation is appropriate in this case. See State of 

N.C. Bus. Enters. Program, 110 Fed. Cl. at 361 (“Before proceeding to the merits, the court 

considers the propriety of supplementing the administrative record.”); Holloway & Co. v. United 

States, 87 Fed. Cl. 381, 391–92 (2009) (analyzing supplementation of the administrative record 

before reaching the merits).

A. The Parties’ Arguments

Plaintiff moved to supplement the administrative record with: (1) [CMVP] Certificate 

No. 950 and accompanying NIST validation notes associated with Heritage’s proposed Cisco 

881W router; (2) “all transcripts that defendant-intervenor . . . produced while performing prior 
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court reporting services contracts with [the ITC]:” and (3) “Heritage’s prior contracts with the 

ITC for court reporting services.” Mot. to Suppl. AR at 3. Plaintiff argues supplementation with 

CMVP Certificate No. 950 and its corresponding validation notes is necessary because “[a] 

central issue to this protest is whether the ITC should have declared Heritage’s proposal 

technically acceptable not only because Heritage’s router no longer holds an Active FIPS 140-2 

validation but also due to the reasons that the router no longer holds such a validation.” Id. at 12. 

Thus, “if the agency had considered the fact that the Cisco 881W router uses RNG algorithm 

X9.31 and the reasons surrounding NIST’s disallowance of that algorithm—as shown in CMVP 

Certificate No. 950 and the associated NIST validation notes—it could not have rationally 

concluded that Heritage’s proposal complied with the terms of the solicitation and applicable 

law.” Id. Next, plaintiff argues defendant-intervenor’s previous transcripts and ITC contract are 

“central to Ace-Federal’s protest grounds challenging the ITC’s evaluation of Heritage’s 

proposal under the Past Performance and Price factors and the agency’s conclusion that 

Heritage’s proposal presented a better value than Ace-Federal’s.” Id. at 4–5. As to the past 

performance evaluation, plaintiff contends the ITC “had at least constructive knowledge” of 

defendant-intervenor’s alleged past noncompliance with transcript formatting requirements 

“because Heritage’s contracts required it to deliver a copy of each transcript to the agency.” 

Id. at 7. Plaintiff therefore contends without supplementation with the transcripts and previous 

contract, it is “impossible for the Court to know whether those transcripts violated the terms of 

Heritage’s contracts or to assess whether the agency was required to review those transcripts to 

determine whether they complied with the contract requirements.” Id. at 9. 

The government opposes plaintiff’s motion to supplement the administrative record, 

arguing “the Commission did not consider [the requested materials], nothing in the RFQ required 

the Commission to consider [the requested materials], and they are unnecessary for the Court to 

adjudicate this case.” Def.’s Cross-MJAR at 48. Concerning the CMVP certificate and 

validation notes, the government asserts, “[e]ven if Ace believes that the router ‘should have 

been unacceptable[]’ because of the algorithm transition, the existing record already reflects the 

information that Ace seeks to add because the Cisco 881W certificate and the cited Special 

Publication both note the algorithm transition.” Id. at 48–49. Regarding the transcripts, the 

government argues “their only utility is to undermine the actual close-at-hand information the 

Commission collected and considered—namely, the Past Performance Questionnaire completed 

by Commission staff, which confirmed that Heritage complied with its contract’s technical 

requirements.” Id. The government therefore contends plaintiff “fails to show what these 

particular documents demonstrate that is not already in the existing record.” Id. at 49. 

Defendant-intervenor also opposes plaintiff’s motion to supplement the administrative 

record, arguing plaintiff “hopes to use this supplemental documentation to argue that . . . the 

agency was required to look beyond the ‘historical’ . . . NIST [CMVP] rating assigned to the 

Heritage proposed router, the Cisco 881W, and to perform an independent algorithmic analysis 

of one of the seven FIPS algorithms used by that device, an analysis that was neither 

contemplated by the solicitation nor conducted by the Agency.” Def.-Intervenor’s Resp. to Mot. 

to Suppl. AR at 6. Defendant-intervenor thus maintains, based on the solicitation, the ITC “was 

entitled to rely on the NIST CMVP router certificate,” not “delv[ing] into the underlying 

algorithm determinations,” and “if that argument is correct, the current record is sufficient for the 

Court to review the USITC’s evaluation.” Id. at 8. Next, defendant-intervenor characterizes 
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plaintiff’s motion as asking “the Court to supplement the record with about a million pages of 

material, which was not before the Agency during its evaluation, for the purpose of asking this 

Court to conduct a de novo review in the manner Plaintiff would have desired.” Id. at 2 (internal 

footnote omitted). To the extent plaintiff seeks supplementation with the 2019 contract and 

transcripts produced thereunder, “the 2019 contract was awarded after the USITC conducted the 

past performance and price evaluations that are being challenged in this protest,” rendering them 

irrelevant to this protest. Id. at 3. Defendant-intervenor also notes “a copy [of] the 2019 contract 

is already a part of the record.” Id. (citing AR Tab 15). Defendant-intervenor argues “the ITC 

did consider Heritage’s performance as part of the past performance evaluation” by considering 

“past performance questionnaire responses from four of Heritage’s reference contracts,” 

including the ITC. Id. Therefore, defendant-intervenor maintains “Plaintiff wants this Court to 

reconsider not the past performance evaluation in this procurement, but the underlying 

evaluation of Heritage’s performance on the Pre-2014 Contract that expired by its own terms 

more than six years ago,” which “is exactly the type of de novo review that the Federal Circuit 

cautioned against in Axiom.” Def.-Intervenor’s Resp. to Mot. to Suppl. AR at 4. 

B. Analysis

1. CMVP Certificate No. 950 and Validation Notes

Plaintiff seeks to supplement the administrative record in this case with the addition of 

CMVP Certificate No. 950 and its validation notes. See Mot. to Suppl. AR at 9–12. CMVP 

Certificate No. 950 corresponds to one of seven algorithms the Cisco 881W router uses. See id.

at 10–11. Under the heading “Algorithm Capabilities” on Certificate No. 950, the following 

language is noted as follows with strikethrough: “RNG ANSI X9.31: Core Algorithm: TDES2Key.” Id. at 11. The validation notes accompanying Certificate No. 950 confirm the RNG 

algorithm capabilities are crossed out on Certificate No. 950 because it is no longer approved. 

Id. at 12. 

Plaintiff argues: “if the agency had considered the fact that the Cisco 881W router uses 

RNG algorithm X9.31 and the reasons surrounding NIST’s disallowance of that algorithm—as 

shown in CMVP certificate No. 950 and the associated NIST validation notes—it could not have 

rationally concluded that Heritage’s proposal complied with the terms of the solicitation and 

applicable law.”2 Id. Plaintiff clarified during oral argument that “this is an alternative 

argument.” Tr. at 29:10–11, ECF No. 50. Plaintiff’s primary argument is FIPS 140-2 prohibits 

federal agencies from procuring services using cryptographic modules with a historical CMVP 

validation. See id. at 29:11–25. Assuming the agency had discretion to procure such services, or 

an exception applied, plaintiff argues the ITC would be required to make a risk assessment 

considering the reason why the module had a historical validation. See id. at 30:1–31:22. 

Plaintiff confirmed its case is “not dependent on this supplementation,” but CMVP Certificate 

2 Plaintiff clarified during oral argument if the ITC considered Certificate No. 950 and its validation notes, then the 

standard for completion of the record would apply rather than supplementation. See Tr. at 23:3–24:1. Plaintiff 

explained, however, “it’s unclear from the record if the agency actually looked at them,” but “if they didn’t look at 

them, . . . it would be a supplementation issue.” Id. at 23:23–24:1. Plaintiff assumes for the purposes of its motion 

the agency did not consider Certificate No. 950 and its validation notes, invoking the supplementation standard 

under Axiom. Id. at 24:1–3. Plaintiff does not point to—and the Court cannot locate—any evidence in the record 

Certificate No. 950 and its validation notes were before the ITC.
- 16 -

No. 950 and its validation notes are “further evidence that if the agency had reasonably assessed 

the information available through the CMVP with respect to this proposed router, there would 

have been additional information that would have called into question its acceptability.” Id. at 

24:12–18. Plaintiff presents an either-or proposition: either the ITC may not procure services 

proposing use of historically validated hardware, or if the ITC may procure such services, it must 

engage in a technical analysis of the reason why the hardware holds a historical validation.

The Solicitation stated the ITC would “evaluate the offeror’s ability to meet the [FIPS 

140-2], Security Requirements for Cryptographic Modules.” AR at 30. In both the initial 

evaluation and the subsequent CISO evaluation of FIPS 140-2 compliance, the agency adhered to 

this evaluation scheme. The CO noted “Heritage’s proposed use of technology highlights their 

proposed hardware/software elements and . . . shows a thorough grasp of the technical 

requirements and reduces risk to the federal government by providing a detailed and auditable 

technical implementation.” Id. at 190. When reviewing plaintiff’s and defendant-intervenor’s 

FIPS 140-2 compliance after the first GAO protest, the CISO explained “[o]ffers were evaluated 

by reviewing the [CMVP] certificate number(s) in each proposal to confirm FIPS 140-2 

compliance.” Id. at 2309. Additionally, “[f]or the purposes of the evaluation certification, 

values of ‘active’ or ‘historical’ are considered compliant.” Id. 

Based on the Solicitation’s evaluation scheme, it was appropriate for the ITC to consider 

the router CMVP certificate numbers cited in each proposal when considering FIPS 140-2 

compliance. The details in Certificate No. 950, however, extend beyond the scope of the 

Solicitation because the Solicitation did not require the agency to do a full technical analysis of 

the algorithm risk or consider “the reasons surrounding NIST’s disallowance of that algorithm.” 

Mot. to Suppl. AR at 12; see also East West, Inc., 100 Fed. Cl. at 57 (“These categories all 

concern information that is necessary for effective judicial review, because they reflect what was 

or should have been considered by the agency.”). Were the Court to consider these details, 

which are beyond the scope of the Solicitation and not something the agency considered during 

evaluation, the Court would be conducting a de novo technical evaluation of the proposals, which 

is beyond the Court’s bid protest jurisdiction. See Axiom Resource Mgmt., 564 F.3d at 1380 

(“The purpose of limiting review to the record actually before the agency is to guard against 

courts using new evidence to ‘convert the “arbitrary and capricious” standard into effectively de 

novo review.’”) (quoting Murakami, 46 Fed. Cl. at 735). For the reasons discussed in greater 

detail in Sections IV.B and IV.C, ITC reasonably concluded hardware with historical validation 

was compliant for this procurement. Furthermore, nothing required ITC to consider the reasons 

why the Cisco router holds a historical status, including “the reasons surrounding NIST’s 

disallowance of [the RNG] algorithm,” as depicted by the strikethrough algorithm details on 

Certificate No. 950. Mot. to Suppl. AR at 12. Thus, the Court finds plaintiff’s either-or 

proposition incorrect.

Moreover, Certificate No. 1700, which corresponds to the Cisco 881W router and is 

already part of the record, indicates the reason for its historical status is “RNG SP800-131A 

Revision 1 Transition,” referencing the same disallowance reason as listed on Certificate No. 

950. AR at 2899. This Court “has consistently understood the [effective judicial review] test as 

enabling supplementation when necessary, not when merely convenient.” State of N.C. Bus. 

Inters. Program, 110 Fed. Cl. at 361 (emphasis added). Therefore, even under plaintiff’s 
- 17 -

alternative argument the agency should have considered Certificate No. 950 and its validation 

notes to consider “the reasons surrounding NIST’s disallowance of [the RNG] algorithm,” the 

reasons are on Certificate No. 1700, which is in the record and sufficient for effective judicial 

review. Mot. To Suppl. AR at 12. For these reasons and the reasons set forth in further detail 

below, the Court finds supplementation of the administrative record with these materials is 

inappropriate and unnecessary for effective judicial review.

2. Transcripts and Contracts

Plaintiff also seeks supplementation of the administrative record with defendantintervenor’s previous ITC court reporting contracts and all transcripts produced thereunder. See 

Mot. to Suppl. AR at 4–9. The proposed supplementation would demonstrate defendantintervenor’s alleged historical noncompliance with transcript formatting requirements under 

previous contracts, which plaintiff contends the agency should have considered when evaluating 

defendant-intervenor’s past performance. See id. at 6–8. Plaintiff argues these materials should 

be part of the administrative record because it is “impossible for the Court to know whether those 

transcripts violated the terms of Heritage’s contracts or to assess whether the agency was 

required to review those transcripts to determine whether they complied with the contract 

requirements . . . .” Id. at 9. The Solicitation provided offerors’ past performance would be 

based on past performance questionnaires and required offerors to “submit a minimum of three 

(3) past experience/past performance references of similar work and scope.” AR at 29. The 

Solicitation further indicated “[t]he Government may also use past performance information 

obtained from the Past Performance Information Retrieval System (PPIRS), Federal Awardee 

Performance and Integrity Information System (FAPIIS), and any other past performance 

information available to the Contracting Officer, such as but not limited to performance history 

under USITC.” Id. at 31. The ITC based its past performance evaluation of both plaintiff and 

defendant-intervenor on the questionnaires their respective references submitted, including the 

ITC. Id. For both offerors, the ITC submitted past performance questionnaires specifying both 

parties complied with all technical requirements of the contract. Id. at 104, 152.

The Solicitation required the ITC to consider the past performance questionnaires but did 

not require the ITC to reexamine the offerors’ past work product for compliance with an expired 

contract. To the extent plaintiff seeks to impute to the ITC constructive knowledge of alleged 

noncompliance with the requirements of defendant-intervenor’s ITC contract ending in 2014, the

issue is irrelevant to this case. Nothing on the face of the past performance questionnaires from 

defendant-intervenor’s references, including the ITC’s reference, raised any question whether 

defendant-intervenor had “Exceptional” references. See, e.g., AR at 150. Nothing required the 

ITC to then search for negative information to rebut the “Exceptional” references. See id.; see 

also East West, Inc., 100 Fed. Cl. at 57 (“These categories all concern information that is 

necessary for effective judicial review, because they reflect what was or should have been 

considered by the agency.”). Supplementing the record with defendant-intervenor’s previous 

contracts and transcripts would invite the Court to consider a matter of management of an 

expired contract, thereby confusing the issues in this case and placing the Court in a position to 

conduct a de novo review of the ITC’s past performance evaluation. See Axiom Resource Mgmt., 

564 F.3d at 1380 (“The purpose of limiting review to the record actually before the agency is to 

guard against courts using new evidence to ‘convert the “arbitrary and capricious” standard into 
- 18 -

effectively de novo review.’”) (quoting Murakami, 46 Fed. Cl. at 735). For these reasons and the 

reasons set forth in further detail below, the Court finds supplementation of the administrative 

record with these materials is inappropriate and unnecessary for effective judicial review.3

IV. Judgment on the Administrative Record Related to the ITC’s Technical Evaluation

A. The Parties’ Arguments Regarding the ITC’s Technical Evaluation

Plaintiff argues “[t]he ITC failed to comply with NIST’s requirements” of only procuring 

services with active FIPS 140-2 certificates by “accept[ing] Heritage’s proposal despite 

Heritage’s plan to use the Cisco 881W router,” which has a historical certificate. Pl.’s MJAR at 

16. Plaintiff thus also contends the ITC arbitrarily and capriciously found defendant-intervenor’s 

proposal technically acceptable and assigned its proposal a strength for defendant-intervenor’s 

digital security approach. Id. at 31, 40. 

The government argues plaintiff fails to demonstrate the ITC’s technical evaluation lacks 

a rational basis because the ITC reasonably determined historical certificates were FIPS 140-2 

compliant. Def.’s Cross-MJAR at 22–24. According to the government, neither the RFQ nor 

FIPS 140-2 differentiates between active and historical validation certificates. Id. at 25–27. The 

government also contends the ITC was reasonable in determining defendant-intervenor’s 

approach to digital security was a “strength” and its overall technical rating was “good.” Id. at 

34–35. 

Defendant-intervenor argues the ITC rationally evaluated the proposals under the 

technical factor because nothing prohibited the ITC from procuring services using equipment 

with historical validation certificates and the ITC reasonably determined NIST guidance 

prohibiting historically validated hardware did not apply to service procurements like this one. 

Def.-Intervenor’s Cross-MJAR at 22–31. Additionally, “[t]o the extent the RFQ had any 

ambiguity” concerning active and historical certificates, “that ambiguity was patent,” and 

plaintiff waived the argument by failing to raise it prior to award. Id. at 31. 

B. Whether NIST Website Guidance Prohibited the ITC from Procuring Services 

Using Historically Validated Hardware

The Solicitation’s SOW, under the heading “Digital Security,” provided: “[e]ncryption 

utilizing [FIPS 140-2] . . . is applicable to the services provided under this contract.” AR at 22. 

Offerors were therefore required to “employ encryption utilizing [FIPS 140-2] validated 

cryptographic modules operated in the FIPS-approved mode.” Id. The Solicitation instructed 

offerors to “propose cryptographic modules and . . . state the National Institute of Standards and 

Technology (NIST) Cryptographic Module Validation Program (CMVP) certificate number(s) of 

the cryptographic modules that are being proposed.” Id. at 28. The Solicitation stated the ITC 

would “evaluate the offeror’s ability to meet the [FIPS 140-2] Security Requirements for 

Cryptographic Modules.” Id. at 30. FIPS 140-2 provides, “[c]ryptographic modules that are 

3 To the extent defendant-intervenor’s past transcripts are relevant to this case, the administrative record already 

contains hundreds of pages of its transcripts. See, e.g., AR at 981–1546.
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validated under the CMVP will be considered as conforming to this standard.” Nat’l Inst. for 

Standards & Tech., FIPS 140-2 Security Requirements for Cryptographic Modules, at iv (2001), 

https://csrc.nist.gov/publications/detail/fips/140/2/final. 

Plaintiff argues “[t]he ITC failed to comply with NIST’s requirements” as set forth in 

FIPS 140-2 because defendant-intervenor proposed use of a router holding a historical, rather 

than active, CMVP validation. Pl.’s MJAR at 16. Plaintiff cites various pages of the CMVP 

website providing digital security guidance to federal agencies to support its contention federal 

agencies are prohibited from procuring services using equipment holding any status other than 

active. See id. at 17, 22. For example, plaintiff highlights guidance declaring “[i]f a validation 

certificate is marked as historical, Federal Agencies should not include these [cryptographic 

modules] in new procurement[s].” Id. at 22 (emphasis omitted). A full review of FIPS 140-2, 

however, reveals no distinction between active and historical validations. During oral argument, 

the Court asked plaintiff if any law or regulation contains the same provision plaintiff quoted 

from the CMVP website. Tr. at 72:2–4. Plaintiff responded, “the agency is bound to use the 

NIST website,” and it is required to “implement FIPS 140-2 validated modules,” which is “one 

that CMVP has validated.” Id. at 72:6, 11–12. 

The Department of Commerce, through NIST, promulgated FIPS 140-2 following the 

APA’s notice-and-comment rulemaking procedures. See Announcing Approval of Federal 

Information Processing Standard (FIPS) 140-2, Security Requirements for Cryptographic 

Modules, 66 Fed. Reg. 34,154-02 (June 27, 2001) (explaining NIST’s issuance of FIPS 140-2 as 

a binding regulation after a notice-and-comment period). FIPS 140-2 is thus a legislative rule 

with the force and effect of law. Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015) (quoting

Chrysler Corp. v. Brown, 441 U.S. 281, 302–03 (1979) (internal quotation marks omitted) 

(“Rules issued through the notice-and-comment process are often referred to as ‘legislative rules’ 

because they have the ‘force and effect of law.’”)). The same notice-and-comment requirement 

does not apply “to interpretative rules, general statements of policy, or rules of agency 

organization, procedure, or practice.” 5 U.S.C. § 553(b)(3)(A). The Supreme Court has 

observed “opinion letters—like . . . policy statements, agency manuals, and enforcement 

guidelines . . . lack the force of law.” Christensen v. Harris Cty., 529 U.S. 576, 587 (2000); see 

also Butterbaugh v. Dep’t of Justice, 336 F.3d 1332, 1340 (Fed. Cir. 2003) (quoting Christensen, 

529 U.S. at 587) (finding agency policy guidance, like “‘policy statements, agency manuals, and 

enforcement guidelines,’ . . . lack the force of law . . . .”); Hamlet v. United States, 63 F.3d 1097, 

1103 (Fed. Cir. 1995) (“Obviously, not every piece of paper released by an agency can be 

considered a regulation entitled to the force and effect of law.”). 

While there is disagreement over the definition of interpretive rules, “it suffices to say 

that the critical feature of interpretive rules is that they are ‘issued by an agency to advise the 

public of the agency’s construction of the statutes and rules which it administers.’” Perez, 575 

U.S. at 97 (quoting Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99 (1995)). Regarding the 

website interpretation, interpretive rules “do not have the force and effect of law and are not 

accorded that weight in the adjudicatory process.” Shalala, 514 U.S. at 99. Thus, the CMVP 

website does not have the force and effect of law because it is an “interpretative rule[], general 

statement[] of policy, or rule[] of agency organization, procedure, or practice.” 5 U.S.C. § 

553(b)(3)(A).
- 20 -

Plaintiff argues NIST, through the CMVP website, forbids historical certifications from 

inclusion in procurements like the one in this case. Pl.’s Resp. & Reply at 12. Plaintiff asks the 

Court to give Skidmore deference to what it perceives to be unambiguous language from CMVP 

website guidance as NIST’s interpretation of its own legislative rule. Pl.’s Resp. & Reply at 13. 

Plaintiff raised this argument in a short conclusory paragraph in its reply and response brief and 

in a conclusory manner at oral argument. Id.; Tr. at 79:24–80:3. Skidmore describes the 

standard courts use to determine how much weight to give agency constructions of statutes and 

regulations: “[t]he weight of such a judgment in a particular case will depend upon the 

thoroughness evident in its consideration, the validity of its reasoning, its consistency with 

earlier and later pronouncements, and all those factors which give it power to persuade, if 

lacking power to control.’” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Plaintiff notes 

another judge on this court held “[u]nder Skidmore, courts may give deference to an agency’s 

interpretation of its governing laws even when the agency does not use its rulemaking authority.” 

Nippon Paper Indus. USA Co. v. United States, 129 Fed. Cl. 76, 79 (2016) (citing Skidmore, 323 

U.S. at 139–40). 

The weight of Skidmore deference a court may choose to apply ranges from “great 

respect . . . to near indifference . . . .” United States v. Mead Corp., 533 U.S. 218, 228 (2001). 

Even if the Court assumes Skidmore deference applies to an agency website, plaintiff did not 

explain why the CMVP website has persuasive power to make it worthy of something closer to 

“great respect” as opposed to “near indifference.” See Skidmore, 323 U.S. at 140; Mead Corp.,

533 U.S. 218. Plaintiff instead asserted, “[g]iven the authority vested in NIST, the NIST and 

CMVP guidance are compelling evidence of the intent behind FIPS 140-2 and binding standards 

in their own right.” Pl.’s Resp. & Reply at 13. 

Defendants dispute whether the CMVP website forbids historical certifications. 

According to defendant-intervenor, regardless of whether the Court treats the website with 

deference, neither the website nor any other “regulation . . . says that an agency cannot use a 

cryptographic module with a historical rating. . . . [T]he burden is on the protestor to 

demonstrate that and he hasn’t done so.” Tr. at 83:18–21. The government similarly 

emphasized the CMVP website does not state what plaintiff alleges: “the Court can consider 

[the website], it can consider what the agency did, but . . . the question is whether or not that 

guidance says . . . that a historical certificate is not FIPS 140-2 validated. It doesn’t say that. 

And that’s what [plaintiff] needs it to say, and it doesn’t say that.” Id. at 84:11–17.

Deference is appropriate when “policies are made in pursuance of official duty, based 

upon more specialized experience and broader investigations and information than is likely to 

come to a judge in a particular case.” Skidmore, 323 U.S. at 139. NIST is empowered to set 

federal government information systems standards. See 15 U.S.C. § 278g-3(a). Also, through

the CMVP, NIST “validates cryptographic modules to [FIPS] 140-2 and other cryptography 

based standards.” Nat’l Inst. for Standards & Tech., FIPS 140-2, at iii. While NIST’s 

congressionally prescribed expertise suggests its website interpretation of its legislative rules is 

worthy of consideration, the CMVP website presents no information as to its authorship or 

definitiveness. See Tr. at 72:21–75:10 (responding to questioning by the Court, plaintiff’s 

counsel was unable to clarify the authoritativeness of website details beyond describing it as 
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“subregulatory”). Further, NIST did not present plaintiff’s preferred interpretation—or any other 

interpretation—to the Court because NIST is not party to this case. See Hydro Res., Inc. v. 

United States Env’t Prot. Agency, 608 F.3d 1131, 1146 n.10 (10th Cir. 2010) (en banc) 

(highlighting the importance of affected parties’ participation in the adversarial process when 

considering whether to apply Skidmore deference). Plaintiff requests the Court give deference to 

NIST through the CMVP website, yet the meaning of the website plaintiff proposes to the Court 

includes plaintiff’s own interpretation of the CMVP website. Granting deference to a plaintiff’s 

interpretation of a nonlitigating agency’s website would require the Court to speculate what 

NIST’s position would be on the weight and meaning of the website, as well as straining the 

adversarial process. See id. (noting a court relies on the adversarial process “to test the issues for 

[its] decision and from concern for the affected parties to whom [it] traditionally extend[s] notice 

and an opportunity to be heard on issues that affect them”). 

Plaintiff also claims the ITC seeks Skidmore deference for its own interpretation of 

NIST’s regulations. Tr. at 81:17–22 (“[T]he Federal Circuit expressly said that it gives no 

deference to agency interpretations of other agency regulations. And that’s what the ITC is 

doing here. They’re saying we [the ITC] have the authority to interpret what a validation is.”). 

Federal Circuit precedent clarifies: “only the interpretation of the agency that promulgated the 

regulation matters.” Allegheny Teledyne Inc. v. United States, 316 F.3d 1366, 1378 (Fed. Cir. 

2003).

4

 Contrary to plaintiff’s claim, however, the ITC does not ask for deference to its 

construction of the CMVP website; rather, the ITC asks the Court to review its actions under an 

arbitrary and capricious standard of review pursuant to the APA. Def.’s Cross-MJAR at 19 

(“This Court reviews bid protests using the standard of review set forth in the Administrative 

Procedure Act (APA) and considers whether the agency action was arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law.”) The ITC’s matter-of-fact 

statement of the standard of review is not a request the Court grant Skidmore deference to any 

construction of relevant statutes or regulations. While Skidmore directs courts to consider “all 

those factors which give [an agency interpretation of a statute or regulation] power to persuade,” 

the ITC asks for arbitrary and capricious review of its compliance with NIST’s regulations. 

Skidmore, 323 U.S. at 140.

This case presents an APA question related to arbitrary and capricious review, not an 

abstract deference question. See Kisor v. Wilkie, 139 S. Ct. 2400, 2432 (2019) (Gorsuch, J., 

concurring in the judgment) (noting a court discussing the “rules governing judicial review of 

federal agency action” does not, or at least should not, be “writing on a blank slate or exercising 

4

Judges on this court have carved a narrow exception to Allegheny’s prohibition on one agency’s interpretation of 

another agency’s regulations. See, e.g., Colon v. United States, 132 Fed. Cl. 655, 661–62 (2017) (“Where an agency 

interprets regulations promulgated by a different agency, such an interpretation is also afforded deference when the 

interpreting agency is authorized to adopt or implement the regulations at issue.”); see also Bortone v. United States, 

110 Fed. Cl. 668, 676 (2013) (internal citations omitted) (“While deference is generally only afforded to an agency’s 

interpretation of its own rules and regulations, courts will give deference to an agency’s interpretation of regulations 

drafted by another agency where, as here, the interpreting agency adopts and administers the subject regulations.”); 

Murphy v. United States, 130 Fed. Cl. 554, 562 (2017) (“Courts afford deference to an agency’s interpretation of 

regulations drafted by another agency, when the non-drafting agency is authorized to adopt or implement the subject 

regulations.”). Regardless of whether this carve out is consistent with Allegheny, the ITC’s interpretation of the 

CMVP website does not fall under the exception because the ITC does not “adopt or implement” NIST’s 

regulations. See Colon, 132 Fed. Cl. at 661–62.
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some common-law-making power. [It is] supposed to be applying the Administrative Procedure 

Act.”). In bid protests, the Court follows 5 U.S.C. §706(2)(A): “a reviewing court shall set aside 

the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law.’” Banknote Corp. of Am., Inc., 365 F.3d at 1350–51 (quoting Advanced 

Data Concepts, Inc., 216 F.3d at 1057–58). Under this standard, “a court is not to substitute its 

judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc., 463 U.S. at 43; see

also Advanced Data Concepts, 216 F.3d at 1058 (citing Bowman Transp., Inc., 419 U.S. at 285) 

(holding the court must “sustain an agency action evincing rational reasoning and consideration 

of relevant factors”); Ala. Aircraft Indus., Inc.-Birmingham, 586 F.3d at 1375 (quoting Motor 

Vehicle Mfrs. Ass’n of U.S., Inc., 463 U.S. at 43) (agency action fails the APA standard of review

when it has “‘entirely failed to consider an important aspect of the problem, offered an 

explanation for its decision that runs counter to the evidence before the agency, or [the decision] 

is so implausible that it could not be ascribed to a difference in view or the product of agency 

expertise.’”). 

The CMVP website states the following:

If a validation certificate is marked as revoked, the module validation is no longer 

valid and may not be referenced to demonstrate compliance to . . . FIPS 140-2.

If a validation certificate is marked as historical, Federal Agencies should not 

include these in new procurement[s]. This does not mean that the overall FIPS140 certificates for these modules have been revoked[;] rather[,] it indicates that the 

certificates and the documentation posted with them are either more than 5 years 

old, or were moved to the historical list because of an algorithm transition. In these 

cases, the certificates have not been updated to reflect latest guidance and/or 

transitions, and may not accurately reflect how the module can be used in FIPS 

mode. . . . Agencies may make a risk determination on whether to continue using 

the modules on the historical list based on their own assessment of where and how 

the module is used.

Cryptographic Module Validation Program, NIST Computer Security Resource Center, 

https://csrc.nist.gov/projects/cryptographic-module-validation-program/validated-modules (last 

updated Aug. 12, 2020) (emphasis added). Notably, this guidance indicates historical status does 

not mean the validation has been revoked. Additionally, the guidance acknowledges historical 

modules “can be used in FIPS mode.” Id. It also recognizes there are instances when an agency 

may use historical modules: when the agency “make[s] a risk determination.” Id. Accordingly, 

the website’s guidance is either ambiguous or it affirmatively allowed the agency to assess the 

risk of using historically validated hardware in a service procurement. Any Skidmore deference 

the Court could grant to the CMVP website, as plaintiff requests, would produce a result either 

neutral (if the website is ambiguous) or supporting the ITC’s interpretation (if the website 

allowed the agency to assess the risk).

During oral argument, plaintiff asserted, “the solicitation expressly incorporates the 

CMVP.” Tr. at 80:9–10. To the extent plaintiff contends the Solicitation incorporated the entire 

program, including its website, the Federal Circuit has stated “the language used in a contract to 
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incorporate extrinsic material by reference must explicitly, or at least precisely, identify the 

written material being incorporated and must clearly communicate the purpose of the reference is 

to incorporate the referenced material into the contract (rather than merely to acknowledge the 

referenced material is relevant to the contract, e.g., as background law or negotiating history).” 

Northrop Grumman Info. Tech., Inc. v. United States, 535 F.3d 1339, 1345 (Fed. Cir. 2008); see 

also St. Christopher Assocs., L.P. v. United States, 511 F.3d 1376, 1384 (Fed. Cir. 2008) (“This 

court has been reluctant to find that statutory or regulatory provisions are incorporated into a 

contract with the government unless the contract explicitly provides for their incorporation.”). 

The Solicitation, however, merely stated: “[t]he offeror shall propose cryptographic modules 

and shall state the [NIST CMVP] certificate number(s) of the cryptographic modules that are 

being proposed.” AR at 28. The Solicitation’s reference to the CMVP does not explicitly 

incorporate any guidance from the website. Rather, the Solicitation’s mention of CMVP 

provides instruction for the offeror in compiling its proposal. 

When considering the “prohibition” in its entire context, the Court finds the CISO’s 

interpretation of the “prohibition” reasonable: it permitted the ITC to assess whether historically 

validated hardware could be used for the purposes of this procurement. The Solicitation 

mentions the CMVP website, and the ITC based its decision on a reasonable interpretation of the 

CMVP website. These facts indicate the ITC did not “entirely fail[] to consider an important 

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

evidence before the agency,” but instead engaged the problem using the evidence before it. Ala. 

Aircraft Indus., Inc.-Birmingham, 586 F.3d at 1375 (discussing the APA “arbitrary and 

capricious” standard for reviewing an agency’s procurement decision). The ITC’s interpretation 

of the CMVP website is not “so implausible that it could not be ascribed to a difference in view 

or the product of agency expertise.” Id. As a result, the ITC did not arbitrarily or capriciously 

interpret the CMVP website to allow historically validated hardware for this procurement. See 

Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1085 (2001) (quoting 5 U.S.C. 

§ 706(2)(A)) (“[A] reviewing court must set aside agency actions that are ‘arbitrary, capricious, 

an abuse of discretion, or otherwise not in accordance with law.’ . . . [T]he agency’s action must 

be upheld as long as a rational basis is articulated and relevant factors are considered.”). 

C. Whether ITC’s Determination Defendant-Intervenor’s Proposal was Technically 

Acceptable is Arbitrary and Capricious

Plaintiff further argues it was arbitrary and capricious for the ITC to find defendantintervenor’s proposal technically acceptable in light of its proposed router. Pl.’s MJAR at 31. In 

challenging the ITC’s acceptance of defendant-intervenor’s proposal, plaintiff argues the ITC’s 

distinction between procurements for goods and services is irrational because “[t]here is no 

authority to support a finding that FIPS 140-2 or the specific procurement restriction at issue do 

not apply to service procurements.” Id. at 33. To the contrary, the CISO found support in FIPS 

140-3, the most recent NIST cryptography standards promulgated through notice-and-comment 

rulemaking, for this distinction. AR at 2309 (“The USITC will evaluate the offeror’s ability to 

meet the Federal Information Processing Standards Publication (FIPS PUB) 140-3, Security 

Requirements for Cryptographic Modules.”). The CISO looked to the 140-3 requirement 

because the SOW’s FIPS 140 requirement was forward-looking at version 140-3 despite FIPS 

140-2 being the current and applicable version of FIPS 140 at the time the ITC released the 
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solicitation and parties submitted offers. Id. The CISO explained FIPS 140-3 provides support 

for the ITC’s interpretation because it notes “‘[a]gencies should develop plans for the acquisition 

of products that are compliant with FIPS 140-3; however, agencies may purchase any of the 

products on the CMVP validated modules list.’” Id. at 2310 (quoting FIPS 140-3, Security 

Requirements for Cryptographic Modules, NIST Computer Security Resource Center, 

https://csrc.nist.gov/publications/detail/fips/140/3/final (Mar. 22, 2019)). Additionally, the CISO 

noted “[a] search of the CMVP list for modules on the active validation list yields results for 

products that are either hardware, software, firmware, or hybrids.” Id. The CISO therefore 

concluded FIPS standards applied to procurements of products, rather than services, because the 

active validation list exclusively discussed products. The Court finds the CISO’s explanation of 

the distinction between products and services to “evinc[e] rational reasoning.” See Advanced 

Data Concepts, 216 F.3d at 1058 (citing Bowman Transp., Inc., 419 U.S. at 285). Plaintiff’s 

disagreement with the interpretation does not render the CISO’s evaluation arbitrary and 

capricious. “‘If the court finds a reasonable basis for the agency’s action, the court should stay 

its hand even though it might, as an original proposition, have reached a different conclusion as 

to the proper administration and application of the procurement regulations.’” Honeywell, Inc. v. 

United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co. v. Seamans, 455 

F.2d 1289, 1301 (D.C. Cir. 1971)).

Plaintiff also argues to the extent an agency opts to procure services using equipment 

with historical status, the agency must first conduct a risk assessment. Pl.’s MJAR at 17–18. 

Even assuming the NIST website guidance requires a risk assessment before procuring 

equipment with historical status, the ITC read the language as applying only to products, not 

services. The ITC’s CISO quoted the same website guidance in the FIPS 140 evaluation 

conducted pursuant to the ITC’s corrective action and explained the ITC’s interpretation of the

guidance: “procurements for new hardware/software should generally avoid equipment with 

FIPS140 certificates marked as ‘historical’ in new procurements.” AR at 2310. Further, 

addressing whether “agencies may make a risk determination on whether to continue using this 

module based on their own assessment of where and how it is used,” the CISO explained the ITC 

“does not interpret this language as directed at procurement of services.” Id. The ITC based its 

interpretation on “the complexity of service provider systems and the fact that those service 

provider systems are expected to evolve over time and replace equipment as needed.” Id. 

Therefore, “‘historical’ designations [were] considered compliant for the purposes of this 

evaluation.” Id. 

Based on the ITC’s interpretation of the guidance, the agency found no risk of procuring 

services using historical modules and thus did not conduct a risk assessment in the sense plaintiff 

maintains NIST’s regulations required. The bid protest standard of review “recognizes the 

possibility of a zone of acceptable results in a particular case and requires only that the final 

decision reached by an agency be the result of a process which ‘consider[s] the relevant factors’ 

and is ‘within the bounds of reasoned decisionmaking.’” Wit Assocs., Inc. v. United States, 62 

Fed. Cl. 657, 660 (2004) (quoting Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 

U.S. 87, 105 (1983)). Although plaintiff interprets the same language differently, the Court finds 

the CISO evaluation evinces rational reasoning supported by a reasonable explanation of the 

agency’s interpretation based on the relevant factors. See Honeywell, Inc., 870 F.2d at 648

(quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971)) (“‘If the court 
- 25 -

finds a reasonable basis for the agency’s action, the court should stay its hand even though it 

might, as an original proposition, have reached a different conclusion as to the proper 

administration and application of the procurement regulations.’”).

D. Whether it was Arbitrary and Capricious for the ITC to Assign DefendantIntervenor’s Technical Proposal a Strength

Plaintiff argues the ITC also erred by assigning defendant-intervenor’s proposal a 

strength for digital security. Pl.’s MJAR at 40. Plaintiff asserts the agency could only have 

found a strength by failing to consider “the Cisco 881W router was highly risky because its 

security depends on the X9.31 algorithm that NIST has disallowed due to security 

vulnerabilities.” Id. Plaintiff contends the ITC should have looked beyond the router’s CMVP 

certificates to determine why each router holds its current status. Id. Since contracting officers 

are “entitled to ‘broad discretion . . . to determine whether a proposal is technically acceptable, 

plaintiff has an unusually heavy burden of proof in showing that the determination . . . was 

arbitrary and capricious.’” Westech Int’l, Inc. v. United States, 79 Fed. Cl. 272, 286 (2007) 

(internal citation omitted) (quoting Cont’l Bus. Enters. v. United States, 452 F.2d 1016, 1021 (Ct. 

Cl. 1971)). Defendant-intervenor’s proposal thoroughly highlighted its technology’s FIPS 140-2 

compliance. For example, its proposal stated, “[a] Cisco 881W router is used running in FIPS 

140-2 compliant mode with tamper resistant labels.” AR at 113; see also id. (“[Defendantintervenor] will employ encryption technologies utilizing FIPS 140-2 validated cryptography, 

with our equipment and software configured in FIPS-approved mode . . . . As FIPS 140-3 

validated cryptographic modules become available from commercial vendors, [defendantintervenor] will test and implement these modules in the equipment, software[,] and processes 

dedicated to the USITC contract.”). The CO did not need to look at every algorithm to conclude 

defendant-intervenor’s proposal “shows a thorough grasp of the technical requirements and 

reduces risk to the federal government by providing a detailed and auditable technical 

implementation.” Id. at 190. 

Nothing in the Solicitation required the ITC to look beyond the CMVP certificates for the 

routers and investigate the CMVP validations for the algorithms each router uses. The 

Solicitation stated the ITC would “evaluate the offeror’s ability to meet” FIPS 140-2 standards 

and “evaluate the offeror’s access to and use of current technology as it relates to court 

reporting.” AR at 30. The ITC’s consideration of the reasons behind a single algorithm’s 

disallowance would therefore be beyond the scope of the Solicitation’s requirements. Further, 

plaintiff’s argument regarding the algorithm invites the Court to conduct a de novo technical 

evaluation, which goes beyond the scope of the Court’s APA standard of review. Motor Vehicle 

Mfrs. Ass’n of U.S., Inc., 463 U.S. at 43 (“The scope of review under the ‘arbitrary and 

capricious’ standard is narrow and a court is not to substitute its judgment for that of the 

agency.”). “The purpose of limiting review to the record actually before the agency is to guard 

against courts using new evidence to convert the arbitrary and capricious standard into 

effectively de novo review.” Axiom Res. Mgmt., Inc., 564 F.3d at 1381 (internal quotation marks 

omitted). Plaintiff asks the Court to investigate the details of whether the CO looked beyond the 

CMVP certificates for the routers and inquire into the CMVP validations for each router’s 

algorithms. Requiring the CO to analyze the underlying algorithms would improperly expand 

judicial review beyond “the record actually before the agency” and “convert the arbitrary and 
- 26 -

capricious standard into effectively de novo review.” AgustaWestland North America, Inc. v. 

United States, 880 F.3d 1326, 1331 (2018) (internal quotation marks omitted). For these reasons 

the Court finds defendant’s technical evaluation reasonable. 

V. Judgment on the Administrative Record Related to the ITC’s Past Performance 

Evaluation

A. The Parties’ Arguments Regarding the ITC’s Past Performance Evaluation

Plaintiff argues the ITC’s evaluation of defendant-intervenor’s proposal was flawed 

because it did not consider defendant-intervenor’s purported historical noncompliance with 

transcript formatting requirements and its Contractor Performance Assessment Reports 

(“CPARs”). Pl.’s MJAR at 42–43. The government asserts plaintiff waived its arguments 

concerning ITC’s past performance evaluation because it failed to challenge the scope of the 

ITC’s proposed corrective action, which would only reevaluate the proposals under the use of 

technology subfactor. Def.’s Cross-MJAR & Resp. at 36. Further, the government argues 

plaintiff fails to show the ITC’s past performance evaluation lacked a rational basis because the

ITC reasonably determined defendant-intervenor’s past performance warranted an “Outstanding” 

rating, and nothing required the ITC to consider CPARs in evaluating past performance. Id. at 

40–41. Responding to plaintiff’s transcript formatting arguments, the government maintains 

plaintiff “has no standing as a third party to challenge [defendant-intervenor’s] capacity to fulfill 

contract requirements under the guise of a bid protest,” and such arguments “would require the 

Commission to assume future non-compliance when no evidence of prior non-compliance was 

before the evaluators.” Id. at 47. Defendant-intervenor also contends plaintiff waived its past 

performance arguments by failing to raise them as a challenge to the ITC’s proposed corrective 

action during the first GAO protest. Id. at 32–33. Even if plaintiff did not waive its past 

performance arguments, defendant-intervenor nonetheless maintains those arguments are 

unavailing because ITC’s past performance evaluation was rational. Id. at 33. Defendantintervenor further asserts plaintiff’s transcript formatting arguments are “untimely,” “factually 

baseless,” and a “matter[] of contract administration.” Id. at 44–45.

B. Whether Plaintiff Waived its Past Performance Arguments

As a threshold matter, both the government and defendant-intervenor argue plaintiff 

waived its past performance arguments by failing to protest the agency’s corrective action. “[A] 

party who has the opportunity to object to the terms of a government solicitation containing a 

patent error and fails to do so prior to the close of the bidding process waives its ability to raise 

the same objection afterwards in a § 1491(b) action in the Court of Federal Claims.” Blue & 

Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007). “The same policy 

underlying Blue & Gold supports its extension to all pre-award situations.” COMINT Sys. Corp. 

v. United States, 700 F.3d 1377, 1382 (Fed. Cir. 2012). While the Federal Circuit has not 

applied its Blue & Gold waiver rule to corrective action, this Court has extended the waiver rule 

to situations in which a protestor did not protest an agency’s proposed corrective action. For 

example, in XPO Logistics Worldwide Government Services, LLC v. United States, this Court 

held the plaintiff waived its arguments regarding discussions after it was informed the agency 

would not hold discussions during its corrective action and did not protest the corrective action. 
- 27 -

134 Fed. Cl. 783, 799 (2017), aff’d, 713 Fed. App’x 1008 (Fed. Cir. 2018). Similarly, in Anham 

FZCO v. United States, this Court held the plaintiff waived arguments concerning the awardee’s 

legal issues because it knew the agency would not consider those issues during its corrective 

action and failed to challenge the scope of the corrective action. 144 Fed. Cl. 697, 719 (2019).

In Technatomy Corp. v. United States, however, this Court declined to extend the waiver 

rule to arguments the plaintiff could have raised in protesting the agency’s corrective action but 

did not raise until after the corrective action. 144 Fed. Cl. 388, 391–92 (2019). There, this Court 

explained the circumstances in which the waiver rule should apply “involve bid protests brought 

by an initial awardee challenging a decision to undertake corrective action, as such parties are 

injured by having to win the same award twice, and the decision is neither interlocutory nor 

without legal consequences.” Id. at 391 (internal citations omitted) (first citing NVE, Inc. v. 

United States, 121 Fed. Cl. 169, 178–79 (2015), and then citing Sys. Application & Techs., Inc. v. 

United States, 691 F.3d 1374, 1382, 1384 (Fed. Cir. 2012)). The Court next reasoned, “[i]n 

contrast, the initially unsuccessful offeror which obtains corrective action as a result of bringing 

a GAO protest cannot usually be said to have been injured by this remedy, particularly when the 

GAO recommended the course of action—as that office will only do so when it has been 

convinced that the protester’s substantial chance of winning the award would thereby be 

restored.” Id. Applying Technatomy’s principles to its facts, the Court found the plaintiff could 

not have raised its technical evaluation arguments in a subsequent protest challenging the 

corrective action, which the GAO recommended, because “the decision which injured plaintiff—

the source selection decision—was no longer in force, and none of the technical evaluation 

decisions which plaintiff challenges were the sort which necessarily disqualified plaintiff.” Id. 

Therefore, “plaintiff had neither standing nor a ripe claim to pursue once the corrective action 

was announced. To find otherwise would open the floodgates to bid protests challenging 

evaluation minutiae brought by parties who had not yet even been excluded from a competitive 

range.” Id. at 391–92. Moreover, this Court found the plaintiff “preserved these protest grounds 

by raising them before the GAO in the first place.” Id. at 392. It was “not disputed that 

plaintiff’s protest grounds concerning the technical evaluations of proposals were previously 

included in the GAO protest, and a timely, formal objection is all that is necessary to preserve 

grounds that are subject to Blue & Gold waiver.” Id.

Similarly, in Vanguard Recovery Assistance v. United States, another judge of this Court 

rejected similar arguments and found the plaintiff did not waive arguments it raised at GAO, 

which were not subject to the agency’s corrective action, and later raised in the subsequent 

protest before this Court. 99 Fed. Cl. 81, 90–92 (2011). There, this Court similarly noted 

evaluation arguments raised in a protest challenging the corrective action “would be met with a 

persuasive ripeness objection.” Id. at 91.

Like the plaintiff in Technatomy, here plaintiff raised the same substantive past 

performance arguments before GAO. See AR at 332. Additionally, although the ITC did not 

propose to reevaluate past performance during its corrective action, plaintiff promptly objected 

to the scope of the corrective action and requested GAO not dismiss its first protest. 

Specifically, plaintiff asserted “the corrective action is too narrow” because, among other 

reasons, “the ITC will not address . . . its failure to consider [defendant-intervenor’s]

noncompliance with the RFQ’s transcript formatting requirements.” Id. at 1737. Plaintiff also 
- 28 -

argued to GAO ambiguities in the notice of corrective action “make it difficult to assess which, if 

any, of [plaintiff’s] protest grounds it will address or potentially address and hence render 

academic.” Id. at 1740. Moreover, similar to Technatomy, here, the ITC stated its corrective 

action would reevaluate its best value determination and produce a new source selection 

decision. See id. at 1735–36. Therefore, with the original source selection decision no longer in 

effect, plaintiff likely would not have had standing to raise past performance arguments 

regarding the source selection decision in a protest challenging the scope of the corrective action. 

See Technatomy, 144 Fed. Cl. at 391 (“Because of that corrective action, the decision which 

injured plaintiff—the source selection decision—was no longer in force . . . .”). Consistent with 

other judges of this Court, the Court declines to extend a Blue & Gold waiver rule to this case

and finds plaintiff did not waive its past performance arguments.

C. Whether the ITC’s Past Performance Evaluation was Arbitrary and Capricious

Plaintiff argues the ITC should have considered defendant-intervenor’s alleged historical 

noncompliance with transcript formatting requirements in its evaluation of defendantintervenor’s past performance.5

 Pl.’s MJAR at 43. In so arguing, plaintiff invokes the “too close 

at hand” doctrine. Id. Plaintiff relies on this Court’s decision in Seattle Security Services, Inc. v. 

United States, 45 Fed. Cl. 560 (2000) for the proposition “an agency may not disregard an 

offeror’s past performance on a contract for the same work that is being solicited.” Id. The 

government argues the ITC considered all relevant “close-at-hand” information and “did not 

ignore either (1) information about [defendant-intervenor’s] performance personally known to 

the Evaluation Team[,] or (2) information relating to [defendant-intervenor’s] contracts with the 

Commission.” Def.’s Cross-MJAR at 44. Additionally, the government contends “in advancing 

its wide-margin allegations, [plaintiff] raises a question about future contract administration, 

which is governed by the Contract Disputes Act, and beyond the scope of the Court’s bid-protest 

jurisdiction.” Id. at 46. Likewise, defendant-intervenor argues the ITC reasonably relied on 

defendant-intervenor’s past performance questionnaires, which reported defendant-intervenor 

complied with all technical requirements for each reference contract, and “the page formatting 

requirement[s] under the present solicitation are irrelevant to [defendant-intervenor’s]

performance under the Pre-2014 Contract.” Def.-Intervenor’s Cross-MJAR at 40.

Seattle Security Services concerned a General Services Administration procurement for 

armed security guards for federal offices and courthouses in Washington and Oregon. 45 Fed. 

Cl. at 562. The solicitation instructed offerors to provide three contract references from relevant 

past contracts performed within the last five years, and the CO would contact some or all of the 

offerors’ references. Id. at 563. The plaintiff previously held separate contracts for Washington 

and Oregon and listed the CO for each contract as a reference. See id. at 564. The CO for the 

procurement at issue “did not evaluate the same number of references for each offeror and did 

not always employ the evaluation form” the CO created to evaluate past performance. Id. To 

5 Defendant-intervenor notes in its briefing the record shows plaintiff may have failed to comply with formatting 

requirements on a transcript it produced of an ITC hearing on 3 October 2019. AR at 2417–18 (Declaration of Ian 

Quillman, CO at the ITC). See Def.-Intervenor’s Cross-MJAR at 38, (quoting AR at 2417) (“Mr. Quillman stated 

that during his review of Ace’s performance under its 2019 bridge contract, he reviewed a transcript that Ace 

completed and found Ace’s margins were not compliant, considering them to be ‘large variances.’”).
- 29 -

evaluate the plaintiff’s past performance, the CO contacted the Washington contract CO and the 

reference for another smaller contract. Id. The plaintiff challenged the CO’s past performance 

evaluation and argued the CO “failed to evaluate properly its performance as the incumbent on 

the Washington and Oregon contracts, which were being combined” for the procurement, and by 

inconsistently using the evaluation form. Id. at 566. This Court agreed the CO’s failure to 

consider the plaintiff’s past performance on both the Washington and Oregon contracts 

prejudiced plaintiff. Seattle Sec. Servs., Inc., 45 Fed. Cl. at 567. This Court therefore concluded 

“the CO acted unreasonably in failing to combine the Washington and Oregon contracts for 

purposes of evaluating plaintiff’s past performance” because “[t]his information was simply too 

relevant and close at hand to ignore.” Id. at 569.

Here, the ITC submitted a past performance questionnaire testifying to defendantintervenor’s performance under its pre-2014 contract providing court reporting services to the

ITC, and it considered this questionnaire in evaluating defendant-intervenor’s past performance. 

AR at 152. The ITC indicated on the questionnaire defendant-intervenor complied with all 

technical requirements of the contract. Id. Defendant-intervenor’s three other references 

responded the same, with each reference assessing either “Very Good” or “Exceptional” ratings 

in every category. Id. at 150–51, 153. Unlike the CO in Seattle Security Services, here, the CO 

took all past performance questionnaires into account in evaluating past performance. The 

record does not show evaluators ignored any other information they personally knew or 

possessed. This Court’s decision in Seattle Security Services is therefore distinguishable from 

the instant case. Nothing on the questionnaires would have caused the CO to question the 

accuracy or dependability of the ratings. 

Moreover, defendant-intervenor’s past transcript formatting does not bear on this 

contract; compliance with contract requirements is a matter of contract administration not 

appropriately raised in a bid protest. See MSC Indus. Direct Co. v. United States, 140 Fed. Cl. 

632, 652 (2018) (“[A protestor] cannot, as a third party, challenge the capacity of an awardee to 

fulfill the requirements of the award.”). The CO for this procurement echoed this principle in a 

declaration submitted to the GAO, which stated: “As the CO, my duties include contract 

administration. I consider the order form and transcript-formatting requirements in the original 

contract and the bridge contract to be performance requirements subject to contract 

administration . . . .” AR at 1898. Even if the past transcript formatting were relevant, there is 

no evidence in the record showing the evaluators had any personal knowledge of defendantintervenor’s transcript formatting.

The ITC’s evaluation of defendant-intervenor’s past performance consisted of a review of 

four completed past performance questionnaires reflecting defendant-intervenor’s performance 

and a review of a chart reflecting a summary of CPARs ratings for defendant-intervenor’s past 

contracts, all of which were rated “Exceptional,” “Very Good,” or “Satisfactory.” Id. at 150–53, 

192. From this, the Evaluation Team assigned an “Outstanding” rating to defendant-intervenor’s 

past performance factor. Id. at 193. Plaintiff argues the ITC “fail[ed] to reasonably consider 

[defendant-intervenor’s] CPARs” in two respects: first, the information contained in the 

summary CPARs chart does not support an assignment of an “Outstanding” rating under the past 

performance factor because the majority of defendant-intervenor’s ratings were merely 

“Satisfactory;” and second, the ITC did not actually review and consider the CPARs, but instead 
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relied on an assessment chart without looking at the underlying reports. Pl.’s MJAR at 49–50. 

Plaintiff concludes had the ITC given meaningful weight to defendant-intervenor’s CPARs, 

defendant-intervenor “would have received a lower past performance rating.” Id. at 52.

Plaintiff’s argument concerns the assignment of an “Outstanding” rating based on the 

ratings contained in the summary CPARs chart regarding “minutiae of the procurement process, 

which involve discretionary determinations of procurement officials that a court will not second 

guess.” E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996). “The Court gives the

‘greatest deference possible’ to a procurement official’s evaluation of a proposal’s technical

excellence or quality.” Seaborn Health Care, Inc. v. United States, 101 Fed. Cl. 42, 48 (2011)

(quoting Fort Carson Support Servs. v. United States, 71 Fed. Cl. 571, 598 (2006)).

Plaintiff fails to identify any objective requirement in FAR Section 42.1502 stating the 

ITC must review and consider defendant-intervenor’s full CPARs report, as opposed to 

reviewing and summarizing CPARs ratings. Section 42.1502 sets forth a general policy 

requiring agencies to input information about a contractor’s performance in CPARs, but it does 

not universally require agencies to extract CPARs reports as part of a past performance 

evaluation. See FAR § 42.1502(a). Instead, plaintiff relies on a GAO decision finding an agency 

unreasonably “relied exclusively upon the assessment chart generated by CPARS listing rating 

percentages.” JMark Servs., Inc., B-417331.2, 2019 CPD ¶ 277, 2019 WL 3493829, at *8

(Comp. Gen. July 22, 2019); Pl.’s MJAR at 50. 

Applied to this case, JMark shows the ITC conducted a rational past performance 

evaluation. The solicitation in JMark required past performance evaluations be a “primary 

consideration in [the] selection process,” but the Air Force disregarded the questionnaires in 

favor of a rating derived from CPARs summary charts. JMark Services, Inc., 2019 WL 

3493829, at *10. The CPARs charts in the JMark solicitation did not provide information by 

which the Air Force could determine whether the ratings pertained to relevant experience, 

meaning the Air Force’s entire evaluation scheme was inconsistent with the solicitation 

requirements. Id. at *9–10. Here, the ITC’s past performance evaluation also included 

questionnaires attached to the RFQ. AR at 191–92. Additionally, the RFQ neither required nor 

prohibited ITC’s review of a CPARs summary chart. There is no basis for plaintiff’s assertion 

the ITC acted without a rational basis in considering the CPARs chart. See Honeywell, Inc., 870 

F.2d at 648 (quoting M. Steinthal & Co. v. Seamans, 455 F.2d at 1301) (“‘If the court finds a 

reasonable basis for the agency’s action, the court should stay its hand even though it might, as 

an original proposition, have reached a different conclusion as to the proper administration and 

application of the procurement regulations.’”). Plaintiff’s assertions thus concern the “minutiae 

of the procurement process[,] . . . which involve[s] discretionary determinations of procurement 

officials that a court will not second guess.” E.W. Bliss Co., 77 F.3d at 449. For these reasons 

the Court finds defendant’s past performance evaluation reasonable.

VI. Judgment on the Administrative Record Related to the ITC’s Best Value 

Determination

Plaintiff asserts the ITC conducted a flawed best value tradeoff based on its alleged errors 

in evaluating the offerors under the technical and past performance factors. Pl.’s MJAR at 52. 
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The government argues plaintiff also waived its arguments regarding ITC’s best value 

determination because plaintiff failed to protest the scope of the ITC’s corrective action, which 

did not include reevaluating its best value tradeoff. Def.’s Cross-MJAR at 35–39. Finally, 

defendant-intervenor argues plaintiff’s “challenge to the best-value determination is entirely 

derivative of its meritless technical, past performance, and price evaluation arguments, which the 

Court should reject . . . .” Def.-Intervenor’s Cross-MJAR at 47. 

Plaintiff objected to the scope of the corrective action, arguing “the ITC’s new costtechnical tradeoff and best value decision will be based on [the] same misleading and inaccurate 

price delta between [plaintiff’s] and [defendant-intervenor’s] proposals.” AR at 1738. Similar to 

the above analysis regarding waiver of the past-performance evaluation, plaintiff preserved its 

best value determination arguments by raising them in the first GAO protest. See id. at 334. 

Plaintiff argues, based on its contention the ITC evaluation of the technical and past performance 

factors was arbitrary and capricious, the alleged errors tainted the ITC’s best value trade off 

analysis, rendering the best value determination arbitrary and capricious as well. Pl.’s MJAR at 

53. Plaintiff’s arguments regarding the best value trade off depend on the Court finding error 

with either the technical evaluation or the past performance evaluation. See Pl’s MJAR at 53–55 

(arguing the ITC’s best-value decision was unreasonable because of flaws in its technical 

evaluation and past performance evaluation). Since the Court finds the ITC’s evaluation of the 

technical and past performance factors was rational, the ITC’s best value determination 

accordingly did not err. “It is well-established that contracting officers have a great deal of 

discretion in making contract award decisions, particularly when, as here, the contract is to be 

awarded to the bidder or bidders that will provide the agency with the best value.” Banknote 

Corp. of Am., Inc., 365 F.3d at 1355. For these reasons and the reasons discussed in Sections IV 

and V, the Court finds defendant’s best value determination reasonable.

VII. Injunctive Relief

In its motion for judgment on the administrative record, plaintiff requested a permanent 

injunction. See Pl.’s MJAR at 56–58. The Court considers the following factors when 

determining whether to issue a permanent injunction: “(1) whether . . . the plaintiff has 

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

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

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

relief.” PGBA, LLC, 389 F.3d at 1228–29. Turning first to factor one, plaintiff is not entitled to 

injunctive relief because plaintiff does not prevail on the merits. The Court therefore does not 

reach the remaining prongs of the test for a permanent injunction. Info. Tech. & Applications 

Corp. v. United States, 51 Fed. Cl. 340, 357 n.32 (2001), aff’d, 316 F.3d 1312 (Fed. Cir. 2003) 

(“Absent success on the merits, the other factors are irrelevant.”).

VIII. Conclusion

For the foregoing reasons, the Court DENIES plaintiff’s motion to supplement the 

administrative record, DENIES plaintiff’s motion for judgment on the administrative record, and 

GRANTS the government’s and defendant-intervenor’s respective cross-motions for judgment 

on the administrative record. The Clerk is directed to enter judgment accordingly.
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IT IS SO ORDERED.

s/ Ryan T. Holte

RYAN T. HOLTE 

Judge