In the United States Court of Federal Claims

No. 13-131 C

(E-Filed Under Seal: May 23, 2013)

1

(E-Filed with Redactions: June 12, 2013)

________________________________________ 

)

Post-Award Bid Protest; Claims 

by Incumbent Contractor of 

Improper Technical Evaluation of 

Proposals, Unequal Discussions, 

Improper Price Realism Analysis, 

and Flawed Best Value Analysis

)

MIL-MAR CENTURY CORP., )

)

 Plaintiff, )

v. )

 )

THE UNITED STATES OF AMERICA, )

 )

 Defendant,

&

THE ENTWISTLE CO.,

 Defendant-Intervenor.

)

)

)

)

)

)

)

)

________________________________________ )

Barbara Ann Duncombe, Dayton, OH, for plaintiff. Suzanne Sumner, Tricia C. Bell, 

Casie E. Hollis and Joshua D. Prentice, Dayton, OH, of counsel. 

Barbara E. Thomas, Trial Attorney, with whom were Stuart F. Delery, Principal Deputy 

Assistant Attorney General, Jeanne E. Davidson, Director, and Deborah A. Bynum, 

Assistant Director, Commercial Litigation Branch, Civil Division, United States 

1

 This Opinion was filed under seal on May 23, 2013, Docket Number (Dkt. No.) 44. 

The court instructed the parties to file any requests for the redaction of protected material on or 

before June 5, 2013. Id. at 1, n.1. In response to the court’s directive of May 23, 2013, plaintiff 

timely filed Plaintiff’s Motion to Redact the Court’s Opinion, Dkt. No. 46, and defendant filed 

Defendant’s Unopposed Motion for Leave to File Proposed Redactions Out of Time (defendant’s 

Motion for Leave), Dkt. No. 47. In an order dated June 6, 2013, the court granted defendant’s 

Motion for Leave and ordered defendant to “file a motion to redact protected materials on or 

before Monday, June 10, 2013.” Order of June 6, 2013, Dkt. No. 48. In response to the court’s 

directive of June 6, 2013, defendant timely filed Defendant’s Motion to Redact Protected 

Material Contained in the Court’s Sealed May 23, 2013 Opinion, Dkt. No. 49. The parties’ 

motions to redact are GRANTED. 

 
Department of Justice, Washington, DC, for defendant. Wade L. Brown, Associate 

Command Counsel, and George W. Day, Attorney-Advisor, United states Army 

TACOM, of counsel.

Henry E. Steck, Fort Worth, TX, for defendant-intervenor.

OPINION

HEWITT, Chief Judge

This is a post-award bid protest brought by plaintiff Mil-Mar Century Corp. (MilMar or plaintiff), the incumbent contractor responsible for designing and manufacturing 

Load Handling System Compatible Water Tank-Rack Systems (known as Hippos). See

Compl. for Declaratory and Injunctive Relief (Complaint or Compl.), Docket Number 

(Dkt. No.) 1, ¶¶ 2, 14-17. Plaintiff protests the award by the Army Contracting 

Command-Warren (the Agency) to The Entwistle Company (Entwistle or intervenor) of a 

contract valued at $69 million for the production of Hippos. See id. ¶¶ 2, 16. Plaintiff 

contends that “[t]he Agency’s actions were irrationally based, arbitrary, capricious, and 

contrary to applicable statutes and regulations.” Id. ¶ 4. 

Before the court are plaintiff’s Complaint, filed February 20, 2013; Plaintiff’s 

Motion and Memorandum in Support of Motion for Judgment upon the Administrative 

Record (plaintiff’s Motion or Pl.’s Mot.), Dkt. No. 28, filed March 18, 20132

; DefendantIntervenor’s Response Opposing Plaintiff’s Motion for Judgment on the Administrative 

Record and Cross-Motion for Judgment on the Administrative Record with Supporting 

Memorandum (intervenor’s Motion or Intervenor’s Mot.), Dkt. No. 29, filed April 1, 

2013; Defendant’s Opposition to Plaintiff’s Motion for Judgment upon the

Administrative Record and Cross-Motion for Judgment upon the Administrative Record 

2

 Plaintiff’s Motion and Memorandum in Support of Motion for Judgment upon the 

Administrative Record (plaintiff’s Motion or Pl.’s Mot.), Dkt. No. 28, filed March 18, 2013, 

seeks to “incorporate[] . . . by reference” facts and arguments from plaintiff’s Memorandum in 

Support of Plaintiff’s Motion for Preliminary Injunction (plaintiff’s Motion for Preliminary 

Injunction), Dkt. No. 5. See, e.g., Pl.’s Mot. 2 n.1, 6 n.3, 15 n.7. The court denied plaintiff’s 

Motion for Preliminary Injunction in an order dated February 21, 2013. Order of Feb. 21, 2013, 

Dkt. No. 16. Rule 5.4(b)(3) of the Rules of the United States Court of Federal Claims (RCFC) 

provides, “A party must not incorporate a brief or memorandum by reference; the court will 

disregard any such incorporation.” RCFC 5.4(b)(3). The court therefore disregards the attempt 

by Mil-Mar Century Corp. (Mil-Mar or plaintiff) to incorporate by reference all or any portion of 

plaintiff’s Motion for Preliminary Injunction. Cf. Def.’s Opp’n to Pl.’s Mot. for J. upon the 

Admin. R. & Cross-Mot. for J. upon the Admin. R. (defendant’s Motion or Def.’s Mot.), Dkt. 

No. 30, at 2 n.1 (objecting “to plaintiff’s attempts to evade the page limitations set forth in the 

Court’s rules--and agreed upon during the initial status conference in this litigation--by 

‘incorporating’ portions of other filings into its motion for judgment”). 

 
(defendant’s Motion or Def.’s Mot.), Dkt. No. 30, filed April 1, 2013; Plaintiff’s 

Response to Defendant’s Motion for Judgment upon the Administrative Record (Pl.’s 

Resp.), Dkt. No. 31, filed April 8, 2013; Defendant-Intervenor’s Reply to Plaintiff’s 

Response, Dkt. No. 32, filed April 15, 2013; and Defendant’s Reply in Support of Its 

Cross-Motion for Judgment upon the Administrative Record (Def.’s Reply), Dkt. No. 34, 

filed April 15, 2013.

The United States (the government or defendant) filed the Administrative Record 

(AR) on March 4, 2013, see Def.’s Notice of Filing of Admin. R., Dkt. No. 25, and the 

court granted Defendant’s Consent Motion for Leave to File Corrected Administrative 

Record, Dkt. No. 26, on March 11, 2013, see Order of Mar. 11, 2013, Dkt. No. 27. The 

parties completed briefing on April 15, 2013, and the court held oral argument on Friday, 

April 19, 2013 at 10:00 a.m. Eastern Daylight Time.3

 See Order of Feb. 21, 2013, Dkt. 

No. 14, at 2.

Plaintiff argues that “[t]he Agency improperly and unequally evaluated 

[Entwistle’s] technical proposal, conducted unequal discussions, . . . conducted an 

improper price realism analysis” and conducted a flawed best value analysis. Compl. ¶ 3. 

Defendant counters that, despite plaintiff’s “flurry of arguments to the contrary,” Def.’s 

Mot. 17, the Agency “acted reasonably and in accordance with the solicitation at each 

stage of its Hippo procurement,” Def.’s Reply 1. 

For the reasons stated below, plaintiff’s Motion is DENIED, and the Motions of 

defendant and intervenor are GRANTED. 

I. Background4

A. The Solicitation

On March 20, 2012 the Agency issued Solicitation No. W56HZV-11-R-0171 (the 

Solicitation or Request for Proposals (RFP)), a 100% small business set aside that sought 

proposals for a firm fixed-price, three-year Indefinite Delivery/Indefinite Quantity 

contract for the manufacture and supply of Hippos. Compl. ¶ 16, 28. See generally AR 

71-281 (RFP). Hippos are framed stainless steel water tanks, see AR 488, 490-91 (Hippo 

3

 The oral argument held on Friday April 19, 2013 was recorded by the court’s 

Electronic Digital Recording (EDR) system. The times noted in citations to the oral argument 

refer to the transcript of the EDR record of the oral argument (Tr.).

4

 The facts are taken from plaintiff’s Complaint for Declaratory and Injunctive Relief 

(Complaint or Compl.), Dkt. No. 1, the corrected Administrative Record, see Dkt. Nos. 25-27, 

plaintiff’s Motion and defendant’s Motion. Unless otherwise noted, the facts do not appear to be 

in dispute. 

 
Purchase Description) (stating that the water tank was to be made of stainless steel and 

describing frame requirements), that are “capable of transporting 2000 gallons of potable 

water, and can operate at temperatures of -25 degrees Fahrenheit,”5 AR 72 (RFP). The 

frame of a Hippo water tank is designed to “meet International Organization for 

Standardization (ISO) container requirements to allow stacking of tankracks and meet 

requirements of worldwide intermodal shipping.” AR 480 (Hippo Purchase Description). 

In addition to water tanks and frames, Hippos are equipped with heating devices, hose 

reels, water pumps and engines. Id. at 480, 494.

The Solicitation represented the first competitive procurement for Hippos. AR 

1767 (Initial Price Evaluation Report (Initial PER)). All previous procurements had been 

awarded to plaintiff on a sole-source basis.6 Compl. ¶ 14. Although the Agency 

considered its contracts with Mil-Mar successful, the Agency found “no compelling 

reason to believe” that its contracts with Mil-Mar yielded “the optimum in price.” AR 

2665 (Acquisition Plan). 

The Solicitation provided that the offeror selected for award would be required to

have “six First Article Testing (FAT) units” approved by the Agency before the Agency

ordered production of the remaining units. AR 72 (RFP). Once the Agency approved the 

FAT units, the selected offeror would be responsible for producing up to 311, 260 and 

274 Hippos in the first, second and third years of production, respectively, id. at 76, at an 

estimated maximum production rate of thirty-five Hippos a month, id. at 72. The 

selected offeror would also be responsible for developing technical manuals for the 

Hippos. Id. at 132. 

Offerors were to submit proposals that would include volumes dedicated to the 

discussion of three factors: Production Capability, Experience7 and Price. Id. at 262. 

5

 Load Handling System Compatible Water Tank-Rack Systems (known as Hippos) 

“fullfil[] the [United States] Army requirement for . . . mobile hard-wall water tanker[s] to 

transport and distribute water at the brigade level.” AR 2658 (Acquisition Plan). 

6

 The first non-competitive Hippo contract was awarded to plaintiff on September 21, 

2001. AR 1767 (Initial Price Evaluation Report (Initial PER)). Plaintiff produced fifty-four 

Hippos under the first contract, which established plaintiff as the original manufacturer of the 

Hippo. Id. On August 25, 2006, plaintiff was awarded the second non-competitive Hippo 

contract, pursuant to which plaintiff produced approximately 770 Hippos, and, on December 17, 

2010, plaintiff was awarded the third non-competitive Hippo contract, pursuant to which plaintiff 

produced 469 Hippos. Id.

7

 The primary difference between an agency’s evaluation of offerors’ experience versus 

offerors’ past performance is that an evaluation of experience “does not consider the quality of 

the work performance, whereas” evaluation of past performance does. AR 2189 (Procuring 

Contracting Officer Determination to Waive Past Performance as an Evaluation Factor); see also

 
Section L of the Solicitation provided offerors with instructions regarding the required 

content of the proposals, see id., and Section M of the Solicitation provided offerors with 

information regarding the Agency’s evaluation of the proposals, see id. at 276. The court 

discusses Section L and Section M of the Solicitation in more detail below. 

1. Section L of the Solicitation: Instructions, Conditions and Notices to 

Offerors

Section L of the Solicitation provided offerors with instructions, conditions and 

notices. Id. at 262. Section L.4 of the Solicitation discussed what information offerors 

were to include in the volume dedicated to the Production Capability factor. Id. at 263. 

Under this factor, offerors were to provide letters of commitment from sub-contractors 

and to address the following considerations: manufacturing facilities, production 

approach, key tooling and equipment and time-phased critical path schedule. Id. at 263. 

Plaintiff does not raise any specific arguments related to the Production Capability factor. 

See Tr. 58:3-5 (Barbara E. Thomas (Ms. Thomas)) (“Mil-Mar hasn’t made any 

arguments that Entwistle submitted insufficient information about its production 

capabilities.”).

Section L.5 of the Solicitation discussed what information offerors were to include 

in the volume dedicated to the Experience factor. AR 264 (RFP). Under this factor, 

offerors were to identify up to five “relevant [c]ontracts” that had been performed in the 

past three years. Id. Section L.5.3 defined relevant contracts as those that “are 

comparable in scope to the requirements of this RFP” and further provided that “relevant 

Experience with the following scope of work [(SOW)] requirements [would] be assessed 

by the Government:” (1) comparable items, or the “[s]upply of sanitary liquid handling 

and storage systems of a complexity comparable to the Hippo”; (2) technical manuals, or 

the “[s]upply of Technical Manuals of a complexity comparable to the Technical 

Manuals required in this RFP”; (3) delivery, or the “[d]elivery of water handling and 

storage systems of complexity comparable to the Hippo” at a production rate comparable 

to thirty-five Hippos a month; (4) low temperature requirement, or the production of 

“sanitary liquid handling and storage systems capable of meeting . . . low-temperature 

requirements”; and (5) welding, or the “[w]elding [of] stainless steel in accordance with

American Welding Society [Standard] D18.3/18.3M.” Id. at 265. Section L.5.4 provided 

that, for each of the contracts identified, offerors should include, among other 

information, copies of the actual SOW provisions of each contract and “[a] discussion of 

specific similarities between these contract [SOWs] and the [SOW] herein.” Id. Section

L.5.4 also stated that “[f]ailure to provide the information requested under [Section] L.5.4 

. . . so that the Government can verify claimed experience may result in a determination 

AR 2281 (Source Selection Authority (SSA) Final Briefing) (stating that “[f]or purposes of this 

evaluation, ‘past performance’ will be interpreted to mean ‘experience’ and the evaluation will 

not consider the quality of performance on prior offeror efforts”). 

 
that your proposal is unacceptable and the elimination of your proposal from 

consideration for award.” Id.

Section L.6 of the Solicitation discussed the information offerors were to include 

in the volume dedicated to the Price factor. Id. Under this factor, offerors were to list all

proposed prices in a Microsoft Excel spreadsheet labeled as Attachment 16, including 

proposed material costs, subcontractor costs over $5,000 and labor-related costs (broken 

down into labor rates and hours). Id. at 265-66; cf. AR 550-54 (Attachment 16 template). 

Attachment 16 included a Bill of Material, in which offerors were to identify all items 

with an estimated cost of $500 or more; offerors were allowed to aggregate the total 

value of items costing less than $500. See AR 266 (RFP); AR 554 (Bill of Material). 

Section L.6.6 provided that “the Government reserves the right, as a clarification under 

[Federal Acquisition Regulation (FAR)] 15.306(a), to request additional or more detailed 

price breakdown data to support its determination of price reasonableness.” AR 266 

(RFP). 

2. Section M of the Solicitation: Evaluation Factors for Award

Section M of the Solicitation addressed the criteria by which the Source Selection 

Evaluation Board (SSEB) would evaluate proposals for award. Id. at 276-77; AR 1857 

(Contract Review Board Abstract) (discussing the SSEB’s role in evaluating proposals). 

The findings of the SSEB would inform the decision of the Source Selection Authority 

(SSA), AR 1857 (Contract Review Board Abstract), “the official designated to direct the 

source selection process and select the Offeror for contract award,” AR 277 (RFP); see

AR 2341 (Source Selection Organization Chart) (illustrating the relationship between the 

SSA and the SSEB). 

The Solicitation provided that the SSA would evaluate proposals “using a tradeoff process to determine which proposal provides the most advantageous and realistic 

proposal (i.e. best value) considering the three factors: 1) Production Capability, 2) 

Experience, and 3) Price.” AR 276 (RFP). That is, “in selecting the offer which is most 

advantageous and represents the best value to the Government,” the SSA would consider 

“the relative strengths/weaknesses and risks of each Offeror’s proposal in the non-price 

factors as well as the total evaluated price.” Id. The Solicitation provided that the 

government would award the contract to the offeror that (1) represented the best value to 

the government, (2) submitted a proposal that met “all the material requirements of [the] 

solicitation” and (3) met certain responsibility requirements. Id. at 277.

Section M.4 of the Solicitation discussed the relative weight to be given to each 

factor: “Production Capability is the most important factor and is slightly more important 

than [E]xperience,” with “Experience [being] slightly more important than Price.” Id.

When combined, the non-price factors would be considered more important than price. 

Id. at 278. However, the Solicitation provided that--“[n]otwithstanding the relative order 
of importance of the evaluation factors as stated”--the Price factor “may be controlling 

when . . . [t]he advantages of a higher rated, higher price[d] proposal are not considered 

to be worth the price premium.” Id. at 277. 

With respect to the volume dedicated to the Production Capability factor, Section 

M.5 provided that the government would assess “offerors[’] capacity to provide for 

timely delivery of supplies in satisfaction of contract requirements,” id. at 278, and

offerors would be a assigned a rating of outstanding, good, acceptable, marginal or 

unacceptable, AR 2412 (Source Selection Plan). With respect to the volume dedicated to 

the Experience factor, Section M.6 provided that “the Government [would] assess the risk 

that the offeror [would] successfully meet contract requirements based upon prior 

experience with the [five SOW] requirements” set forth in Section L.5.3, see AR 278 

(RFP), and offerors would be assigned a rating of very relevant, relevant, somewhat 

relevant or not relevant,8 AR 2413 (Source Selection Plan); Compl. ¶ 36. Section M.7 

addressed the volume dedicated to the Price factor, in which the government would

“assess the total evaluated price to the Government.” AR 278 (RFP). Section M.7 also 

provided that the government would evaluate “the reasonableness of the proposed prices

to accomplish the solicitation requirements,” and that “[t]he Government may reject a 

proposal which is not realistic, or not reasonable, as to price.” Id.; cf. id. (stating that 

“[r]easonableness exists when an offered price does not exceed what would be incurred 

by a prudent person in the conduct of competitive business”); infra Part III.D (discussing 

the Agency’s price realism analysis). 

Section M of the Solicitation also listed circumstances under which the 

government could reject proposals. AR 276 (RFP). The Solicitation provided that the 

government “may” reject proposals that “omit[] significant material data and information 

required by Section L;” are “unrealistically . . . low in price” and “reflect[] an inherent 

lack of technical competence or a failure to comprehend the complexity and risks 

required to perform the solicitation requirements;” or “contain[] any unexplained 

significant inconsistency between the proposed effort and cost and/or price, which 

8

 These experience ratings are described by the Source Selection Authority (SSA) as 

follows: 

[A]n assessment of Very Relevant Experience will be considered to reflect a very 

low risk of unsuccessful performance[,] . . . an assessment of Relevant Experience 

will be considered to reflect a low risk of unsuccessful performance[,] . . . an 

assessment of Somewhat Relevant Experience will be considered to reflect a 

moderate risk of unsuccessful performance[,] . . . [and] an assessment of Not 

Relevant Experience will be considered to reflect a high risk of unsuccessful 

performance.

AR 2281 (SSA Final Briefing); AR 2413 (Source Selection Plan). 

 
implies the offeror . . . has an inherent misunderstanding of the scope of work, or . . . has 

an inability to perform the resultant contract.” Id.

The Solicitation further provided that the government intended to award the 

contract without conducting discussions. Id. “Where award will be made without 

discussions, exchanges with Offerors are limited to clarifications as defined in FAR 

15.306(a).” Id. Although “the Government reserve[d] the right to hold discussions, if 

necessary,” the Solicitation advised offerors to submit their “best terms with respect to 

the price and non-price factors.” Id. 

B. Responses to the Solicitation and the SSEB’s Evaluation of Proposals

Seven offerors submitted proposals in response to the Solicitation: [* * *], 

Entwistle, [* * *], [* * *], [* * *], Mil-Mar, and [* * *]. AR 1878 (Source Selection 

Decision Document (SSDD)). Proposals were received May 21, 2012; however, on June 

6, 2012 the Agency issued amendments to the Solicitation,

9 and the seven offerors 

submitted modified proposals on June 14, 2012. Id.; AR 1857 (Contract Review Board 

Abstract). 

The SSEB evaluated the proposals submitted by the seven offerors pursuant to 

Section M of the Solicitation. AR 1878 (SSDD); cf. supra Part I.A.2 (discussing Section 

M). The SSEB assigned Mil-Mar the highest ratings in both the Production Capability 

and Experience factors. AR 1879 (SSDD). However, Entwistle’s total evaluated price of 

$69,063,943 was approximately [* * *]% lower than that of Mil-Mar’s ($[* * *]) and 

approximately [* * *]% lower than that of the next lowest offeror, [* * *] ($[* * *]). See

id.; see also id. at 1905 (stating that Mil-Mar’s total evaluated price was [* * *]% higher 

than Entwistle’s and that the second lowest offeror’s price was [* * *]% higher than 

Entwistle’s); AR 1857 (Contract Review Board Abstract) (same). A chart of the ratings 

the SSEB assigned each offeror for the Production Capability and Experience factors and 

each offeror’s total evaluated price is below: 

Offeror Production Capability Experience Total Evaluated Price

[* * *] Good Relevant $[* * *]

Entwistle Good Relevant $69,063,943

[* * *] Good Relevant $[* * *]

[* * *] Acceptable Somewhat Relevant $[* * *]

[* * *] Marginal Not Relevant $[* * *]

Mil-Mar Outstanding Very Relevant $[* * *]

9

 The amendments to Solicitation No. W56HZV-11-R-0171 (the Solicitation or Request 

for Proposals (RFP)) issued on June 6, 2012 “clarif[ied] certain matters related to projected 

delivery requirements.” AR 1878 (Source Selection Decision Document (SSDD)). 

 
[* * *] Marginal Not Relevant $[* * *]

AR 1879 (SSDD).

C. Requests for Clarification 

Because Entwistle’s total evaluated price was “substantially less than any other 

offeror’s,” the government sought “to clarify” Entwistle’s pricing. Def.’s Mot. 10; see 

Pl.’s Mot. 15-16 (stating Entwistle’s “extremely low” price “forced the Agency to 

consider the price realism of Entwistle’s proposal to ascertain whether or not it reflected 

an understanding of the technical requirements of the Hippo or would expose the 

Government to undue risk”). As described above, see supra Part I.A.1, Section L.6.6 of 

the Solicitation provided that, pursuant to FAR 15.306(a), the government could “request 

additional or more detailed price breakdown data to support its determination of price 

reasonableness” as a clarification, AR 266 (RFP).

On July 25, 2012 the government issued to Entwistle four requests for clarification 

that, defendant contends, were permissible under FAR 15.306(a) and Section L.6.6 of the 

Solicitation.

10 See AR 1772-73 (Initial PER); AR 1844-54 (four requests for 

clarification); cf. supra Part I.A.1 (discussing Section L.6.6). The four requests for 

clarification are below: 

[(1)] Please substantiate your proposed tank and engine price with quotes, 

invoices, and item/material specifications. 

. . . . 

[(2)] Please clarify the cost (material and labor) associated with fabricating 

the ISO frame. 

. . . . 

[(3)] Please address the discrepancies in your direct labor hours as 

described below:

- There is a difference in the assembly hours shown in the [P]rice 

Volume . . . and the Production [Capability] Volume . . . . Please 

clarify which assembly hour reference is correct and provide the 

basis for the total hours identified.

10 Plaintiff contends that two of these exchanges constituted discussions. See Compl. ¶¶ 

14-15; Pl.’s Mot. 18-20. The court addresses this dispute in Part III.C below. 

 
- Total direct hours in the Price Volume . . . do not correspond to the 

direct labor cost . . . . Please clarify hours and cost. 

. . . . 

[(4)] Please clarify how your proposed labor hours are adequate to carry out 

the steps necessary for production of the [FAT] items and production 

quantities.

AR 1773 (Initial PER). 

Entwistle responded to the four requests for clarification two days later, on July 

27, 2012. Id. at 1772. In response to the first request for clarification, Entwistle attached 

quotations from its proposed subcontractors for the water tank and engine. Id. at 1773; 

see id. at 1775 (water tank quotation), 1776 (engine quotation). In response to the second 

request for clarification, Entwistle stated: “The estimated material cost for the frame is 

$[* * *]. The estimated labor for fabricating the frame is [* * *] hours.” Id. at 1773. In 

response to the third request for clarification, Entwistle stated: “The [P]rice Volume . . .

represents the final [direct labor hour] estimate[],” and that “[t]he total direct [labor] 

hours in the Price Volume . . . should reflect [* * *] hours”; Entwistle also attached a 

corrected Attachment 16 that incorporated the clarification to its total direct hours. See

id. (showing attachment); see id. at 1777 (corrected Attachment 16); AR 1833 (Entwistle 

Price Evaluation Report (Entwistle PER)) (addressing Entwistle’s response to the third 

request for clarification). In response to the fourth request for clarification, Entwistle 

stated: “The production labor hours were estimated for each labor category based on our 

understanding of the solicitation requirements. Based on our experience with design 

programs, a factor was applied to the production hours to arrive at the first article labor 

hours.” AR 1774 (Initial PER).

D. Price Evaluation Reports 

After the Agency received Entwistle’s responses to its requests for clarification, 

the SSEB prepared the following price evaluation reports: (1) the Initial Price Evaluation 

Report, dated July 31, 2012, which was prepared as to all offerors, see AR 1765 (Initial 

PER); (2) the Price Evaluation Report, dated August 8, 2012, and the Addendum to the 

Price Evaluation Report, dated August 15, 2012, which were specific to Entwistle, see 

AR 1782 (Entwistle PER); AR 1832 (Addendum to the Entwistle Price Evaluation Report 

(Entwistle PER Addendum)); and (3) the Final Price Evaluation Report, dated August 23, 

2012, which was prepared as to all offerors, see AR 1835 (Final Price Evaluation Report 

(Final PER)). The court discusses each evaluation report, in turn, below. 

1. The Initial Price Evaluation Report
The SSEB prepared the Initial Price Evaluation Report in accordance with Section 

M.7.1 of the Solicitation, which required the government to assess “‘the reasonableness 

of the proposed prices to accomplish the solicitation requirements.’” AR 1766 (Initial 

PER) (quoting Section M.7.1 of the Solicitation); cf. AR 278 (RFP) (stating that 

“[r]easonableness exists when an offered price does not exceed what would be incurred 

by a prudent person in the conduct of competitive business”). The SSEB concluded that 

each offeror’s total proposed price was reasonable based on adequate price competition. 

AR 1768-70 (Initial PER); cf. id. at 1767 (defining “adequate price competition” under 

FAR 15.403-1(c)(1)). 

“For evaluation purposes to test price realism,” the SSEB reviewed “five major 

items from each offeror’s Bill of Material [in Attachment 16]”: the frame, water tank, 

engine, hose reel and pump. Id. at 1768. The SSEB verified that, with the exception of 

Entwistle and [* * *], all of the offerors included the costs of each of these five items in 

their Bill of Material. See id. at 1768-70. Although Entwistle failed to include the cost 

of the frame in its Bill of Material, the SSEB verified that this was because Entwistle

planned to “build and fabricate the frame” rather than purchase it.11 See id. at 1768. 

Moreover, recognizing that Entwistle’s price was “very low in comparison to the 

other offerors as well as in comparison to past history,” the SSEB attempted to verify 

certain information in Attachment 16 of Entwistle’s Price Volume. Id. For example, the 

SSEB verified Entwistle’s proposed cost of the water tank “via telephone with the tank 

vendor.” Id. Notwithstanding the fact that Entwistle’s “total price appear[ed] to be very 

low,” the SSEB concluded that it “ha[d] no basis to question the reasonableness of the 

total price offered by Entwistle.” Id.

2. The Entwistle Price Evaluation Report and Addendum to the Entwistle 

Price Evaluation Report

On August 8, 2012 the SSEB prepared a Price Evaluation Report specific to 

Entwistle, in which the SSEB evaluated Entwistle’s proposal “for reasonableness and 

realism.” AR 1782-83 (Entwistle PER). On August 15, 2012 the SSEB prepared an 

Addendum to the Price Evaluation Report, in which the SSEB “provide[d] additional 

evaluation and analysis of Entwistle’s responses to the Government’s requests for 

clarification[].”12 AR 1832 (Entwistle PER Addendum); cf. supra Part I.C (discussing 

11 Similarly, [* * *] did not include the cost of either the water tank or the frame in its 

Bill of Material because it planned to “build[] and fabricat[e] the tank and frame.” See AR 1769-

70 (Initial PER).

12 As plaintiff correctly points out, see Pl.’s Mot. 17, although the Initial Price 

Evaluation Report included the four requests for clarification and responses by The Entwistle 

Company (Entwistle), see AR 1772-74 (Initial PER), the Source Selection Evaluation Board 

(SSEB) did not document any evaluation or analysis of Entwistle’s responses until it prepared its 

 
the government’s requests for clarification). The SSEB concluded in both reports that the 

total evaluated price offered by Entwistle was both reasonable and realistic. See AR

1790 (Entwistle PER); AR 1833 (Entwistle PER Addendum). 

The Entwistle Price Evaluation Report included a comparison of the items that 

Entwistle listed in its Bill of Material--that is, items with an estimated cost of $500 or 

more--with the historical prices of these items and prices culled from market research. 

AR 1786 (Entwistle PER). Entwistle’s [* * *] was the water tank, which Entwistle 

planned to purchase from its proposed subcontractor, [* * *], at a cost of $[* * *]. Id. 

The historical price for the water tank, which was derived from previous procurements 

with Mil-Mar, was $[* * *]. See id.; cf. supra note 6 (discussing the sole-source contracts 

awarded to Mil-Mar for the production of Hippos). However, because Mil-Mar had 

purchased the water tank as a framed unit and because Entwistle planned to purchase the 

water tank and manufacture the frame, the SSEB considered impossible “an ‘apples to 

apples’ comparison between [the historical price of] the [water] tank/frame and the 

[water] tank that Entwistle is offering.” AR 1787 (Entwistle PER); cf. id. at 1785 (stating 

that “Entwistle’s total proposed unit price for the HIPPO [* * *] is less than the historical 

negotiated price for [Mil-Mar’s] tank/frame”). 

Because Entwistle’s water “tank price was so much lower than [the historical 

price],” and in an attempt to “mitigate[] some of the risk inherent with using a new 

source,” the SSEB sought to verify the price of the water tank that Entwistle proposed to 

purchase from [* * *]. Id. at 1786. Although the SSEB did find an [* * *] water tank 

truck (priced at $[* * *]) on the price list of the General Services Administration (GSA) 

online database system, id.; see also AR 1815-17 (GSA price list guide); AR 1818-31 

(GSA price list for [* * *]), it could not find a “stand alone” [* * *] water tank, AR 1786

(Entwistle PER) (internal quotation marks omitted). The SSEB therefore “contacted 

[* * *] and asked if it [sold] the water tank on a stand-alone basis and at what price.” Id. 

[* * *] responded that the price for a stand-alone water tank “would be ‘around 

$[* * *].’” Id. The SSEB found that “[t]his research pricing substantiates the validity of 

the [price of the water] tank Entwistle proposed,” id., and concluded that Entwistle’s 

“proposed price for the water tank certainly appear[ed] reasonable,” id. at 1787; see also

id. at 1786 (stating that “[t]he tank price is further supported by the [* * *] GSA price list 

for the entire vehicle with tank and pumping system”).

The SSEB also observed that “Entwistle did not comply with Section L.6 

instructions to offerors, in its entirety.” Id. at 1785. Specifically, Entwistle “did not 

provide all of the requested information in Attachment []16 under the [Bill of Material].” 

Id. For example, Entwistle failed to include the part numbers for the items listed in its 

August 15, 2012 Addendum to the Price Evaluation Report, see AR 1832 (Addendum to the 

Entwistle Price Evaluation Report).

 
Bill of Material. Id. at 1786; cf. Compl. ¶ 69 (listing the information that Entwistle failed 

to include in its Bill of Material); infra Part III.C (discussing Entwistle’s failure to 

include the cost of the frame in the Bill of Material). The SSEB concluded, however, that 

“the data that was omitted was not significantly material to reject [Entwistle’s] proposal.” 

AR 1785 (Entwistle PER); cf. AR 276 (RFP) (providing that an offeror’s proposal may 

be rejected if “[t]he proposal fails to meaningfully respond to the instructions in Section 

L of this solicitation” such as by “fail[ing] to provide any of the data and information 

required in Section L”). 

In the Addendum to the Price Evaluation Report, the SSEB examined Entwistle’s 

responses to the government’s requests for clarification. AR 1832 (Entwistle PER 

Addendum); cf. supra Part I.C (discussing the government’s requests for clarification). 

Owing to certain errors in Entwistle’s Price Volume not at issue here, the SSEB found

that “Entwistle ha[d] understated [its] direct costs by a total of $[* * *]” and adjusted 

Entwistle’s price accordingly. See AR 1833 (Entwistle PER Addendum). The SSEB 

found this amount to be to be “negligible,” however, given that it was “only [* * *]% of 

the total proposed price” and could likely “be ‘negotiated’ downward between 

[Entwistle] and [* * *].” Id. at 1833-34. Notably, the SSEB did not adjust Entwistle’s 

price as a result of the exchange between Entwistle and the government regarding 

Entwistle’s estimated cost to manufacture the Hippo frame. Cf. id. at 1833 (noting that, 

in response to the government’s second request for clarification, Entwistle stated that its 

estimated material cost for the frame was “$[* * *] and the estimated labor for fabricating 

the frame is [* * *] hours”). 

3. The Final Price Evaluation Report

On August 23, 2012 the SSEB prepared a report titled “Final Price Evaluation 

Report,” AR 1835 (Final PER) (capitalization omitted), the purpose of which was “to 

determine if the offers [were] reasonable and realistic,” id. at 1837. The Final Price 

Evaluation Report included much of the same information that was provided in the Initial 

Price Evaluation Report. Compare id. at 1835-43 with AR 1765-74 (Initial PER). Both 

reports, for example, indicated that Entwistle’s water tank price had been “verified via 

telephone with the tank vendor.” See AR 1839 (Final PER); AR 1768 (Initial PER). The 

Final Price Evaluation Report, however, added that Entwistle’s water tank price had also

been verified, pursuant to requests for clarification, “via vendor quotation.” AR 1839 

(Final PER). As it did in the Initial Price Evaluation Report, see AR 1768 (Initial PER), 

the SSEB concluded in the Final Price Evaluation Report that it “ha[d] no basis to 

question the reasonableness of the total price offered by Entwistle,” AR 1839 (Final 

PER). 

E. Best Value Analysis and Contract Award 
On September 28, 2012 the SSA prepared a thirty-one-page Source Selection 

Decision Document (SSDD) in which he concluded that, because “the proposal from 

[Entwistle] represents the best value to the Government,” award should be made to 

Entwistle. AR 1878, 1908 (SSDD). In reaching this conclusion, the SSA reviewed and 

adopted the ratings the SSEB assigned each offeror under the Production Capability and 

Experience factors. See AR 1878-79; cf. supra Part I.B (discussing the ratings assigned 

by the SSEB). The SSA also compared the proposals submitted by the offerors “utilizing 

a ‘trade-off’ process, giving appropriate consideration to the evaluation criteria set forth 

in the RFP and their relative importance.” AR 1878 (SSDD); see id. at 1880-1904 

(comparing Entwistle’s proposal against each of the other offerors’ proposals). The court 

addresses the SSA’s best value trade-off analysis in more detail in Part III.E below.

The SSA also stated that, because Entwistle’s price was “significantly lower” than 

that of the next lowest offeror, the contracting officer had “employed cost analysis 

techniques to determine whether it [was] reasonable to conclude that Entwistle [could] 

perform the requirements of the contract based on its offered price.” Id. at 1906; cf. AR 

276 (RFP) (providing that the government may reject a proposal that “contains any 

unexplained significant inconsistency between the proposed effort and cost and/or price, 

which implies the offeror . . . has an inherent misunderstanding of the scope of work, 

or . . . has an inability to perform the resultant contract”). The cost analysis techniques 

included “a comparison of cost elements, and a review of Entwistle’s labor hours and 

material type(s) to determine risk of successful performance at the offered price.” AR 

1906 (SSDD). The SSA reviewed the contracting officer’s “assessment of price 

fair[ness] and reasonableness to assure that awarding the contract at Entwistle’s proposed 

price [was] prudent,” id. at 1905, and concluded that Entwistle’s “total proposed price [of 

$67,960,541] [did] not appear to be unreasonably low,” id. at 1908. The court addresses 

the SSA’s cost analysis in more detail in Part III.D below.

F. Procedural History

Mil-Mar learned that it was not selected for award on September 28, 2012. AR 

2439 (Government Accountability Office (GAO) Protest). Plaintiff filed a protest with 

the GAO on October 9, 2012, see id. at 2435, and, on January 17, 2013, GAO denied 

Mil-Mar’s protest, AR 2637-38 (GAO Decision). On February 20, 2013, Mil-Mar filed 

its Complaint with this court. See generally Compl. (filed February 20, 2013).

II. Legal Standards

A. Jurisdiction

The Tucker Act, as amended by the Administrative Dispute Resolution Act of 

1996, codified in relevant part at 28 U.S.C. § 1491(b)(1) (2006), affords the United States 

Court of Federal Claims 
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[,] . . . [regardless of] whether suit is instituted before 

or after the contract is awarded.

28 U.S.C. § 1491(b)(1). A plaintiff therefore does not have standing to bring a protest 

action in this court unless it is an “interested party.” See id.; [* * *] Containers, Inc. v. 

United States, 103 Fed. Cl. 471, 479 (2012). Because “standing is a jurisdictional 

requirement, a protestor’s failure to establish standing precludes a ruling on the merits.” 

Sci. Applications Int’l Corp. v. United States (Sci. Applications), 102 Fed. Cl. 644, 650 

(2012) (internal quotation marks omitted).

To show that it is an “interested party” within the context of § 1491(b)(1), a 

plaintiff must “establish that it (1) is an actual or prospective bidder, and (2) possesses the 

requisite direct economic interest.” Rex Serv. Corp. v. United States, 448 F.3d 1305, 

1307 (Fed. Cir. 2006); see also Am. Fed’n of Gov’t Emps., AFL-CIO v. United States, 

258 F.3d 1294, 1302 (Fed. Cir. 2001) (defining an “interested party” as an “actual or 

prospective bidder[] or offeror[] whose direct economic interest would be affected by the 

award of the contract or by failure to award the contract”). To establish that a plaintiff’s 

“direct economic interest” is affected in the post-award bid protest context, a plaintiff 

“must show it would have been ‘a qualified bidder,’ i.e., that it had a ‘substantial chance’ 

of being awarded the contract.” See Microdyne Outsourcing, Inc. v. United States, 72 

Fed. Cl. 230, 232 (2006) (quoting Myers Investigative & Sec. Servs., Inc. v. United 

States, 275 F.3d 1366, 1370-71 (Fed. Cir. 2002)). 

B. Motion for Judgment on the Administrative Record 

Motions for judgment on the administrative record are governed by Rule 52.1(c) 

of the Rules of the United States Court of Federal Claims (RCFC). See RCFC 52.1(c). A 

motion for judgment upon the administrative record is distinguishable from a motion for 

summary judgment. See Bannum, Inc. v. United States, 404 F.3d 1346, 1355 (Fed. Cir. 

2005); RCFC 52.1 rules committee notes (2006) (“Summary judgment standards are not 

pertinent to judicial review upon an administrative record.”). When evaluating crossmotions for judgment on the administrative record, the court considers “whether, given 

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

evidence in the record.” DMS All-Star Joint Venture v. United States (DMS), 90 Fed. Cl. 

653, 661 (2010) (citing Bannum, Inc., 404 F.3d at 1356-57). “The existence of a 

question of fact thus neither precludes the granting of a motion for judgment on the 

administrative record nor requires this court to conduct a full blown evidentiary 
proceeding.” CRAssocs., Inc. v. United States, 102 Fed. Cl. 698, 710 (2011) (citing, inter 

alia, Bannum, Inc., 404 F.3d at 1356), aff’d, 475 F. App’x 341 (Fed. Cir. 2012).

“The standards and criteria governing the court’s review of agency decisions vary 

depending upon the specific law to be applied in particular cases.” RCFC 52.1 rules 

committee notes (2006). Here, the standards of review and burdens of proof and 

persuasion are set by the Administrative Procedure Act (APA), 5 U.S.C. § 706 (2006), as 

interpreted and applied in binding precedent, see 28 U.S.C. § 1491(b)(4); NVT Techs., 

Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004); see also infra Part II.C

(describing APA standard). 

C. Standard of Review

“A bid protest proceeds in two steps.” Bannum, Inc., 404 F.3d at 1351. The first 

step is to demonstrate error, that is, to show that the agency acted in an arbitrary and 

capricious manner, without a rational basis or contrary to law. See id. The second step is 

to determine whether the error was prejudicial. Id.

1. The Plaintiff Must Establish Error

Under the APA, an agency’s decision shall be set aside if it is “arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 

706(2)(A); see also Galen Med. Assocs., Inc. v. United States (Galen), 369 F.3d 1324, 

1329 (Fed. Cir. 2004) (applying the APA standard). Under the arbitrary or capricious 

standard of review, an agency’s decision must be sustained if it has a rational basis. See

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co. (State 

Farm), 463 U.S. 29, 43 (1983). “The arbitrary and capricious standard applicable here is 

highly deferential. This standard requires a reviewing court to sustain an agency action 

evincing rational reasoning and consideration of relevant factors.” Advanced Data 

Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000) (citing Bowman 

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

reviewing court may not substitute its judgment for that of the agency. State Farm, 463 

U.S. at 43. The question for the court is not whether the agency is correct or whether the 

court would have reached the same conclusion as the agency, but whether there was a 

reasonable basis for the agency’s actions. See Honeywell, Inc. v. United States, 870 F.2d 

644, 648 (Fed. Cir. 1989) (“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.” (internal quotation marks omitted)). 

In the procurement context, “a bid award may be set aside if either: (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 (Impresa), 238 F.3d 1324, 1332 (Fed. Cir. 2001). “[T]his 

standard 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.’” 

CRAssocs. Inc., 102 Fed. Cl. at 710 (second alteration in original) (quoting Balt. Gas & 

Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105 (1983)). When a 

plaintiff challenges a procurement based upon a violation of statutes or regulations, “the 

disappointed bidder must show ‘a clear and prejudicial violation of applicable statutes or 

regulations.’” Impresa, 238 F.3d at 1333 (quoting Kentron Haw., Ltd. v. Warner, 480 

F.2d 1166, 1169 (D.C. Cir. 1973)).

When a plaintiff challenges a procurement based upon a claim that a procurement 

official’s decision is irrational, the court must determine whether the procuring agency 

“provided a coherent and reasonable explanation of its exercise of discretion.” Id. at 

1332-33 (internal quotation marks omitted). This entails an examination of whether the 

procuring 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 

reached a decision that was “‘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 (Ala. Aircraft), 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting State Farm, 

463 U.S. at 43). The scope of review under this standard is narrow and the court “should 

intervene only when it is clearly determined that the agency’s determinations were 

irrational or unreasonable.” Baird Corp. v. United States, 1 Cl. Ct. 662, 664 (1983). 

“The wide discretion afforded contracting officers extends to a broad range of 

procurement functions, including the determination of what constitutes an advantage over 

other proposals.” One Largo Metro, LLC v. United States (One Largo), 109 Fed. Cl. 39, 

74 (2013). The discretion afforded to contracting officers is greater in negotiated 

procurements, as compared to sealed bid procurements, and the protester has an even 

“heavier burden of proof.” L-3 Commc’ns EOTech, Inc. v. United States (L-3 

Commc’ns I), 83 Fed. Cl. 643, 650 (2008), appeal dismissed by stipulation, 356 F. App’x 

390 (Fed. Cir. 2009); cf. AR 71 (RFP) (indicating that the Solicitation used “Negotiated” 

as opposed to “Sealed” bidding). A plaintiff’s burden is further “elevated where the 

solicitation contemplates award on a best value basis.” Brooks Range Contract Servs., 

Inc. v. United States (Brooks Range), 101 Fed. Cl. 699, 707 (2011) (internal quotation 

marks omitted); cf. AR 276 (RFP) (indicating that the Solicitation contemplated award on 

a best value basis). “Thus, the protestor’s burden is especially heavy in negotiated, best 

value procurements,” L-3 Commc’ns I, 83 Fed. Cl. at 650, where a contracting officer is 

afforded a substantial degree of deference, and, accordingly, “[a]n agency’s contract 

award is . . . least vulnerable to challenge when based upon a best value determination,” 

PlanetSpace Inc. v. United States, 96 Fed. Cl. 119, 125 (2010) (citing Galen, 369 F.3d at 

1330). 
In determining whether an agency acted rationally, the court is also particularly 

deferential to the agency’s technical evaluation. L-3 Commc’ns EOTech, Inc. v. United 

States, 87 Fed. Cl. 656, 664 (2009); see E.W. Bliss Co. v. United States, 77 F.3d 445, 449 

(Fed. Cir. 1996) (stating that “such matters as technical ratings” involve “the minutiae of 

the procurement process . . . that a court will not second guess”). “This is because the 

evaluation of proposals for their technical excellence or quality is a process that often 

requires the special expertise of procurement officials, and thus reviewing courts give the 

greatest deference possible to these determinations.” One Largo, 109 Fed. Cl. at 74 

(internal quotation marks and alteration omitted). 

2. The Plaintiff Must Establish Prejudice

In order to prevail in a bid protest, the plaintiff must demonstrate both that an error 

occurred and that such error was prejudicial. Data Gen. Corp. v. Johnson, 78 F.3d 1556, 

1562 (Fed. Cir. 1996); see Alfa Laval Separation, Inc. v. United States (Alfa Laval), 175 

F.3d 1365, 1367 (Fed. Cir. 1999) (“To prevail in a bid protest, a protester must show a 

significant, prejudicial error in the procurement process.”). If the court finds that there is 

no error, there is no prejudice and the government’s decisions must be left undisturbed. 

See Alfa Laval, 175 F.3d at 1367 (stating that to establish prejudice and prevail, a 

protester must show that it had a substantial chance of receiving the award “but for that 

error”). Furthermore, “non-prejudicial errors in a bid process do not automatically 

invalidate a procurement.” Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1380 

(Fed. Cir. 2009). “In the context of a post-award bid protest, the plaintiff must 

demonstrate substantial prejudice by showing that there was a substantial chance it would 

have been awarded the contract but for the agency’s error.” Brooks Range, 101 Fed. Cl. 

at 707 (internal quotation marks omitted); see Bannum, Inc., 404 F.3d at 1353 (stating 

that “[t]o establish ‘significant prejudice’ [the plaintiff] must show that there was a 

‘substantial chance’ it would have received the contract award but for the [alleged]

errors” (quoting Info. Tech. & Applications Corp. v. United States (ITAC), 316 F.3d 

1312, 1319 (Fed. Cir. 2003) and Alfa Laval, 175 F.3d at 1367)). 

III. Discussion 

A. Plaintiff Has Standing to Bring This Protest 

Although the parties do not challenge plaintiff’s standing to bring this protest, 

because “standing is a jurisdictional requirement,” Sci. Applications, 102 Fed. Cl. at 650, 

the court addresses this issue sua sponte, John R. Sand & Gravel Co. v. United States, 

457 F.3d 1345, 1353 (Fed. Cir. 2006) (“Under federal rules any court at any stage in the 

proceedings may address jurisdictional issues. Thus, even if the issue is not properly 

raised, this court sua sponte may consider all bases for the trial court’s jurisdiction.”
(internal quotation marks and alteration omitted)), aff’d, 552 U.S. 130 (2008).

13 For the 

following reasons, the court finds that Mil-Mar is an interested party--that is, that MilMar is an actual bidder and possesses a direct economic interest in the award of the 

Solicitation--and therefore has standing to bring this protest. Cf. Rex Serv. Corp., 448 

F.3d at 1307 (describing requirements to be an “interested party”).

Mil-Mar is an actual bidder that has submitted a proposal in response to the 

Solicitation, see supra Part I.B, and therefore meets the first prong of the interested party 

test, cf. Orion Tech., Inc. v. United States, 102 Fed. Cl. 218, 226 (2011) (finding that the 

first prong was met when there was “no dispute that [the] plaintiff [was] an actual 

bidder”), aff’d, 704 F.3d 1344 (Fed. Cir. 2013); Chenega Mgmt., LLC. v. United States

(Chenega), 96 Fed. Cl. 556, 571 (2010) (finding that the plaintiff was an actual bidder 

because it had submitted a proposal in response to the solicitation). With respect to the 

second prong of this test, Mil-Mar has a direct economic interest in the award because 

Mil-Mar is the incumbent contractor and, in fact, the only contractor ever to have 

produced Hippos, AR 1767 (Initial PER), and received the highest ratings in both the 

Production Capability and Experience factors, AR 1879 (SSDD). If the court were to 

find in plaintiff’s favor and the Agency were obligated to reopen the procurement, see

Compl. ¶ 139 (requesting, inter alia, that the court order the Agency “to open discussions, 

request a final proposal revision from all offerors, [and] re-evaluate proposals in 

accordance with the Solicitation”); Pl.’s Mot. 37-38 (requesting, inter alia, that the court 

order the Agency to “re-compete the contract”), the court finds that Mil-Mar would have 

a substantial chance of receiving an award, cf. Impresa, 238 F.3d at 1334 (finding that the 

plaintiff had standing where, assuming that its protest was successful, the plaintiff had a 

substantial chance of being awarded the government’s re-solicitation of the contract); 

13 The court addresses the issue of prejudice twice in bid protest disputes. DynCorp Int’l 

LLC v. United States, 76 Fed. Cl. 528, 536 n.4 (2007). The court first “weigh[s] prejudice as it 

pertains to standing, and then more thoroughly weigh[s] prejudice to determine whether a 

plaintiff shall be afforded relief.” Id. “This first showing of prejudice to the protestor, in order 

to prove standing, must occur before reaching the merits of the bid protest review.” Id. (citing 

Info. Tech. & Applications Corp. v. United States (ITAC), 316 F.3d 1312, 1319 (Fed. Cir. 2003) 

(stating that “because the question of prejudice goes directly to the question of standing, the 

prejudice issue must be reached before addressing the merits”)). “[T]he prejudice requirement 

for standing is less stringent than that required for success on the merits.” Allied Tech. Grp., Inc. 

v. United States, 94 Fed. Cl. 16, 37 (2010), aff’d, 649 F.3d 1320 (Fed. Cir. 2011); see Global 

Computer Enters., Inc. v. United States, 88 Fed. Cl. 350, 401 (2009) (“A prejudice determination 

for the purpose of evaluating standing is a limited review that seeks minimum requisite evidence 

necessary for plaintiff to demonstrate prejudice and therefore standing.” (internal quotation 

marks omitted)), modified, 88 Fed. Cl. 466 (2009). These two prejudice requirements have been 

viewed as “incongruent, although slightly overlapping, standards,” Dyonyx, L.P. v. United 

States, 83 Fed. Cl. 460, 466 n.2 (2008), and the application of the two standards “may yield 

different results,” Sys. Application & Techs., Inc. v. United States, 100 Fed. Cl. 687, 707 n.15 

(2011), aff’d, 691 F.3d 1374 (Fed. Cir. 2012). 

 
Esterhill Boat Serv. Corp. v. United States, 91 Fed. Cl. 483, 486 (2010) (“If the 

allegations are correct and the Government were obligated to rebid the contracts, [the] 

plaintiff could win with resubmitted proposals.”), appeal dismissed, 452 F. App’x 947 

(Fed. Cir. 2010). The court is satisfied that Mil-Mar is an interested party within the 

meaning of 28 U.S.C. § 1491(b)(1) and therefore has standing to bring this bid protest 

action.

B. The Agency Treated the Offerors Equally and Rationally in 

Its Evaluation of Experience

Plaintiff argues that the Agency’s evaluation of the offerors’ experience lacked a 

rational basis and violated FAR 1.602-2, see Pl.’s Mot. 6, 15, which requires contracting 

offers to “[e]nsure that contractors receive impartial, fair, and equitable treatment,” FAR 

1.602-2 (2012). Specifically, plaintiff contends the Agency failed to treat offerors fairly 

and impartially by “consistently and favorably consider[ing] experience submitted by 

Entwistle that did not include information required by Section L.5.4[] of the RFP, but . . . 

not extend[ing] the same treatment to the other offerors.” Pl.’s Mot. 6; see also Compl. ¶ 

128 (“[T]he Agency repeatedly treated Entwistle more favorably than other offerors and 

considered its experience, despite the fact it was missing information required by the 

RFP, but refused to consider . . . missing information required by the RFP when it was 

offered by another offeror.”). Defendant counters that “[t]he agency’s differing 

evaluations of offerors’ experience were rationally based on differences in the offerors’ 

proposals.” Def.’s Mot. 20; see also id. at 18 (“[T]he agency’s detailed assessments of 

offerors’ experience were carefully tailored to respond to the varying content of each 

proposal; differences in evaluations resulted from differences among the proposals.”). 

Defendant also argues that, even if plaintiff could establish that the Agency treated the 

offerors unequally and irrationally, plaintiff could not establish prejudice because none of 

plaintiff’s unequal treatment claims actually involves Mil-Mar. Id. at 29. 

As discussed above in Part I.A.1, Section L.5 of the Solicitation addressed the 

Experience factor, under which offerors were to identify up to five “recent and relevant” 

contracts that had been performed in the past three years that were “comparable in scope 

to the requirements of this [Solicitation].” AR 264-65 (RFP). Section L.5.4 provided 

that, for each of the contracts identified, proposals were to include the following 

information: the contract numbers and types; contact information for the government or 

commercial contracting authority, the technical representative of the government or 

commercial contracting authority and the administrative and procuring contracting 

officers; copies of the SOW provisions in each contract that demonstrated relevant 

experience with the five SOW requirements (comparable items, technical manuals, 

delivery, low temperature requirement and welding); and “[a] discussion of specific 

similarities between these contract [SOWs] and the [SOW] herein.” Id. at 265. Section 

L.5.4 further provided that “[f]ailure to provide the information requested under [Section] 

L.5.4 . . . so that the Government can verify claimed experience may result in a 
determination that your proposal is unacceptable and the elimination of your proposal

from consideration for award.” Id.

In this section, the court first provides background information regarding the 

Agency’s evaluation of the offerors’ experience and then addresses the parties’

arguments. For the reasons stated below, the court finds that plaintiff has failed to show 

that the Agency violated FAR 1.602-2 or otherwise acted without a rational basis, and 

that, even if plaintiff could make this showing, plaintiff has failed to establish any 

resulting prejudice.

1. The Experience of Entwistle, [* * *], [* * *] and [* * *]

Plaintiff claims that the Agency treated Entwistle more favorably than it treated

[* * *], [* * *] and [* * *], see Pl.’s Mot. 10-13, all offerors that, according to plaintiff, 

“claimed experience in a manner similar to Entwistle,” see id. at 7. The court now 

provides a brief summary of the information submitted by each of these offerors to 

describe its experience.

The Experience Volume submitted by Entwistle consisted of approximately 

twenty-nine pages and included descriptions of end products, excerpts from purchase 

descriptions, and SOW provisions for one contract.14 See AR 1699-1727 (Entwistle’s 

Revised Experience Volume); see also AR 1757-59 (Entwistle’s Final Evaluation Report) 

(summarizing the contracts submitted by Entwistle). The first contract Entwistle 

identified was a contract for the production of Fuels Operational Readiness Capability 

Equipment (FORCE) Systems15 (FORCE contract), and, as supporting material, 

Entwistle included a description of the program requirements, a list of specifications 

common to both the FORCE contract and the Solicitation and several pages of excerpts 

from the FORCE contract’s SOW and associated purchase descriptions. See AR 1702-12

(Entwistle’s Revised Experience Volume). The second contract Entwistle identified was 

14 The record includes two Experience Volumes submitted by Entwistle, the original 

Experience Volume dated May 21, 2012, see AR 1628-55 (Entwistle’s Original Experience 

Volume), and a revised Experience Volume dated June 8, 2012, AR 1699-1727 (Entwistle’s 

Revised Experience Volume). As discussed above, see supra Part I.B, Entwistle’s Revised 

Experience Volume was submitted in response to a June 6, 2012 amendment to the Solicitation, 

which “clarif[ied] certain matters related to projected delivery requirements,” AR 1878 (Source 

Selection Decision Document (SSDD). 

15 A Fuels Operational Readiness Capability Equipment (FORCE) System is “essentially 

a Type 3 hydrant fuel delivery system” and “is designed to provide up to 2700 Gallons per 

Minute . . . of fuel to multiple aircraft.” AR 1757 (Entwistle’s Final Evaluation Report).

 

 
a contract for the production of Tank Cleaning Vacuum Systems16 (Vacuum contract), 

and, as supporting material, Entwistle provided a summary of the principal components 

of the end product and a list of similarities between the Solicitation and the Vacuum 

contract--using excerpts from the associated purchase descriptions. See id. at 1713-18. 

The third contract Entwistle identified was a contract for the production of Shipboard 

Fire Fighting Vehicles17 (Fire Fighting Vehicle contract) and, as supporting material, 

Entwistle provided a description of the end product and identified three military standards

required by the Fire Fighting Vehicle contract. See id. at 1719-23. The fourth and fifth 

contracts Entwistle identified were contracts of [* * *], “Entwistle’s proposed subcontractor for the water tank for the HIPPO system,” for the production of Potable Water 

Tank Trucks and, as supporting material, Entwistle provided a description of the end 

product.18 See id. at 1724-27. 

The Experience Volume submitted by [* * *] consisted of approximately twentyseven pages and included descriptions of [* * *]’s responsibilities and performance under

each contract and also included SOW provisions for two of its contracts. See AR 3473-

99 ([* * *]’s Experience Volume); see also AR 4302-03 ([* * *]’s Final Evaluation 

Report) (summarizing the contracts submitted by [* * *]). For [* * *]’s first contract, a 

contract for the production of containerized kitchens,19 [* * *] included a one-page 

discussion that primarily focused on [* * *]’s quality of performance and ability to foster 

working relationships with customers, engineers and contracting officers. See AR 3481-

82 ([* * *]’s Experience Volume). For [* * *]’s second contract, a contract for the 

production of Reverse Osmosis Water Purification Units (ROWPU contract), [* * *]

included an excerpt from the ROWPU contract’s SOW and a brief description of [* * *]’s 

responsibilities and delivery requirements under the ROWPU contract. See id. at 3482-

16 “The tank cleaning vacuum system is a rugged piece of equipment” that “remove[s] all 

types of oily water and sludge from bilges, lubricating oil tanks and fuel tanks during cleaning 

operations, while maintaining a constant suction on bilges.” AR 1714 (Entwistle’s Revised 

Experience Volume).

17 “The Shipboard Fire Fighting Vehicle is a self-propelled, self[-]contained all weather 

fire fighting vehicle. It is used on aircraft carriers and amphibious assault ships to extinguish a 

fire or limit the severity of the fire until other systems can be activated.” Id. at 1720.

18 Entwistle also included an excerpt from a military performance specification for one 

of the [* * *] contracts, see id. at 1726, but the SSEB found the application of this specification 

to the Solicitation questionable and, “[a]s a result, [Entwistle] was not accorded credit for the 

specification excerpts, and [was] assessed as having not provided verification of effort for this 

contract,” AR 1760 (Entwistle’s Final Evaluation Report). 

19 Containerized kitchens are “complex modified [International Organization for 

Standardization (ISO)] container system[s].” AR 3481 ([* * *]’s Experience Volume). 

 
83. For [* * *]’s third contract, a contract for the production of shower facilities and 

water heaters, [* * *] included a brief description of the product and an excerpt from a 

“Contractor Performance Assessment Report.” See id. at 3484-85. For [* * *]’s fourth 

contract, a contract for the production of shower facilities, [* * *] included a oneparagraph description of [* * *]’s responsibilities and performance under the contract. 

See id. at 3485. Finally, for [* * *]’s fifth contract, a contract for the production of 

Expeditionary Tricon Systems (Tricon contract),20 [* * *] included approximately twelve 

pages from the Tricon contract’s SOW, id. at 3487-99, a brief description of the product 

and a few paragraphs describing [* * *]’s responsibilities and performance under the 

Tricon contract. See id. at 3486-87. 

The Experience Volume submitted by [* * *] consisted of approximately eight

pages and focused primarily on describing the end product of each contract. See AR 

4241-48 ([* * *]’s Experience Volume); see also AR 4320-22 ([* * *]’s Final Evaluation 

Report) (summarizing the contracts submitted by [* * *]).21 For [* * *]’s first contract, a 

contract for the production C-5 Isochronal Maintenance Stands,

22 [* * *] provided a brief

description of the end product and a brief reference to the welding requirements. See AR 

4242-43 ([* * *]’s Experience Volume). For [* * *]’s second and third contracts, 

contracts for the production of 2,000 gallon and 4,000 gallon fuel tanks, [* * *] provided 

a brief description of the fuel tanks to be produced under each contract and noted that, for 

both contracts, “[t]he tanks meet ISO requirements for shipping containers.” See id. at 

4244, 4246. For [* * *]’s fourth contract, a contract for the production of Multi-Class 

DMD Complexes,23 [* * *] provided a half-page description of the end product and 

[* * *]’s responsibilities under the contract and also noted that “certified welders were 

used to perform the . . . stainless steel welding.” See id. at 4245. 

20 Expeditionary Tricon Systems consist of shipping containers that house a shower, 

latrine, laundry and a kitchen. Id. at 3486. 

21 The court describes only the four contracts that the SSEB considered in its evaluation 

of [* * *]’s experience. See AR 4320-22 ([* * *]’s Final Evaluation Report). The fifth 

“contract” that [* * *] identified actually consisted of several contracts, see AR 4247 ([* * *]’s 

Experience Volume) (listing eight contract numbers), and the SSEB refused to give [* * *] credit 

for this experience “because the multiple contracts cited result[ed] in more than five contracts 

being identified in the proposal, exceeding the number allowed per Section L.5.1 of the [RFP],” 

AR 4322 ([* * *]’s Final Evaluation Report). 

22 “C-5 Isochronal Maintenance Stands supply personnel access to the wings, fuselage, 

and engines of the C-5 aircraft.” AR 4242 ([* * *]’s Experience Volume). 

23 Multi-Class DMD Complexes “are used in support of the [United States] Navy nuclear 

submarine overhaul program.” Id. at 4245 (capitalization omitted).

 
The Experience Volume submitted by [* * *] consisted of approximately 

seventeen pages and is considerably less detailed than those of the other offerors. See

AR 3698-3714 ([* * *]’s Experience Volume); see also AR 4339-40 ([* * *]’s Final 

Evaluation Report) (summarizing the contracts submitted by [* * *]).24 The first contract 

identified by [* * *] was a contract for the production of trailers and, as support, [* * *]

included one sentence that described the welding requirements under the contract and a 

copy of an ISO certificate awarded to [* * *] for the “[d]esign and manufacture of 

medium and heavy duty trailers.” See AR 3702-04 ([* * *]’s Experience Volume). The 

second contract identified by [* * *] was a contract awarded to a proposed subcontractor 

for the production of diesel fuel trucks, and, as support, [* * *] included a few sentences 

that described the quality of the subcontractor’s performance under the contract. See id.

at 3709-10. The third contract [* * *] identified was a contract awarded to a proposed 

subcontractor for the production of technical manuals; as support for this contract, [* * *]

included approximately three pages of information about the subcontractor’s experience 

developing technical manuals. See id. at 3711-14. 

2. The Agency’s Evaluation of the Experience of Entwistle, [* * *], [* * *]

and [* * *]

A summary of the SSEB’s assessment of the risk associated with the prior 

experience of Entwistle, [* * *], [* * *], and [* * *] is below: 

Offeror Overall 

Experience

Comparable 

Items

Technical 

Manuals Delivery Low Temp Requirement Welding

Entwistle Low Very low Moderate Moderate Low Moderate

24 The court describes only the three contracts that the SSEB considered in its evaluation 

of [* * *]’s experience. See AR 4341 ([* * *]’s Final Evaluation Report). The two “contracts” 

that the SSEB refused to consider, see id., included a contract awarded to proposed subcontractor 

Brenner Tank, LLC (Brenner Tank) for the production of stainless steel water tanks (Brenner 

Tank contract) and purchase orders awarded to Brenner Tank for the production of stainless steel 

water trailers (Brenner Tank purchase orders), see AR 3705-07 ([* * *]’s Experience Volume). 

The SSEB did not credit [* * *] with experience under the Brenner Tank contract “because the 

resultant contract number under which this asserted effort was performed is unknown,” AR 4341 

([* * *]’s Final Evaluation Report), and therefore could not be verified, id. at 4346; see AR 1903 

(SSDD) (stating that the Brenner Tank contract “was not taken into consideration based on the 

inability of the evaluators to verify that the solicitation resulted in a contract being awarded to” 

the prime contractor identified by [* * *]). The SSEB also refused to credit [* * *] with 

experience under the Brenner Tank purchase orders “because the multiple purchase orders 

referenced would [have] result[ed] in more than five contracts being identified in the proposal, 

exceeding the number allowed per Section L.5.1 of the [RFP].” AR 4341 ([* * *]’s Final 

Evaluation Report); see AR 1903 (SSDD) (stating that, because [* * *] did not provide any 

supporting information to verify the Brenner Tank purchase orders, “it was impossible for the 

evaluators . . . to identify the specific experience related to any one of the cited purchase orders 

so that they could be evaluated without violating the five-contract limit”).

 
[* * *] Moderate Moderate Low risk Moderate High High

[* * *] High Moderate High High High High

[* * *] High High High Moderate High High

See AR 1763-64 (Entwistle’s Final Evaluation Report); AR 4307 ([* * *]’s Final 

Evaluation Report); AR 4326-27 ([* * *]’s Final Evaluation Report); AR 4345 ([* * *]’s

Final Evaluation Report); cf. supra note 8 (explaining the Agency’s adjectival ratings of 

the Experience factor). As noted above in Part I.E, the SSA adopted the ratings assigned 

by the SSEB. See supra Part I.E.

In its evaluation of Entwistle’s Experience Volume, the SSEB identified one 

strength and three weaknesses associated with Entwistle’s past experience. AR 1764 

(Entwistle’s Final Evaluation Report). The SSEB considered as a strength Entwistle’s 

“experience supplying systems that are collectively very comparable to the Hippo, 

involving essentially the same scope and magnitude of effort and level of complexity as 

required by this solicitation.” Id.; see also AR 1883 (SSDD) (agreeing with the SSEB’s 

“very low risk assessment” for Entwistle “because experience with the major elements of 

a HIPPO system is a larger risk mitigator than the experience with integration of the 

elements into a complete system” and stating that “[t]he complexity of the HIPPO lies in 

the major elements”).25 As a weakness, the SSEB found that although [* * *] had 

25 Plaintiff argues that the Agency’s determination that Entwistle has experience 

manufacturing products that “collectively involve the major elements of sanitary liquid handling 

and storage systems . . . is arbitrary and capricious.” Pl.’s Mot. 13 (internal quotation marks 

omitted). As support, plaintiff claims that “Entwistle had no welding experience, offered no 

experience making the ISO frame and relied on” its proposed subcontractor, [* * *], “with 1 

month of production quantities of 30 items to establish its delivery experience,” while “Entwistle 

itself had no comparable delivery experience.” Id. at 13-14. 

As an initial matter, the court agrees with the United States (the government or 

defendant) that plaintiff’s arguments are “inaccurate and unsupported.” See Def.’s Mot. 31. 

First, the record does not support plaintiff’s contention that “Entwistle had no welding 

experience.” See infra note 26 (discussing Entwistle’s welding experience); cf. Pl.’s Mot. 13. 

Second, with respect to the [* * *] contract to which plaintiff refers, the SSEB determined that 

[* * *] had six months of experience delivering twenty to thirty products per month, see AR 

1761 (Entwistle’s Final Evaluation Report), not one month of delivery experience as plaintiff 

contends, cf. Pl.’s Mot. 14. Moreover, as defendant correctly notes, even if [* * *] did have only 

one month of experience delivering thirty items, plaintiff “has failed to explain why it is per se

unreasonable for the agency to consider that experience relevant.” See Def.’s Mot. 31; cf. AR 72 

(RFP) (indicating that the offeror selected for award would be expected to manufacture and 

deliver up to an estimated thirty-five Hippos a month); AR 1883 (SSDD) (same). Finally, the 

Solicitation did not require offerors to submit information that suggested they had experience 

manufacturing ISO frames, see AR 264-65 (RFP) (listing the information that offerors were to 

submit in support of their recent and relevant experience), so the fact that the Agency did not 

penalize Entwistle for not providing evidence of this experience is not unreasonable. 

 
experience delivering “sanitary liquid handling and storage system[s] at a rate very close 

to that required by the solicitation, the end item produced under the contract is . . . only 

somewhat comparable in scope to the Hippo.” AR 1764 (Entwistle’s Final Evaluation 

Report). The SSEB also identified as weaknesses Entwistle’s lack of experience in 

developing technical manuals of the type required by the Solicitation and in welding 

stainless steel in accordance with the standards required by the Solicitation. Id.

The SSEB identified zero strengths and four weaknesses associated with [* * *]’s 

past experience. AR 4308 ([* * *]’s Final Evaluation Report). The SSEB found that

[* * *]’s “[c]ited experience references comparable items that involve only some of the 

scope and magnitude of effort and complexities required by this solicitation.” Id. The 

SSEB also found that [* * *] failed to demonstrate experience delivering products “with a 

complexity comparable to the Hippo at the rate required by the solicitation.” Id. The 

SSEB further found that [* * *] lacked experience in manufacturing products that could 

meet the low temperature requirement and in welding stainless steel in accordance with 

the standards required by the Solicitation. Id.

The SSEB identified zero strengths and several weaknesses associated with the 

past experience of both [* * *] and [* * *]. See AR 4327 ([* * *]’s Final Evaluation 

Report); AR 4346 ([* * *]’s Final Evaluation Report). The SSEB assigned [* * *] and

[* * *] five weaknesses each for failing to provide “verifiable experience” with respect to 

any of the Solicitation’s five SOW requirements. See AR 4327 ([* * *]’s Final 

Moreover, the court finds that the Agency acted well within its discretion when it 

determined that Entwistle “has experience supplying systems that are collectively very 

comparable to the Hippo,” see AR 1764 (Entwistle’s Final Evaluation Report), and that plaintiff 

has failed to meet the heavy burden of proof necessary to show that this determination lacked a 

rational basis, cf. L-3 Commc’ns EOTech, Inc. v. United States, 83 Fed. Cl. 643, 650 (2008) 

(“[T]he protestor’s burden [of proof] is especially heavy in negotiated, best value 

procurements.”), appeal dismissed by stipulation, 356 F. App’x 390 (Fed. Cir. 2009); Banknote 

Corp. of Am. v. United States, 56 Fed. Cl. 377, 384 (2003) (determining that “naked claims” of 

disagreement with evaluations, “no matter how vigorous, fall far short of meeting the heavy 

burden of demonstrating that the findings in question were the product of an irrational process 

and hence were arbitrary and capricious”), aff’d, 365 F.3d 1345 (Fed. Cir. 2004). The court 

defers to the Agency’s technical determination that--despite the fact that Entwistle lacked 

“experience with integration of the [Hippo] elements into a complete system”--one of the 

strengths of Entwistle’s proposal was its collective “experience with the major elements of a 

HIPPO system.” See AR 1883 (SSDD); cf. One Largo Metro, LLC v. United States, 109 Fed. 

Cl. 39, 74 (2013) (“[T]he evaluation of proposals for their technical excellence or quality is a 

process that often requires the special expertise of procurement officials, and thus reviewing 

courts give the greatest deference possible to these determinations.” (internal quotation marks 

omitted)). Absent a finding that “the agency’s determinations were irrational or unreasonable,” 

the court will “not substitute its judgment . . . for that of the agency.” Baird Corp. v. United 

States, 1 Cl. Ct. 662, 664 (1983).

 
Evaluation Report); AR 4346 ([* * *]’s Final Evaluation Report). The SSEB assigned an 

additional weakness to [* * *] for failing to provide “actual contract SOWs . . . to 

describe previous experience” and failing to discuss the similarities between its five most 

recent and relevant contracts and the “current solicitation.” AR 4327 ([* * *]’s Final 

Evaluation Report). 

3. The Agency Treated Offerors Equally and Rationally in Its Evaluation of 

Experience

Plaintiff argues that the Agency violated FAR 1.602-2 and “[a]bused its discretion 

by treating the offerors unequally” in its evaluation of experience. See Pl.’s Resp. 8; Pl.’s 

Mot. 6 (arguing that “[t]he Agency’s evaluation of the offerors’ proposals violated FAR 

1.602-1”), 15 (similar); cf. FAR 1.602-2 (providing that contracting officers must 

“[e]nsure that contractors receive impartial, fair, and equitable treatment”). According to 

plaintiff, “the Agency was unable to verify whether Entwistle’s claimed experience was 

actually relevant to the Hippo RFP,” given the limited amount of information provided by 

Entwistle, Pl.’s Mot. 8, and that, unlike its assessment of other offerors, the Agency did 

not consider Entwistle’s failure to verify its experience a weakness, id. at 9. Plaintiff 

contends that the Agency did not extend the same type of treatment to the other offerors 

“who claimed experience in a manner similar to Entwistle,” id. at 7; see id. at 14 

(claiming that other offerors were “assigned negative risk ratings or a weakness when 

their proposals lacked verifiable information”), and that, “[i]nstead, the Agency 

consistently disregarded the RFP’s requirements when it evaluated Entwistle’s proposal, 

which resulted in Entwistle receiving artificially inflated ratings and ultimately being 

included in the best value trade-off,” id. at 9. 

Defendant responds that “the agency had applied precisely the same standard--

whether each offeror had supplied sufficient information to permit verification of claimed 

experience--to each proposal, and reached different ratings for different offerors only as a 

result of significant differences between proposals.” Def.’s Reply 2 (internal quotation 

marks and alteration omitted); see Def.’s Mot. 18 (arguing that any “differences in 

evaluations resulted from differences among the proposals”). According to defendant, 

“because ascertaining the nature of an offeror’s experience--rather than policing strict 

compliance with every single instruction in the solicitation--was the agency’s goal, the 

agency did not automatically penalize an offeror simply for failing to submit a [SOW].” 

Def.’s Mot. 23. Defendant claims that the Agency “gave offerors credit for relevant 

experience that was described with reasonable specificity” regardless of whether it came 

“in the form of a [SOW] excerpt.” Id.; see id. at 21 (stating that “the agency did not 

penalize any offeror for failing to submit a [SOW] from a given contract so long as the 

offeror submitted sufficient other information to make clear the nature of the work 

involved”); accord Intervenor’s Mot. 20 (stating that “the Agency did not eliminate any 

of the [Experience Volumes] from consideration for award because it failed to include 
copies of [SOWs], but, rather, the agency evaluated each one in light of and utilizing the 

information provided”). 

“[I]t is beyond peradventure that a contracting agency must treat all offerors 

equally, evaluating proposals evenhandedly against common requirements and evaluation 

criteria.” Banknote Corp. of Am. v. United States, 56 Fed. Cl. 377, 383 (2003), aff’d,

365 F.3d 1345 (Fed. Cir. 2004); cf. Chenega, 96 Fed. Cl. at 585 (“This court has held that 

unequal treatment claims are the quintessential example of conduct which lacks a rational 

basis.” (internal quotation marks and emphasis omitted)). “Equal treatment, however, 

does not require that all proposals be treated the same.” Chenega, 96 Fed. Cl. at 

585 (citing FAR 1.102-2(c)(3) (“All contractors and prospective contractors shall be 

treated fairly and impartially but need not be treated the same.”)). 

Plaintiff’s argument that the Agency treated the offerors unequally, see Pl.’s Mot. 

12, simply is not supported by the administrative record.26 First, the administrative 

26 Moreover, the court finds that many of plaintiff’s claims in support of this argument, 

see Pl.’s Mot. 10-14; Pl.’s Resp. to Def.’s Mot. for J. upon the Admin. R. (Pl.’s Resp.), Dkt. No. 

31, at 5-6, are misleading and based on incomplete portions of the administrative record. To 

illustrate, the court addresses plaintiff’s arguments involving the Agency’s evaluation of the 

welding requirement. 

Plaintiff alleges that the Agency assigned [* * *] a high risk rating for welding because 

“[[* * *]’s] experience did not explicitly address welding to [American Welding Society (AWS) 

Standard] D18.3./18.3M,” and that “the Agency assessed Entwistle as only ‘Moderate Risk,’ 

even though ‘none of . . . [Entwistle’s] referenced experience explicitly addressed welding 

stainless steel in accordance with AWS D18.3/18.3M.’” Pl.’s Mot. 10 (second alteration in 

original) (emphasis omitted) (quoting AR 1763 (Entwistle’s Final Evaluation Report)). Plaintiff 

fails to mention, however, that the full extent of [* * *]’s references to welding consisted of 

unsupported assertions that three of its contracts required “stainless steel welding.” See AR 

3481-82, 3486 ([* * *]’s Experience Volume); see also AR 1891 (SSDD) (stating that [* * *]

received a high risk rating “because it simply mentioned stainless steel welding” without 

providing any “other scope of work documentation . . . to substantiate the [* * *] proposed 

experience”). 

By contrast, Entwistle included actual excerpts of the Scope of Work (SOW)/purchase 

description from its contract for the production of FORCE Systems (FORCE contract), which 

specifically addressed the welding requirements of the FORCE contract. See AR 1710 

(Entwistle’s Revised Experience Volume) (“Piping shall be welded IAW ASME B31.3. All 

welding procedures and welder[s] employed shall be certified IAW ASME Boiler and Pressure 

Vessel Code, Section IX. Steel shall be welded IAW AWS D1.1.”). Entwistle also included 

purchase description excerpts from its contract for the production of Tank Cleaning Vacuum 

Systems (Vacuum contract), which implicated the welding codes associated with the 

manufacturing standards under the Vacuum contract. See id. at 1716 (stating that the Tank 

Cleaning Vacuum Systems “are manufactured in accordance [with] A[SM]E-BPVC Section 

 
record does not support plaintiff’s assertion that [* * *], [* * *] and [* * *] all “claimed 

VIII, Div.”). Given this information, the SSEB considered Entwistle’s welding experience under 

both the FORCE contract and the Vacuum contract “somewhat relevant” and rated Entwistle as 

“moderate risk.” See AR 1763 (Entwistle’s Final Evaluation Report) (capitalization omitted). 

Specifically, the SSEB found the FORCE contract “somewhat relevant because it involves the 

welding of piping to ASME B31.3, . . . welders and welding procedures that are certified to 

ASME BPVC Section IX[,] [and] . . . requires steel [to] be welded to AWS D1.1.” Id. The 

SSEB also found the Vacuum contract “somewhat relevant because it requires tanks [to] be 

manufactured in accordance with the ASME BPVC,” and, according to the SSEB, “[w]elding to 

these codes equates to meeting some of the magnitude of effort and complexities required by this 

solicitation.” Id. Given the foregoing, the Agency acted with a rational basis when it rated the 

welding experience of Entwistle as moderate risk and the welding experience of [* * *] as high 

risk. Cf. E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (stating that “such 

matters as technical ratings” involve “the minutiae of the procurement process . . . that a court 

will not second guess”). In the light of the foregoing, the court finds that the Agency did not 

hold Entwistle to a different standard than [* * *]. 

Plaintiff also claims that the Agency considered relevant Entwistle’s experience welding 

to the AWS D1.1 standard but that the Agency ignored similar welding experience of [* * *] and 

[* * *]. See Pl.’s Mot. 12 (“[U]nless you were Entwistle, the Agency was not interested in your 

ability to weld to AWS D.1.1.”). As support, plaintiff claims that the Agency considered 

Entwistle’s FORCE contract “to be somewhat relevant because it required steel to be welded to 

AWS D1.1,” id. at 11, which “is contrary to what the Agency said about [* * *]’s experience 

welding to AWS D1.1 and D1.2,” id. at 12. Plaintiff misconstrues the facts. 

As noted above, the Agency found the FORCE contract somewhat relevant because, in 

addition to requiring steel to be welded to AWS D1.1, it also found that the FORCE contract 

“involve[d] the welding of piping to ASME B31.3, and welders and welding procedures that are 

certified to ASME BPVC Section IX.” AR 1763 (Entwistle’s Final Evaluation Report). 

Moreover, unlike Entwistle’s provision of excerpts from the SOW or purchase description of the 

FORCE contract, see AR 1710 (Entwistle’s Revised Experience Volume), both [* * *] and 

[* * *] simply asserted, without support, that one of their contracts required welding to the AWS 

D1.1 standard, see AR 4243 ([* * *]’s Experience Volume) (stating that [* * *]’s contract for C5 Isochronal Maintenance Stands required “[w]elding per AWS D1.1”); AR 3702 ([* * *]’s

Experience Volume) (stating that [* * *]’s contract for the production of trailers “was welded 

I.A.W. AWS.D1.1”). The Agency did not find the welding experience of either [* * *] or [* * *]

relevant because neither provided information that verified its experience. See AR 4326 

([* * *]’s Final Evaluation Report); AR 4344 ([* * *]’s Final Evaluation Report); AR 1884, 1905 

(SSDD) (stating that [* * *]’s and [* * *]’s “assertions regarding [welding] experience lacked 

meaningful credibility where [they] failed to include [SOW] or paraphrased/quoted contract 

provision extracts in [their] proposal[s]”). Given the foregoing, the court finds that the Agency 

acted reasonably and well within its discretion when it gave Entwistle a welding experience 

rating of moderate risk, while rating the welding experiences of both [* * *] and [* * *] as high 

risk. Cf. E.W. Bliss Co., 77 F.3d at 449. Accordingly, the court finds that the Agency did not 

hold Entwistle to a different standard than [* * *] or [* * *]. 

 
experience in a manner similar to Entwistle.” Cf. Pl.’s Mot. 7. In fact, these “offerors 

supplied the agency with widely varying amounts of information to document their 

experience.” See Def.’s Mot. 25; supra Part III.B.1 (summarizing the information 

provided by each offeror). 

Moreover, plaintiff has failed to establish that the Agency addressed the varying 

amounts information provided by the offerors in an unfair or irrational manner. When an 

offeror provided verifiable experience, regardless of whether that included excerpts of 

SOWs or a discussion of similarities between these relevant SOWs and the Solicitation’s 

SOW, the SSEB credited the offeror with that experience and did so in a fair and rational

manner. See, e.g., AR 1760 (Entwistle’s Final Evaluation Report) (crediting Entwistle 

for its inclusion of “purchase description requirements” for the Vacuum contract under 

the comparable items consideration); AR 4305 ([* * *]’s Final Evaluation Report)

(crediting [* * *] for “[a] number of paraphrased system requirements” that [* * *]

provided in support of its comparable item experience). Similarly, when an offeror failed 

to provide verifiable experience, the SSEB downgraded the offeror’s ratings fairly and 

rationally. See, e.g., AR 1760-61 (Entwistle’s Final Evaluation Report) (downgrading 

Entwistle’s technical manual rating because of the limited information Entwistle provided 

regarding the technical manuals supplied under the FORCE contract); AR 4324 ([* * *]’s 

Final Evaluation Report) (assigning [* * *] a high risk technical manual rating because of 

[* * *]’s failure to provide supporting documentation); see also supra notes 18 (noting the 

Agency’s refusal to credit Entwistle with experience associated with a military 

specification because the application of the specification to the Solicitation was 

considered questionable), 24 (noting the Agency’s refusal to credit [* * *] with 

experience associated with a contract because the award of the contract could not be 

verified). 

Plaintiff has failed to meet the heavy burden required to show that the Agency 

violated FAR 1.602-2 and treated Entwistle, [* * *], [* * *] and [* * *] unequally in its 

evaluation of experience. Cf. FAR 1.602-2 (providing that contracting officers must 

“[e]nsure that contractors receive impartial, fair, and equitable treatment”); L-3 

Commc’ns I, 83 Fed. Cl. at 650 (“[T]he protestor’s burden [of proof] is especially heavy 

in negotiated, best value procurements.”). To the extent that the Agency “assessed 

[Entwistle] more favorable risk ratings than other offerors,” see Pl.’s Resp. 8, the court 

finds that the Agency’s evaluation of the offerors’ experience was rational and reasonable 

and that the Agency “provided a coherent and reasonable explanation of its exercise of 

discretion,” cf. Impresa, 238 F.3d at 1332-33 (internal quotation marks omitted). As 

intervenor points out, “[a]ssessing the significance of the differences in each offeror’s 

experience, as reflected in its proposal, is the heart of the proposal evaluation process 

entrusted to the Agency.” See Intervenor’s Mot. 22; see also id. at 23 (“The fact that 

Plaintiff disagrees with the judgment reached by the SSEB in this matter . . . falls far 

short of meeting Plaintiff’s heavy burden to set aside the Agency’s technical evaluation 

in this negotiated, best value procurement.”); cf. E.W. Bliss Co., 77 F.3d at 449 (stating 
that “such matters as technical ratings” involve “the minutiae of the procurement 

process . . . that a court will not second guess”); One Largo, 109 Fed. Cl. at 74 (stating 

that “the evaluation of proposals for their technical excellence or quality is a process that 

often requires the special expertise of procurement officials, and thus reviewing courts 

give the greatest deference possible to these determinations” (alteration and internal 

quotation marks omitted)).

27 

27 In its Response, plaintiff appears to argue, in the alternative, that the Solicitation 

required offerors to provide copies of SOWs and that the “Agency’s waiver” of this requirement 

for “some offerors,” that is, Entwistle, [* * *], [* * *] and [* * *]--but not for Mil-Mar--“was 

arbitrary, capricious and resulted in disparate treatment.” Pl.’s Resp. 1; see id. at 1-2 (arguing 

that a “plain reading of the RFP” suggests that a failure to submit copies of SOWs equates to “a 

failure to submit sufficient information about prior experience” (internal quotation marks 

omitted)); cf. Def.’s Reply in Supp. of Its Cross-Mot. for J. upon the Admin. R. (Def.’s Reply), 

Dkt. No. 34, at 2 (claiming that, after defendant “made [the] showing” that the Agency 

evenhandedly “assess[ed] the sufficiency of information provided about offerors’ experience,” 

plaintiff “shifted its argument[]” and asserted that this approach to evaluating experience was 

prohibited under the Solicitation). According to plaintiff, “the Agency’s use of an evaluation 

methodology different from what was stated in the RFP benefited Entwistle and prejudiced MilMar,” Pl.’s Resp. 7, because Mil-Mar, unlike “most of the competition,” submitted a “100% 

compliant proposal,” id. at 6-7.

As plaintiff points out, see Pl.’s Mot. 6, most of the offerors failed to include, for each of 

the recent and relevant contracts identified, copies of actual SOW provisions, see Part III.B.1 

(discussing offerors’ prior contract submissions). Under Section L.5.4 of the Solicitation, the 

Agency could have found these proposals “unacceptable” and eliminated them “from 

consideration for award.” See AR 265 (RFP). However, rather than “eliminat[ing] most of the 

competition,” plaintiff argues that the Agency “tried to evaluate offerors based on some ad hoc 

and unsubstantiated methodology that was not in accord with the RFP.” Pl.’s Resp. 7; see id. at 

2 (arguing that the Solicitation does not permit the Agency to rely on “this Governmentproffered alternative method of evaluating claimed experience,” that is, submission of “sufficient 

other information about . . . prior experience” (internal quotation marks omitted)). 

Defendant counters, and the court agrees, that “the agency’s assessment of experience 

was entirely consistent with the terms of the solicitation.” Def.’s Reply 4; see Tr. 60:24-61:5 

(Barbara E. Thomas (Ms. Thomas)) (“Nothing in the solicitation required that the agency could 

only look at [SOWs]. Nothing said that the agency can’t look at other types of information about 

contracts that are submitted, and nothing in the solicitation said the agency must refuse to give 

credit for experience on a contract for which an offeror didn’t submit a [SOW].”). Section L.5.4 

of the Solicitation provided that “[f]ailure to provide the information requested under [Section] 

L.5.4”--which included copies of actual SOW provisions--“so that the Government can verify 

claimed experience may result in a determination that” the offeror’s proposal was unacceptable 

and, therefore, eliminated “from consideration for award.” AR 265 (RFP) (emphasis added); see 

also id. at 276 (providing that the Agency “may” reject a proposal if the proposal “provides some 

data but omits significant material data and information required by Section L”). Defendant 

argues that, “by providing that a proposal ‘may’ be found unacceptable if it fails to include the 

 
Finally, defendant argues that even if plaintiff could establish that the Agency 

treated Entwistle more favorably than [* * *], [* * *] and [* * *], plaintiff could not 

establish prejudice because none of plaintiff’s unequal treatment claims actually involve 

Mil-Mar. Def.’s Mot. 29; see id. at 30 (“Mil-Mar has failed to demonstrate that the 

absence of the supposedly disparate treatment it describes would have had any effect on 

its own chances of winning the Hippo contract.”); cf. Data Gen. Corp., 78 F.3d at 1562

(stating that, in order to prevail in a bid protest, the plaintiff must demonstrate both that 

an error occurred and that the error was prejudicial). Defendant contends that plaintiff’s 

“arguments therefore differ drastically from those of protestors who have successfully 

presented disparate treatment arguments” because, “[i]n those cases, the protestor 

typically argued that its own proposal had been subject to disparate treatment.” Def.’s 

Mot. 29-30 (citing BayFirst Solutions, LLC v. United States, 102 Fed. Cl. 677, 690-91 

(2012) and Hunt Bldg. Co. v. United States, 61 Fed. Cl. 243, 273-74 (2004), modified, 63 

Fed. Cl. 141 (2004)). 

Plaintiff contends that if the Agency had treated all offerors equally, Entwistle 

would have received “higher risk ratings for several of the considerations, which would 

have materially altered the Agency’s best value tradeoff,” and that “Mil-Mar, with the 

highest rating and a competitive price, would have had a substantial chance of receiving 

the award.” Pl.’s Mot. 15; see also Pl.’s Resp. 7 (“But for Entwistle’s artificially inflated 

ratings, the Government’s trade off would have been between Mil-Mar and other 

similarly priced offerors and there is a substantial chance Mil-Mar would have been 

awarded the contract.”). Defendant counters that plaintiff fails to consider that, but for 

information requested, the solicitation contemplates that . . . a proposal may be found acceptable 

even though it fails to include some requested information.” Def.’s Reply 3. 

Defendant’s argument is further supported by Section M.3.5 of the Solicitation, which 

provides that the successful offeror’s proposal must “meet[] all the material requirements of this 

solicitation.” AR 277 (RFP) (emphasis added). “As that language indicates, the agency 

expressly anticipated, and the solicitation explained, that even the ultimately successful offeror 

might not meet every requirement of the solicitation.” Def.’s Reply 3; see Tr. 62:17-20 (Ms. 

Thomas) (“[The solicitation] expressly contemplated that even if an offeror didn’t submit all the 

information that the solicitation said was ‘required’, that they still might win the award.”). 

Accordingly, the court does not consider the Agency’s decision to rely on other information to 

verify claimed experience as “a failure to follow the terms of its own Solicitation,” cf. Hunt 

Bldg. Co. v. United States, 61 Fed. Cl. 243, 273 (2004) (“The agency’s failure to follow the 

terms of its own Solicitation and selection of an offeror based upon different requirements than 

those imposed upon the only other offeror are quintessential examples of conduct which lacks a 

rational basis.”), modified, 63 Fed. Cl. 141 (2004); infra note 33 (noting that although the 

Solicitation appears to require certain information in one section, it affords the Agency flexibility 

regarding that information in another). 

 
the alleged disparate treatment, the Agency would have assigned the other offerors lower 

risk ratings. See Def.’s Mot. 30. 

The court finds that plaintiff’s attenuated argument does not support a showing of 

“substantial prejudice.” Cf. Brooks Range, 101 Fed. Cl. at 707 (“In the context of a postaward bid protest, the plaintiff must demonstrate substantial prejudice by showing that 

there was a substantial chance it would have been awarded the contract but for the 

agency’s error.” (internal quotation marks omitted)). Plaintiff cites to no authority, and 

the court is aware of none, that supports plaintiff’s argument that a party not subject to 

the alleged unequal treatment claims can demonstrate prejudice. See Tr. 46:19-24 

(colloquy between the court and Barbara Ann Duncombe (Ms. Duncombe)) (the court: 

“[D]o you all have any authority . . . in support of a finding of unequal treatment when 

the Plaintiff was not the subject [of the unequal treatment claims]?” Ms. Duncombe: 

“No, Your Honor.”). Although plaintiff may be “looking to make some new case[]law,” 

see Tr. 46:25 (Ms. Duncombe), the court is not similarly inclined. 

C. The Agency Did Not Conduct Improper, Unequal Discussions 

Plaintiff argues that the government engaged in exclusive discussions with 

Entwistle that allowed Entwistle to revise its proposal to make it compliant with the terms 

of the Solicitation. See Compl. ¶ 117; Pl.’s Resp. 9. Specifically, plaintiff contends that 

two of the government’s requests for clarification and Entwistle’s responses (the two 

exchanges) constituted unequal discussions in violation of FAR 15.306. See Pl.’s Mot. 

17-20; cf. supra Part I.C (discussing the content of the two exchanges). Plaintiff further 

contends that “[h]ad the Agency not entered into unequal discussions with Entwistle, it 

would have concluded that it could not adequately evaluate Entwistle’s significantly 

lower price for realism and would have rejected its offer.” Compl. ¶ 117; see Pl.’s Resp.

9 (claiming that the alleged discussions “help[ed] make [Entwistle’s] proposal compliant 

with the RFP’s requirements”). Defendant counters that “[t]here is no reasonable basis 

for concluding that these two exchanges constituted discussions,” Def.’s Mot. 33, and 

that, “[e]ven if the agency’s exchanges with Entwistle had constituted discussions, . . . 

Mil-Mar has not demonstrated that it was prejudiced,” id. at 34. For the following 

reasons, the court finds that the two exchanges did not constitute discussions and that, 

therefore, the Agency did not enter into unequal discussions with Entwistle. The court 

further finds that, even if the two exchanges had constituted discussions, plaintiff has 

failed to establish prejudice. 

“In negotiated procurements, the procuring agency may engage in a wide range of 

exchanges with offerors in order to facilitate the evaluation process and to permit the 

agency to make an informed award decision.” Linc Gov’t Servs., LLC v. United States, 

96 Fed. Cl. 672, 714 (2010) (citing FAR 15.306 and ITAC, 316 F.3d at 1320-23). 

“Different exchanges are permitted under different circumstances and at various stages of 

the procurement process.” Id. For example, “negotiations” are exchanges “that are 
undertaken with the intent of allowing the offeror to revise its proposal,” and 

“discussions” are negotiations that occur “after establishment of the competitive range” 

in competitive acquisitions. FAR 15.306(d). “The primary objective of discussions is to 

maximize the Government’s ability to obtain best value, based on the requirement and the 

evaluation factors set forth in the solicitation.” FAR 15.306(d)(2); see ITAC, 316 F.3d at 

1322 (“[W]hen discussions are opened, bidders have the opportunity to revise their 

proposals, in order ‘to maximize the Government’s ability to obtain best value.’” (quoting 

FAR 15.306(d)(2))). When an agency decides to hold discussions, they “must be 

conducted . . . with each offeror within the competitive range.” FAR 15.306(d)(1); cf.

FAR 15.306(e) (providing that the government “shall not engage in conduct that . . . 

[f]avors one offeror over another”). 

Where, as here, see AR 276 (RFP), a solicitation provides “that the Government 

intends to evaluate proposals and make award without discussions,” FAR 15.306(a)(3),

an agency may engage offerors in clarifications, see FAR 15.306(a). FAR 15.306(a) 

defines clarifications as “limited exchanges,” FAR 15.306(a)(1), that are intended to give 

offerors “the opportunity to clarify certain aspects of proposals (e.g., the relevance of an 

offeror’s past performance information and adverse past performance information to 

which the offeror has not previously had an opportunity to respond) or to resolve minor 

or clerical errors,” FAR 15.306(a)(2).

28 Unlike discussions, which must be conducted

equally with all offerors within the competitive range, see FAR 15.306(d)(1), an agency 

has the discretion to engage in clarifications with just one offeror, DynCorp Int’l LLC v. 

United States (DynCorp), 76 Fed. Cl. 528, 540 (2007). 

Section L.6.6 of the Solicitation provided that “the Government reserves the right, 

as a clarification under FAR 15.306(a), to request additional or more detailed price 

breakdown data to support its determination of price reasonableness.” AR 266 (RFP). 

Although it is “[t]he actions of the parties, not the characterization by the agency, [that] 

determine whether discussions have been held,” Allied Tech. Grp., Inc. v. United States

(Allied Tech.), 94 Fed. Cl. 16, 44 (2010), aff’d, 649 F.3d 1320 (Fed. Cir. 2011), the

agency’s characterization of an exchange as a clarification is entitled to deference from 

the court, G4S Tech. CW LLC v. United States (G4S), 109 Fed. Cl. 708, No. 12-705C, 

28 The court notes that, in 1997, “the definition of ‘clarifications’ was significantly 

broadened” by amendment to the Federal Acquisition Regulations (FAR). ITAC, 316 F.3d at 

1321-22 (comparing FAR 15.601 (1991) with FAR 15.306(a)(2) (2002)); see also Linc Gov’t 

Servs., LLC v. United States, 96 Fed. Cl. 672, 715 (2010) (noting that “the 1997 amendments to 

the FAR were intended to broaden significantly the definition of ‘clarifications’”). “The stated 

purpose of the 1997 amendments to section 15 of the regulations was to ‘provide for 

empowerment and flexibility’ and ‘shift from rigid rules to guiding principles.’” ITAC, 316 F.3d 

at 1321 (quoting Federal Acquisition Circular 97-02, 62 Fed. Reg. 51,244, 51,225 (Sept. 30, 

1997)). “Specifically, the new regulations were intended to support more open exchanges 

between the Government and industry.” Id. (alterations and internal quotation marks omitted).

 
2013 WL 935890, at *12 (Fed. Cl. Mar. 12, 2013) (citing ITAC, 316 F.3d at 1323). 

“Thus, this court must give deference to an agency’s view that an [exchange] was a 

clarification, as long as that interpretation was permissible and reasonable.” Dyncorp, 76 

Fed. Cl. at 542 (internal quotation marks omitted); see ITAC, 316 F.3d at 1323 (stating 

that the United States Court of Appeals for the Federal Circuit (Federal Circuit) “recently 

emphasized that the [federal] acquisition regulations entrust the contracting officer with 

especially great discretion, extending even to his application of procurement regulations” 

(alteration and internal quotation marks omitted)). 

The two exchanges that plaintiff challenges took the form of limited e-mail

correspondence between the agency and Entwistle. See supra Part I.C (describing the 

two exchanges). Each of the government’s requests for clarification included the 

following disclaimer: “[N]either this communication nor your submission of requested 

clarification information in response to this communication will constitute discussions as 

described in FAR 15.306(d) . . . . Be advised that this clarification request does not allow 

you to modify your proposal, including your proposed prices, in any way.” AR 1848, 

1853 (two requests for clarification). In the first request, the Agency asked Entwistle to 

“clarify the cost (material and labor) associated with fabricating the ISO frame.” AR 

1773 (Initial PER). Entwistle responded as follows: “The estimated material cost for the 

frame is $[* * *]. The estimated labor for fabricating the frame is [* * *] hours.” Id. In 

the second request, the Agency asked Entwistle to “clarify how [its] proposed labor hours 

are adequate to carry out the steps necessary for production of the First Article Test items 

and production quantities.” Id. Entwistle responded as follows: “The production labor 

hours were estimated for each labor category based on our understanding of the 

solicitation requirements. Based on our experience with design programs, a factor was 

applied to the production hours to arrive at the first article labor hours.” Id. at 1774.

Plaintiff argues that these two exchanges amounted to discussions because the 

Agency “gave Entwistle an opportunity to revise its proposal by asking it to provide 

material information that was required, but omitted, from Entwistle’s proposal, and that 

was critical to the Agency’s ability to evaluate the realism of Entwistle’s price.” 29 Pl.’s 

Mot. 18 (emphasis omitted); see also Tr. 11:21-23 (Ms. Duncombe) (conceding that the 

first exchange “gave Entwistle the opportunity to basically cure a proposal deficiency 

with material information that it had omitted”); Pl.’s Mot. 20 (arguing that, in the second 

exchange, Entwistle made “its proposal more appealing to the Agency by submitting 

29 Plaintiff also contends that, by allowing Entwistle to provide information regarding the 

cost and labor associated with the ISO frame, “the Agency gave Entwistle the opportunity to cure 

a material omission in violation of FAR [] 15.306(b)(2).” Pl.’s Mot. 19. However, as defendant 

correctly points out, see Def.’s Mot. 32, FAR 15.306(b) concerns communications, a type of 

exchange not at issue here, cf. FAR 15.306(b) (2012) (defining “communications” as 

“exchanges, between the Government and offerors, after receipt of proposals, leading to the 

establishment of the competitive range”).

 
information that the Agency thought was necessary for its analysis of Entwistle’s 

proposed price”). Plaintiff also contends that neither exchange is governed by Section 

L.6.6 of the Solicitation because “the Agency requested Entwistle [to] provide key 

pricing information not present in its proposal--not additional information or more 

details.” See Compl. ¶ 78; see Tr. 13:11-14 (Ms. Duncombe) (conceding that “any time 

the government issues a question to an offeror, . . . it’s going to be asking for additional 

information”); cf. AR 266 (RFP) (providing in Section L.6.6 that “the Government 

reserves the right, as a clarification under FAR 15.306(a), to request additional or more 

detailed price breakdown data to support its determination of price reasonableness”). 

Defendant responds that plaintiff’s argument “is predicated upon the incorrect assertion 

that the information provided by Entwistle to the agency during these two exchanges was

required by the solicitation.” Def.’s Reply 6; cf. Allied Tech., 94 Fed. Cl. at 45 

(determining that an exchange was a clarification partly because “nothing in the 

Solicitation expressly required” the information requested by the Agency). 

The court finds that the information provided by Entwistle in the first exchange--

the estimated material cost and labor hours for fabricating the ISO frame--was required 

by the Solicitation, but that the information provided by Entwistle in the second 

exchange--an explanation of how its proposed labor hours were estimated--was not. 

With respect to the first exchange, Section L.6 of the Solicitation required offerors to 

identify all parts with an estimated cost of $500 or more in their Bill of Material and also 

to provide their proposed direct labor hours. AR 265-66 (RFP) (stating that offerors 

“shall” provide this information in Attachment 16); see supra Part I.A.1 (discussing 

Attachment 16). The record suggests that Entwistle failed to include the cost of the ISO 

frame in its proposal despite this requirement.

30 See AR 1656-60 (Entwistle’s 

Attachment 16) (listing no identifiable costs associated with the frame); AR 1785 

(Entwistle PER) (observing that Entwistle “did not provide all of the requested 

information in [the Bill of Material in] Attachment []16”). The record is less clear as to 

whether Entwistle included in Attachment 16 the [* * *] labor hours it estimated it would 

take to manufacture an ISO frame. In response to the third request for clarification 

regarding direct labor hours, which plaintiff does not dispute, see Pl.’s Mot. 18-20 

(disputing only the second and fourth requests for clarification), Entwistle provided a 

corrected Attachment 16, in which Entwistle estimates [* * *] hours of machining and 

[* * *] hours of welding, see AR 1777 (corrected Attachment 16); AR 1833 (Entwistle 

30 Entwistle estimated that the material cost of the ISO frame was $[* * *], AR 1773 

(Initial PER), and the court considers it unlikely that none of the parts Entwistle intended to use 

to manufacture the frame cost more than $500, cf. AR 266 (RFP) (requiring offerors to “enter all

parts with the extended cost per system of $500 or higher in the [Bill of Material]”); Def.’s Reply 

6 (arguing that “although the solicitation did ask offerors to specify the cost of parts with an 

extended value of more than $500, Mil-Mar has not shown that any of the parts Entwistle 

intended to use to build its frame had an extended value of more than $500” (internal citation 

omitted)). 

 
PER Addendum) (discussing Entwistle’s corrected Attachment 16). The Agency appears 

to have viewed the summation of these two categories of work as constituting the [* * *]

labor hours estimated by Entwistle to manufacture the frame. See AR 1868 (Aug. 29, 

2012 e-mail from Agency engineer Catherine Thomas to contracting officer Yvette 

Thompson (August 29, 2012 e-mail or Aug. 29, 2012 e-mail)) (stating that, based on her 

“review of [an] ISO frame on a completed Hippo from [Agency] inventory,” she could 

not “conclude that an offeror, with [* * *] hours of machining and [* * *] hours of 

welding, [would] not be able to successfully perform and meet the solicitation 

requirements”); infra Part III.D.2 (discussing the August 29, 2012 e-mail). The court 

does not consider this view unreasonable. 

With respect to the second exchange, the court agrees with defendant that nothing 

in the Solicitation required offerors to describe “how offerors estimated their labor 

hours.” See Def.’s Reply 6; cf. AR 265 (requiring offerors only to provide “the total 

proposed direct labor hours and direct labor hours broken down by proposed labor

category”). 

To the extent that Entwistle provided required information that was missing from 

its proposal through the two exchanges, plaintiff asserts that such information was 

material information that was necessary for the Agency to evaluate Entwistle’s proposal. 

See Pl.’s Mot. 18; Tr. 14:7-8 (Ms. Duncombe) (arguing that the Agency sought “material 

information that was missing from [Entwistle’s] proposal”). As to the information 

provided in the first exchange, plaintiff contends that the “ISO frame is one of the two 

most important and expensive parts of the Hippo,” and that without the cost of the frame, 

the Agency “could not evaluate the realism of Entwistle’s price.” Pl.’s Mot. 19. Indeed, 

the SSEB considered the frame a “major item” and reviewed the offerors’ cost of the 

frame in the Initial Price Evaluation Report for the purpose of “test[ing] price realism.” 

AR 1768 (Initial PER). However, the SSEB also found the information that Entwistle 

omitted from its Attachment 16, which included the material costs of the frame over $500

and possibly the number of labor hours necessary to manufacture the frame, “was not 

significantly material to reject [Entwistle’s] proposal.” 31 AR 1785 (Entwistle PER); cf.

31 When questioned by the court about the SSEB’s finding during oral argument, counsel 

for plaintiff suggested that “the agency was blinded by the low price, and they really wanted to 

find a way to make sure [Entwistle’s] really substantially lower price proposal could be awarded 

the contract.” Tr. 17:15-19 (Ms. Duncombe); see id. at 17:19-22 (arguing that the Agency 

attempted to “justify [Entwistle’s] lower price” “throughout this whole evaluation”). 

Defendant argues, and the court agrees, that to the extent plaintiff claims that the Agency 

carried out the evaluation in bad faith--“that the agency somehow engaged in a conspiracy to 

elevate the . . . ratings of Entwistle’s proposal so that it could take advantage of this low price” or 

“that it was engineering [the evaluation] in some way to produce a result that wasn’t justified by 

the actual content[] of the proposal[],” Tr. 65:7-14 (Ms. Thomas)--plaintiff has failed to rebut 

with “well-nigh irrefragable proof” the presumption that “government officials discharge their 

 
AR 277 (RFP) (stating that the contract awardee must meet “all the material requirements 

of [the] solicitation” (emphasis added)). Determining whether a requirement of the 

Solicitation is considered a material requirement is a matter within the Agency’s 

discretion. See Allied Tech., 94 Fed. Cl. at 40 (“[T]he Court only will overturn an 

agency’s determination that an offeror’s proposal failed to satisfy the material 

requirements of the solicitation if such a finding was arbitrary and capricious.”). And 

plaintiff has failed to meet the heavy burden necessary to show that the Agency abused 

its discretion by finding that the cost of the ISO frame--including materials and possibly 

labor hours--was not a material requirement.32 See AR 1785 (Entwistle PER); cf. L-3 

Commc’ns I, 83 Fed. Cl. at 650 (“[T]he protestor’s burden is especially heavy in 

negotiated, best value procurements.”). The court finds that the Agency’s decision had a 

rational basis and the court will not substitute its judgment for the Agency’s. Cf.

Honeywell, Inc., 870 F.2d at 648 (“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.” (internal quotation marks omitted)); Baird Corp., 1 Cl. Ct. at 

664 (stating that, under the APA standard of review, the court “should intervene only 

when it is clearly determined that the agency’s determinations were irrational or 

unreasonable”).

As to the information provided in the second exchange, the court finds that 

plaintiff has failed to make any showing that Entwistle’s description of how its proposed 

labor hours were estimated, see AR 1774 (Initial PER), was material information that was 

essential for the Agency to evaluate Entwistle’s proposal. 

duties, correctly, lawfully, and in good faith,” John Massman Contracting Co. v. United States, 

23 Cl. Ct. 24, 33 (1991) (internal quotation marks omitted); see also Schism v. United States, 

316 F.3d 1259, 1302 (Fed. Cir. 2002) (en banc) (stating that government officials are presumed 

to “perform their duties correctly, fairly, in good faith, and in accordance with law and governing 

regulations . . . and [that this presumption] is valid and binding unless well-nigh irrefragable 

proof rebuts or overcomes it” (internal quotation marks and citation omitted)). 

32 The court observes that the Independent Government Cost Estimate (IGCE) indicated 

that manufacturing an entire Hippo unit would cost $[* * *], see AR 1871 (IGCE), and that 

manufacturing the ISO frame would cost $[* * *] in materials, id. at 1872, and approximately 

$[* * *] in labor, see id. at 1874 (stating that “[l]abor hours were increased . . . due to fabrication 

process of ISO frame . . . by [* * *] hours for welder, [* * *] hours for production supervisor, 

[* * *] hours for quality, and [* * *] hours for material handler); id. at 1874-75 (providing hourly 

rates of $[* * *] for welding, $[* * *] for production supervision, $[* * *] for quality control 

inspection and $[* * *] for material handling). The fact that the IGCE suggested that the total 

cost of the ISO frame--including materials and labor--should be some $[* * *], or approximately 

[* * *] % of the estimated total cost of manufacturing an entire Hippo unit, supports a finding 

that the Agency’s determination that the omitted cost of the ISO frame was not material had a 

rational basis. 

 
Even if the court were to find that, through the two exchanges, Entwistle provided 

the Agency with information that was essential for the Agency to evaluate Entwistle’s 

proposal, the Federal Circuit has found that “[t]here is no requirement in [FAR 15.306(a)] 

that a clarification not be essential for evaluation of the proposal.” ITAC, 316 F.3d at 

1323; see id. (rejecting the appellant’s contention that “a clarification cannot call for new 

information if the information is necessary to evaluate the proposal” (internal quotation 

marks omitted)). Although plaintiff argues that the facts here are distinguishable from 

those before the Federal Circuit in ITAC, see Tr. 15:23-16:23 (Ms. Duncombe); Pl.’s 

Resp. 8-9, the Federal Circuit’s reading of FAR 15.306(a) is not fact-dependent. Thus, 

an exchange can constitute a clarification, and not a discussion, even where the 

information provided was “essential to evaluation criteria, increase[d] a past performance 

score or tip[ped] the scales toward the offeror providing the clarification.” DynCorp, 76 

Fed. Cl. at 542 (citing ITAC, 316 F.3d at 1323). This is in line with the Federal Circuit’s 

caution against “cramped conception[s] of ‘clarification[s],’” which are “not in harmony 

with the stated purpose of the 1997 amendments [to the FAR], . . . to ‘[s]upport[] more

open exchanges between the Government and industry.’” ITAC, 316 F.3d at 1323 (some 

alterations in original) (quoting Federal Acquisition Circular 97-02, 62 Fed. Reg. 51,224, 

51,224 (Sept. 30, 1997)); cf. supra note 28 (discussing the 1997 amendments to the 

FAR). 

Moreover, as defendant correctly notes, see Def.’s Mot. 33, the Agency neither 

sought nor received revisions to the terms of Entwistle’s proposal, cf. ITAC, 316 F.3d at 

1322-23 (finding that, partly because the government did not give the offeror “the 

opportunity to revise its proposal, and [the offeror] did not change the terms of its 

proposal to make it more appealing to the government,” the exchanges in question “did 

not constitute discussions”); G4S, 2013 WL 935890, at *12 (finding that exchanges were 

clarifications partly because the record did not “suggest that any negotiations took place” 

or, “[m]ore importantly, . . . that [the offeror] was given the opportunity to revise its 

proposal”); Allied Tech., 94 Fed. Cl. at 45 (finding that exchanges were clarifications 

partly because the offeror “provided no revisions or changes to its pricing in light of the 

[agency’s] inquiry”); DynCorp, 76 Fed. Cl. at 544 (same); SecureNet Co. v. United 

States, 72 Fed. Cl. 800, 815 (2006) (same). Indeed, the record does not suggest that the 

two exchanges at issue here were “undertaken with the intent of allowing [Entwistle] to 

revise its proposal.” See AR 1848, 1853 (two requests for clarification) (stating that 

clarifications are “necessary to support the Government’s assessment of the 

reasonableness of your proposed price” and advising that the clarification requests do 

“not allow you to modify your proposal, including your proposed prices, in any way”); 

cf. FAR 15.306(d) (defining “negotiations” as exchanges “that are undertaken with the 

intent of allowing the offeror to revise its proposal” and defining “discussions” as

negotiations that occur “after the establishment of the competitive range” in competitive 

acquisitions). 
Nor does the court find that Entwistle revised its proposal as result of the two 

exchanges. As to the first exchange, although Entwistle may have provided the Agency 

with required information that was not included in its proposal, the court does not find 

that Entwistle revised its proposal because Entwistle did not change its total price and did 

not “change the terms of its proposal to make it more appealing to the government.” Cf.

ITAC, 316 F.3d at 1322; id. (stating that the FAR “contemplates discussions as occurring 

the context of negotiations”). And, as to the second exchange, the court finds 

unpersuasive plaintiff’s conclusory statement that “the Agency gave Entwistle an 

opportunity to materially revise and update its proposal in narrative form,” see Pl.’s Mot. 

20, when the additional information provided by Entwistle neither changed its total price 

nor changed “the terms of its proposal to make it more appealing to the government,” cf.

ITAC, 316 F.3d at 1322.

Given the foregoing, the court finds reasonable the Agency’s interpretation of the 

two exchanges as clarifications, see AR 1848, 1853 (two requests for clarification) 

(characterizing the requests as clarifications), and therefore defers to the Agency’s view 

that the two exchanges were clarifications, cf. DynCorp, 76 Fed. Cl. at 542 (“[T]his court 

must give deference to an agency’s view that an [exchange] was a clarification, as long as 

that interpretation was permissible and reasonable.” (internal quotation marks omitted)). 

Finally, defendant argues that “[e]ven if the agency’s exchanges with Entwistle 

had constituted discussions, . . . Mil-Mar has not demonstrated that it was prejudiced.” 

Def.’s Mot. 34; see id. (arguing that plaintiff has “made no effort to show--and indeed, 

cannot show--that the information obtained from Entwistle during the exchanges in 

question had any significant effect on the probability that the agency would award the 

Hippo contract to Entwistle”). Plaintiff counters that the alleged discussions “help[ed] 

make [Entwistle’s] proposal compliant with the RFP’s requirements,” Pl.’s Resp. 9, and 

argues that “[h]ad the Agency not entered into unequal discussions with Entwistle, it 

would have concluded that it could not adequately evaluate Entwistle’s significantly 

lower price for realism and would have rejected its offer,” Compl. ¶ 117; see Tr. 14:6-8,

:16-17 (Ms. Duncombe) (arguing that the Agency sought “material information that was 

missing from the proposal” and that, “without this information[,] [Entwistle’s] proposal 

would have had to be found unacceptable”). 

The court disagrees with plaintiff’s reading of the Solicitation and finds, 

notwithstanding plaintiff’s assertions to the contrary, that the two exchanges did not 

provide Entwistle with “an opportunity to take an otherwise unacceptable proposal and 

make it acceptable.” Cf. Pl.’s Resp. 9 n.3. Section L of the Solicitation did require 

certain information--including itemized material costs estimated at over $500 per part and 

proposed direct labor hours--to be included in Attachment 16 of an offeror’s Price 

Volume. See AR 265-66 (RFP) (stating that offerors “shall” provide this information in 

Attachment 16); supra Part I.A.1 (discussing Attachment 16). However, the Solicitation 

afforded the Agency several opportunities to exercise its discretion in accepting proposals 
that did not include required information.

33 For example, the Solicitation provided that 

the Agency “may” reject proposals that “fail[] to provide any of the data and information 

required in Section L” or “omit[] significant material data and information required by 

Section L.” AR 276 (RFP). And, although the Solicitation stated that the Agency would 

award a contract only to an offeror that submitted a proposal that “[met] all the material 

requirements of [the] solicitation,” id. at 277, the Agency determined that the omitted 

requirements were not material, see AR 1785 (Entwistle PER) (stating that the 

information that Entwistle omitted from its Attachment 16 “was not significantly material 

to reject [Entwistle’s] proposal”), and the court defers to the Agency’s discretion in 

making that determination, cf. Allied Tech., 94 Fed. Cl. at 40 (“[T]he Court only will 

overturn an agency’s determination that an offeror’s proposal failed to satisfy the material 

requirements of the solicitation if such a finding was arbitrary and capricious.”). 

Moreover, as to plaintiff’s argument that, but for the improper discussions, the Agency 

would have rejected Entwistle’s proposal because “it could not adequately evaluate 

Entwistle’s significantly lower price for realism,” Compl. ¶ 117, the Solicitation also 

provided that the Agency “may reject a proposal which is not realistic . . . as to price”; 

the Solicitaiton did not state that the Agency was required to do so, AR 278 (RFP); see 

also id. at 276 (stating that the government “may” reject a proposal that “is unrealistically 

. . . low in price”); cf. infra Part III.D (discussing the Agency’s price realism analysis).34 

Given the foregoing, the court finds that plaintiff has failed to show that, but for the 

alleged improper discussions, plaintiff had “a substantial chance it would have been 

awarded the contract,” and that, therefore, plaintiff has failed to show substantial 

prejudice. Cf. Brooks Range, 101 Fed. Cl. at 707 (internal quotation marks omitted). 

D. The Agency’s Price Realism Analysis Was Rationally Based

33 The court observes that the drafting of the Solicitation helped to create this protest 

because, where the Solicitation appears to require certain information in one section, it affords 

the Agency flexibility in another. If plaintiff considered the terms of the Solicitation an issue, 

plaintiff should have objected to the terms prior to the close of bidding. Blue & Gold Fleet, L.P. 

v. United States (Blue & Gold), 492 F.3d 1308, 1313 (Fed. Cir. 2007) (“[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 

subsequently in a bid protest action in the [United States] Court of Federal Claims.”).

34 Moreover, plaintiff fails to account for the possibility that, had the Agency engaged in 

discussions with Entwistle, it could have satisfied FAR 15.306(d)(1) by opening up discussions 

with all of the offerors. Cf. FAR 15.306(d)(1) (providing that when the government decides to 

hold discussions, they “must be conducted . . . with each offeror within the competitive range”). 

Plaintiff does not suggest that its own proposal would have changed if the Agency had held 

discussions with all of the offerors. Cf. SecureNet Co. v. United States, 72 Fed. Cl. 800, 815 

n.23 (2006) (noting, in concluding that communications did not amount to discussions, that the 

plaintiff did “not offer any reason to believe its own proposal would have changed if 

comparative questions” were asked of the plaintiff). 

 
Although the FAR requires contracting officers to evaluate the reasonableness of 

offerors’ proposed prices to ensure that the prices are fair and reasonable,

35 FAR 15.404-

1(a)(1), “the FAR does not mandate that either a ‘cost realism analysis’ or ‘price realism 

analysis’ be performed,” Info. Scis. Corp. v. United States, 73 Fed. Cl. 70, 101 (2006)

(emphasis omitted), reconsidered in part on other grounds, 75 Fed. Cl. 406 (2007); see

First Enter. v. United States, 61 Fed. Cl. 109, 123 (2004) (stating that although the FAR 

requires “the contracting officer to do a price reasonableness analysis, there is no similar 

requirement to do a cost realism analysis”). Pursuant to the FAR, agencies perform cost 

realism analyses “to determine whether the estimated proposed cost elements are realistic 

for the work to be performed; reflect a clear understanding of the requirements; and are 

consistent with the unique methods of performance and materials described in the 

offeror’s technical proposal.” FAR 15.404-1(d)(1). 

Where, as here, an Agency contemplates a fixed-price contract, Compl. ¶ 28, “the 

‘realism’ of offerors’ proposed prices would not ordinarily be considered[] because the 

fixed-price [contract] puts the risk of underpriced offers on the contractor,” Afghan Am. 

Army Servs. Corp. v. United States (Afghan Am.), 90 Fed. Cl. 341, 356 (2009); see

Ceres Envtl. Servs., Inc. v. United States (Ceres), 97 Fed. Cl. 277, 306 (2011) (stating 

that in “a fixed-price contract[,] . . . the risk for not performing at the contractually 

binding price falls squarely and exclusively on the contractor[]”). However, an agency 

“may” perform price realism analyses

36 “on competitive fixed-price-type contracts when 

35 “Price reasonableness generally addresses whether a price is too high . . . .” First 

Enter. v. United States, 61 Fed. Cl. 109, 123 (2004); see DMS All-Star Joint Venture v. United 

States (DMS), 90 Fed. Cl. 653, 657 n.5 (2010) (“[A] price reasonableness analysis has the goal 

of preventing the government from paying too much for contract work.”). “Normally, 

competition establishes price reasonableness.” FAR 15.305(a)(1). In accordance with the FAR, 

the Solicitation provided that the Agency’s evaluation of proposals would “include an 

assessment of the reasonableness of the proposed prices to accomplish the solicitation 

requirements” and stated that the Agency “may reject a proposal which is not . . . reasonable[] as 

to price.” AR 278 (RFP); cf. supra Part I.D (discussing the price evaluation reports in which the 

Agency analyzed the reasonableness of the offerors’ prices). Plaintiff does not raise any 

arguments with respect to the Agency’s price reasonableness analysis. 

36 Of note, the FAR does not explicitly address price realism. See DMS, 90 Fed. Cl. at 

663 (“A ‘price realism analysis,’ a term not employed in the FAR, examines the performance 

risk of proposals in a fixed-price contract procurement, with particular attention to the risk of 

low-priced proposals, and may include the cost realism analysis referenced in FAR 15.404-

1(d).”); Ralph C. Nash & John Cibinic, Price Realism: It’s Different from Price Reasonableness, 

17 No. 3 Nash & Cibinic Rep. ¶ 14 (2003) (stating that FAR 15.404-1(d)(3) “is a cryptic way of 

dealing with price realism by addressing the use of cost realism on fixed-price type contracts”); 

cf. Afghan Am. Army Servs. Corp. v. United States, 90 Fed. Cl. 341, 355 (2009) (stating that 

“cost realism” is “frequently referred to as price realism” (internal quotation marks omitted)). 

 
new requirements may not be fully understood by competing offerors,” and the “[r]esults 

of the analysis may be used in performance risk assessments and responsibility 

determinations,” FAR 15.404-1(d)(3); see Ceres, 97 Fed. Cl. at 303 (“[A]n agency may, 

at its discretion, provide for the use of a price realism analysis to measure an offeror’s 

understanding of the solicitation requirements, or to avoid the risk of poor performance 

from a contractor who is forced to provide goods or services at little or no profit.”). A 

price realism analysis addresses whether the offeror “is proposing a price so low that 

performance of the contract will be threatened.” DMS, 90 Fed. Cl. at 657 n.5; see Ceres, 

97 Fed. Cl. at 303 (“Arguments that an agency did not perform an appropriate analysis to 

determine whether prices are too low, such that there may be a risk of poor performance, 

concern price realism.” (internal quotation marks omitted)). The results of an agency’s 

price realism analysis cannot be used to adjust the offered prices. See FAR 15.404-

1(d)(3). 

“[U]nless the agency commits itself to a particular methodology in a solicitation,”

Afghan Am., 90 Fed. Cl. at 358, “the nature and extent of a price realism analysis, as well 

as an assessment of potential risk associated with a proposed price, are generally within 

the sound exercise of the agency’s discretion,” id. at 357 (internal quotation marks 

omitted); see Ceres, 97 Fed. Cl. at 303 (“The Court’s review of the agency’s [price 

realism] analysis is limited to determining whether the evaluation was reasonable and 

consistent with the solicitation’s evaluation criteria.”). “The agency’s discretion is even 

more pronounced when the Solicitation is silent regarding the methodology to be used in 

conducting a price realism analysis . . . .” Afghan Am., 90 Fed. Cl. at 358 (internal 

quotation marks omitted); see Ne. Military Sales, Inc. v. United States, 100 Fed. Cl. 103, 

118 (2011) (stating that an agency “enjoy[s] broad discretion in conducting its price 

realism analysis” when “[t]he Solicitation does not describe the methodology required to 

conduct [a] price realism analysis” (first alteration in original) (internal quotation marks 

omitted)). However, if an agency made “irrational assumptions or crucial 

miscalculations,” the court may find that the agency’s price realism analysis lacked a 

rational basis. Afghan Am., 90 Fed. Cl. at 358 (internal quotation marks omitted); see

Ceres, 97 Fed. Cl. at 307 (“This Court recognizes that an agency’s price-realism analysis 

lacks a rational basis if the contracting agency made irrational assumptions or critical 

miscalculations or used an evaluation method that produced a misleading result.” 

(internal quotation marks omitted)). 

Here, the Solicitation neither required that the Agency perform a price realism 

analysis nor provided that, if the Agency did perform a price realism analysis, a particular 

methodology must be used. See AR 276-78 (RFP) (stating the evaluation factors for the 

contract award). Instead, the Solicitation stated that the Agency “may” reject a proposal 

that “reflects an inherent lack of technical competence or a failure to comprehend the 

complexity and risks required to perform the solicitation requirements due to submission 

of a proposal which is unrealistically . . . low in price,” id. at 276; see id. at 278 (stating 

that the Agency “may reject a proposal which is not realistic . . . as to price”), or that 
“contains any unexplained significant inconsistency between the proposed effort and cost 

and/or price, which implies the offeror [either] . . . has an inherent misunderstanding of 

the [SOW], or . . . has an inability to perform the resultant contract,” id. at 276. Given 

that Entwistle’s price was approximately [* * *]% lower than that of the next lowest 

offeror’s price, see AR 1905 (SSDD) (observing that the next lowest offeror’s price was 

[* * *]% higher than Entwistle’s), the contracting officer acted within the Agency’s 

discretion, cf. Afghan Am., 90 Fed. Cl. at 357-58, and “employed cost analysis37

techniques to determine whether it [was] reasonable to conclude that Entwistle [could] 

perform the requirements of the contract based on its offered price,” AR 1906 (SSDD) 

(footnote added); cf. Tr. 20:20-22 (Ms. Duncombe) (stating that the Agency performed a 

price realism analysis because Entwistle’s price was significantly lower than that of the 

other offerors). 

Further, where a solicitation provides that an agency may perform a price realism 

analysis to assess “an offeror’s understanding of the solicitation’s requirements” or to 

“assess[] the risk inherent in an offeror’s proposal,” an acceptable price realism 

methodology might include “comparison of the prices received with each other; 

comparison of previously proposed prices for the same or similar items; comparison with 

the [IGCE]; and analysis of pricing information provided by the offeror.” Afghan Am., 

90 Fed. Cl. at 358. Here, the Agency compared Entwistle’s estimated material costs to 

those of the other offerors and the IGCE, see infra Part III.D.1, evaluated Entwistle’s

estimated prices of the engine, tank and frame, see infra Part III.D.2, and compared 

Entwistle’s proposed labor hours to those of the other offerors, see infra Part III.D.3; see 

also AR 1906 (SSDD) (stating that “[t]he applied cost analysis techniques consisted of a 

comparison of cost elements, and a review of Entwistle’s labor hours and material type(s) 

to determine risk of successful performance at the offered price”); Tr. 20:23-21:8 (Ms. 

Duncombe) (describing the Agency’s price realism methodology). Based on this 

analysis, the Agency concluded that Entwistle’s price was not unrealistically low. See

AR 1906-08 (SSDD) (describing the Agency’s findings). 

Plaintiff argues that the Agency’s price realism analysis lacked a rational basis. 

See Pl.’s Mot. 31. Plaintiff states that “[a]lthough the Agency attempted to use several 

acceptable methods to analyze Entwistle’s price, . . . its analyses failed because they were 

based on irrational assumptions and/or critical miscalculations.” Id. at 21; see Pl.’s Resp.

10 (“[I]t is not the methodology that Mil-Mar challenges; it is the implementation of the 

methodology.”); see also Tr. 21:9-13 (Ms. Duncombe) (“[O]n its face, it sounds like this 

37 FAR 15.404-1(c)(1) defines “[c]ost analysis” as “the review and evaluation of any 

separate cost elements and profit or fee in an offeror’s . . . proposal, as needed to determine . . . 

cost realism.” FAR 15.404-1(c)(1); see FAR 15.404-1(a)(4) (stating that cost analysis may be 

used “to determine . . . cost realism”). “[W]hen contracting on a firm-fixed-price . . . basis, 

comparison of the proposed prices will usually satisfy the requirement to perform a price 

analysis, and a cost analysis need not be performed.” FAR 15.305(a)(1). 

 
would be a reasonable methodology, but once you get into it and really look at the things

that they compared, it demonstrates that it was simply done to justify Entwistle’s price.”). 

Specifically, plaintiff contends that the Agency employed irrational material cost 

comparison techniques, conducted an irrational evaluation of Entwistle’s frame and 

conducted an irrational comparison of labor hours. See Pl.’s Mot. 32. Plaintiff also 

accuses the Agency of cherry-picking its price realism analysis “in an effort to find a few 

numbers to reach its desired end, i.e., that Entwistle’s significantly lower price is realistic 

and poses no undue risk to the Government.” Id. at 31.

38 

Defendant counters that there is no basis to conclude that the Agency’s price 

realism analysis lacked a rational basis, see Def.’s Reply 5-6, and that plaintiff’s 

arguments to the contrary “simply amount to a disagreement with the agency’s 

reasoning,” Tr. 73:17-19 (Ms. Thomas); see Def.’s Mot. 38 (claiming that plaintiff’s

arguments amount to “nothing more than . . . unsupported disagreements with the 

substance of the agency’s conclusions”). Defendant further contends that plaintiff’s 

arguments “all involve exactly the sort of flaw that Mil-Mar accuses the agency’s 

analysis of including.” Tr. 72:11-13 (Ms. Thomas). That is, defendant accuses plaintiff 

of “cherry pick[ing]” comparisons that “Mil-Mar believes support[] the conclusion it 

wants to reach, which is Entwistle’s price was too low.” Id. at 72:14-16; accord Tr. 

82:18-23 (Henry E. Steck) (“[W]e can slice and dice these cost proposals 25 different 

ways and pick out parts and say . . . we think the agency compared this to that, but it 

should have compared something else. Those were judgments within the agency’s 

discretion.”). Defendant observes that the price realism analysis that the Agency 

conducted sufficiently satisfied the Agency that Entwistle’s price did not reflect either “a 

lack of understanding of the requirements of the contract” or “that Entwistle wasn’t 

capable of meeting the requirements of the contract.” Tr. 71:8-15 (Ms. Thomas); see id.

at 68:8-10 (claiming that the Agency “looked extensively at Entwistle’s price” and 

“determined that it wasn’t undertaking any particular risk”); cf. AR 276 (RFP) (stating 

38 Plaintiff contends that the Agency demonstrated a “willingness to ignore any 

information that called into question Entwistle’s understanding of the technical requirements.” 

Pl.’s Mot. 31; see Tr. 17:15-19 (Ms. Duncombe) (claiming that “the agency was blinded by 

[Entwistle’s] low price, and [that the agency] really wanted to find a way to make sure this really 

substantially lower price proposal could be awarded the contract”). To the extent plaintiff claims 

that the Agency carried out its price realism analysis in bad faith, plaintiff has failed to rebut with 

“well-nigh irrefragable proof” the presumption that “government officials discharge their duties, 

correctly, lawfully, and in good faith.” John Massman Contracting Co., 23 Cl. Ct. at 33 (internal 

quotation marks omitted); see also Schism, 316 F.3d at 1302 (stating that government officials 

are presumed to “perform their duties correctly, fairly, in good faith, and in accordance with law 

and governing regulations . . . and [that this presumption] is valid and binding unless well-nigh 

irrefragable proof rebuts or overcomes it” (internal quotation marks and citation omitted)); cf.

supra note 31 (finding that, with respect to the Agency’s overall evaluation of the proposals, 

plaintiff failed to rebut the presumption that government officials properly perform their duties).

 
that the Agency may reject a proposal that reflects either “an inherent misunderstanding 

of the scope of the work, or . . . an inability to perform the resultant contract”). 

For the following reasons, the court finds that the Agency’s price realism analysis 

was rationally based. 

1. The Agency’s Comparison Techniques for Material Costs Was Rationally 

Based

As part of its price realism analysis of Entwistle’s material costs, the Agency 

compared two categories of Entwistle’s material costs--costs of parts below $500 and 

total material costs (the sum of parts above and below $500)--to those of the other 

offerors and the IGCE. See AR 1906 (SSDD) (comparing costs). The material cost 

information relied on by the Agency is provided in the following chart:

[* * *] Entwistle [* * *] [* * *] [* * *] Mil-Mar [* * *] IGCE

Parts > 

$500 $[* * *] $[* * *] $[* * *] $[* * *] $[* * *] $[* * *] $[* * *] $[* * *]

Parts < 

$500 $[* * *] $[* * *] $[* * *] $[* * *] $[* * *] $[* * *] $[* * *] -

Total 

Costs $[* * *] $[* * *] $[* * *] $[* * *] $[* * *] $[* * *] $[* * *] $[* * *]

See id. With respect to parts below $500, the Agency observed that Entwistle was 

“within the range of the other offerors, particularity that of [* * *], [* * *] and Mil-Mar 

(the second, third and fourth low offerors), whose prices are within [* * *]% of each 

other.” Id. With respect to total material costs, which account for “66% to 87% of total 

price,” the Agency observed that “Entwistle’s total material cost of $[* * *] compare[d] 

favorably to the IGCE cost of $[* * *].” Id. 

Plaintiff contends that the Agency’s analysis of these two categories does not 

support the realism of Entwistle’s price. See Pl.’s Mot. 22-24. First, plaintiff argues that 

the costs of parts below $500 “is a small category of the total cost (10% to 30%) for the 

Hippo,” id. at 23, so relying “on that to determine if Entwistle understood the complexity 

of this RFP or whether [Entwistle’s] price was realistic really doesn’t make sense,” Tr.

24:17-20 (Ms. Duncombe). Second, plaintiff argues that, instead of “compar[ing] 

Entwistle’s total material costs to any of the other offerors,” the Agency compared 

Entwistle’s total material costs to those of the IGCE “because that’s the only one that it 

would have been comparable to.” Id. at 22:21-23; see id. at 23:16-18 (claiming that the 
Agency “chose the one thing that it could compare[,] the IGCE to Entwistle[,] to find that 

[Entwistle’s] cost was realistic”).39 

Plaintiff argues that the Agency should have instead looked at the costs of parts 

above $500. See Pl.’s Mot. 23-24. As plaintiff sees it, “it makes no sense that the 

Agency completely disregarded the costs of the Parts Above $500 among the offerors and 

the IGCE, especially [because] that is the category where the offerors’ costs show the 

greatest disparity.” Id. at 23. Plaintiff also argues that the Agency “ignored” the fact that 

the most important and expensive parts of the Hippo are those above $500--the tank and 

the frame. See id. at 22, 24. As support, plaintiff cites to an August 28, 2012 Final SSA 

Brief that includes a chart titled “Comparison of Common Material Items Over $500.” 

See id. at 24 (citing AR 2336 (Final SSA Brief)). A modified40 excerpt of this chart, 

showing only the costs of the tank and frame (whether bid separately or together), is 

below:

Item [* * *] Entwistle [* * *] [* * *] [* * *] Mil-Mar [* * *] IGCE

Tank/ 

Frame

$[* * *] -- -- $[* * *] -- $[* * *] --

Tank -- $[* * *] $[* * *] -- -- -- $[* * *] $[* * *]

Frame -- $[* * *]41 $[* * *] -- -- -- $[* * *] $[* * *]

39 Plaintiff also argues that the Agency “totally ignore[d] the fact that Entwistle’s 

proposal was missing information about its material costs.” Pl.’s Mot. 22-23; see Tr. 22:25-23:9 

(Ms. Duncombe) (stating that the Agency “ignored the fact that Entwistle’s proposal was missing 

information” regarding the cost of the frame as well as costs of parts below $500); cf. id. at 

24:21-25:22 (explaining how the Agency calculated Entwistle’s cost of parts below $500). The 

record does not support plaintiff’s argument. As discussed in Part III.C above, the Agency 

recognized that Entwistle did not provide all of the requested material cost information in its 

Attachment 16 but concluded that the omitted information “was not significantly material.” See

AR 1785 (Entwistle PER); supra Part III.C. Therefore, the Agency did not “entirely fail[] to 

consider an important aspect of the problem.” Cf. Ala. Aircraft Indus., Inc.-Birmingham v. 

United States (Ala. Aircraft), 586 F.3d 1372, 1376 (Fed. Cir. 2009) (internal quotation marks 

omitted). Instead, the court finds that “[t]he agency is going into this procurement with its eyes 

wide open.” Cf. Ceres Envtl. Servs., Inc. v. United States (Ceres), 97 Fed. Cl. 277, 306 (2011). 

40 The chart in the Final SSA Brief included additional information but did not include a 

row that tabulated the total prices or a column for the IGCE. See AR 2336 (Final SSA Brief). 

The court notes that the price for the frame in the IGCE does not include labor hours, see AR 

1872 (IGCE) (listing material costs only); cf. supra note 32 (calculating $[* * *] as the total cost 

of the IGCE frame, inclusive of materials and labor), but that the price for Entwistle’s frame does 

include labor hours, in addition to other expenses, see infra note 41. 

41 The SSA calculated the cost of Entwistle’s ISO frame because this information was 

not provided by Entwistle. See AR 2336 (Final SSA Brief) (stating that the cost of Entwistle’s 

frame consisted of “material + direct labor + [overhead], [general and administrative expenses], 

 
Total $[* * *] $[* * *] $[* * *] $[* * *] -- $[* * *] $[* * *] $[* * *]

see AR 2336 (Final SSA Brief); AR 1872 (IGCE).

42 According to plaintiff’s calculations, 

the total cost of Entwistle’s tank and frame is [* * *]% lower than that of the IGCE, Pl.’s 

Mot. 25, and “would have to increase by nearly [* * *]% to reach the next lowest offer 

for these same two items ([* * *]’s estimate of $[* * *]),” id. at 24 (emphasis omitted). 

Plaintiff concludes that had the Agency considered this “readily apparent information” it 

would have realized “just how understated Entwistle’s prices were on the Hippo’s most 

important (and costly) components.” Id. at 25. However, the “calculations” offered as 

part of plaintiff’s argument, see id. at 24-25, result in an overstatement of the difference 

between the numbers compared. For example, the difference between the total cost of 

Entwistle’s tank and frame and the total cost of the IGCE tank and frame is $[* * *]. See

AR 2336 (Final SSA Brief) (listing $[* * *] as the total cost of Entwistle’s tank and 

frame); AR 1872 (IGCE) (listing $[* * *] as the total cost of the IGCE tank and frame); 

cf. supra note 40 (noting that the cost of the IGCE frame does not include labor hours). 

The $[* * *] difference does not reflect, as plaintiff claims, that the price of Entwistle’s 

tank and frame was [* * *]% lower than the price of the IGCE tank and frame. Cf. Pl.’s 

Mot. 25. Instead, the $[* * *] difference reflects that the price of the IGCE tank and 

frame was approximately [* * *]% higher than that of Entwistle43 or, stated another way, 

that Entwistle’s price was approximately [* * *]% lower than the price of the IGCE tank 

and frame.

44

Defendant contends, and the court agrees, that nothing in the Solicitation required 

the Agency to make observations about the costs of parts over $500, Def.’s Reply 7, or to 

compare Entwistle’s total material costs to those of the other offerors. Such matters are 

Profit”); Pl.’s Mot. 24 n.15; cf. AR 1907 (SSDD) (stating that the Agency calculated a cost of

$[* * *] for Entwistle’s ISO frame). 

42 [* * *], [* * *] and Mil-Mar planned to purchase the tank and frame as a combined 

unit, see AR 1839-40 (Final Price Evaluation Report (Final PER)); Tr. 27:20-22 (Ms. 

Duncombe); [* * *] planned to purchase the tank and frame separately, Tr. 27:23-24 (Ms. 

Duncombe); see AR 1839 (Final PER); [* * *] and Entwistle planned to purchase the tank and 

manufacture the frame, AR 1839, 1841 (Final PER); Tr. 27:25-28:1 (Ms. Duncombe); and 

[* * *] planned to manufacture both the tank and the frame, AR 1840 (Final PER). The IGCE 

was based on purchasing the tank and manufacturing the frame. See AR 1872, 1874 (IGCE). 

43 The court reached this figure by dividing the difference between the total cost of 

Entwistle’s tank and frame and the total cost of the IGCE tank and frame ($[* * *]) by the total 

cost of Entwistle’s tank and frame ($[* * *]). 

44 The court reached this figure by dividing the difference between the total cost of 

Entwistle’s tank and frame and the total cost of IGCE tank and frame ($[* * *]) by the total cost 

of IGCE’s tank and frame ($[* * *]).

 
entirely within the Agency’s discretion. See Afghan Am., 90 Fed. Cl. at 357-58. 

According to defendant, “[t]he SSA expressly chose to compare the IGCE materials cost 

to Entwistle’s materials cost because materials costs represented the overwhelming 

majority of the total costs involved in performance of the contract.” Def.’s Mot. 36-37; 

see Tr. 72:23-73:2 (Ms. Thomas) (“The agency identified the aspects of the price that it 

believed were important. Notably, the materials cost, because that did represent for every 

offeror between 66 and 83 percent of the total cost . . . .”). To the extent plaintiff argues 

“that the agency ‘ignored,’ ‘completely disregarded,’ or ‘failed to evaluate’ a variety of 

pieces of information related to price,” Def.’s Mot. 36 (quoting Pl.’s Mot. 23), defendant 

argues that plaintiff is merely “complaining that the agency did not conclude . . . that 

Entwistle’s price was unrealistic,” id. at 37. Indeed, the record does not support 

plaintiff’s argument that the Agency ignored the most expensive and important parts of 

the Hippo--namely the tank and frame. Cf. Pl.’s Mot. 22, 24. As intervenor correctly 

observes, “[t]he total material cost assessed by the [Agency] would necessarily include 

the cost of those major components,” and, “[f]urther, the SSDD specifically documents 

the [Agency’s] evaluation of Entwistle’s pricing for the water tank [and] ISO frame.” 

See Intervenor’s Mot. 26; infra Part III.D.2 (discussing the Agency’s evaluation of 

Entwistle’s costs of the tank and frame). 

Further, where, as here, a solicitation is silent as to the methodology to be used in 

performing a price realism analysis, the Agency “enjoy[s] broad discretion in conducting 

its price realism analysis.” Ne. Military Sales, Inc., 100 Fed. Cl. at 118 (alteration in 

original) (internal quotation marks omitted). Plaintiff has simply failed to establish that

the Agency’s examination of total material costs and the costs of parts below $500 relied 

on “irrational assumptions” or made “crucial miscalculations.” Cf. Afghan Am., 90 Fed. 

Cl. at 358 (internal quotation marks omitted). Therefore, “given the deference to be 

afforded the agency in price realism assessments and the agency’s willingness to assume 

risk,” Ceres, 97 Fed. Cl. at 308; cf. AR 1786 (Entwistle PER) (observing that “utilizing a 

firm-fixed price contractual instrument . . . mitigates the Government’s risk”), the court 

finds that the Agency’s price realism analysis of the material costs was reasonable and 

had a rational basis. 

2. The Agency’s Evaluation of the Frame Was Rationally Based

The Agency’s price realism analysis also included an evaluation of Entwistle’s 

engine, tank and frame. See AR 1906 (SSDD). The Agency’s analysis of Entwistle’s

engine and tank, which plaintiff does not contest, see Pl.’s Mot. 25-28 (disputing only the 

Agency’s analysis of the frame), included performing market research, reviewing quotes 

provided by Entwistle, and securing review by the United States Army Tank Automotive 

Research, Development and Engineering Center (TARDEC), see AR 1906-07 (SSDD); 

AR 1869 (Memorandum for Record (MFR)) (discussing the reviews by TARDEC). The 

Agency’s analysis of Entwistle’s frame included reviews obtained from a Production 

Capability evaluator and a TARDEC engineer. See AR 1907 (SSDD). The following 
passage contains the full discussion in the SSDD of the Agency’s price realism analysis 

of Entwistle’s frame: 

Entwistle provided a material cost of $[* * *] plus [* * *] labor hours to 

fabricate the ISO frame. Using [the Agency’s] IGCE template in the 

Electronic Resource Center, the Government calculated an estimated price 

of $[* * *] for the frame. The Production Capability evaluator and a 

TARDEC engineer who specializes in structural weldments looked at 

completed HIPPO ISO frame[s]. As a result of their review, we have no 

basis to question the [* * *] hours.

Id.

Plaintiff argues that the Agency’s evaluation of the frame was “irrational and 

incomplete,” Pl.’s Mot. 25, because the Agency did not properly review Entwistle’s 

estimated labor hours and material costs of the frame, Tr. 6:12-14 (Ms. Duncombe). 

Plaintiff first argues that the Agency failed to offer “substantive consideration of the 

[* * *] [labor] hours” proposed by Entwistle to fabricate the frame. Pl.’s Mot. 26. The 

record does not support plaintiff’s contention. As referenced in the SSDD, the Agency 

asked TARDEC to review the frame. See AR 1907 (SSDD); Pl.’s Mot. 26. In an e-mail

dated August 29, 2012, a TARDEC engineer, Catherine Thomas, offered her evaluation 

of the [* * *] hours Entwistle estimated it would take to manufacture the frame: “Based 

on review of [an] ISO frame on a completed Hippo from [Agency] inventory45 and in my 

role of production capability, I cannot conclude that an offeror, with [* * *] hours of 

machining and [* * *] hours of welding, will not be able to successfully perform and 

meet the solicitation requirements.” AR 1868 (Aug. 29, 2012 e-mail) (footnote added). 

Also in the record is an undated Memorandum for Record signed by the SSA Advisor, 

Bob Shalewitz, and the Source Selection Experience Factor Chief, Christopher Bensch 

(Mr. Bensch), stating that “TARDEC has reviewed the estimated labor hours proposed by 

[Entwistle] for the fabrication of ISO frames, and cannot conclude them to be deficient 

for an effort of such scope and magnitude.” AR 1869-70 (MFR). Given the foregoing, 

the court finds reasonable the Agency’s reliance on the reviews of TARDEC in its 

45 Plaintiff argues that the United States Army Tank Automotive Research, Development 

and Engineering Center (TARDEC) based its review of Entwistle’s labor hours on “an actual 

completed Hippo ISO frame from the Agency’s inventory,” or, in other words, a frame 

manufactured by Mil-Mar’s subcontractor. See Pl.’s Mot. 26. Plaintiff contends, without 

citation, that Mil-Mar estimates that “it takes [* * *] hours to fabricate the ISO frame[,] . . . more 

than [* * *] the number of hours proposed by Entwistle.” Id. (emphasis omitted). Defendant 

counters that plaintiff relies on information that is not in the record in its calculation of “the 

number of labor hours supposedly required by Mil-Mar’s subcontractor to make a Hippo frame.” 

Def.’s Mot. 40 n.6. Plaintiff does not respond to defendant’s argument. The court does not 

consider plaintiff’s unsupported factual contention in reaching its decision.

 
evaluation of the [* * *] labor hours proposed by Entwistle to fabricate the frame and 

finds that this evaluation, to the extent it informed the Agency’s price realism analysis of 

Entwistle’s frame, had a rational basis.

Plaintiff next argues that the record does not support “that the Agency analyzed 

the price of the materials proposed by Entwistle to construct the ISO frame,” Pl.’s Resp. 

13, and that “[t]here is nothing to support the realism of Entwistle’s material cost for the 

ISO frame,” Pl.’s Mot. 27. Plaintiff contends that, although TARDEC engineer 

Catherine Thomas addressed the number of labor hours proposed by Entwistle to 

manufacture the frame in the August 29, 2012 e-mail, she “never evaluated the ISO frame 

material cost supplied by Entwistle.” Id. (capitalization and emphasis omitted). Plaintiff 

also contends that the frame requires a significant amount of expensive steel, see id. at 

26, and notes that the IGCE’s estimated material cost of the frame was $[* * *], nearly 

three times greater than Entwistle’s estimated material cost of $[* * *], see id. (citing AR 

1872 (IGCE)); cf. supra Part III.D.1 (finding that the Solicitation did not require the 

Agency to make specific observations about or comparisons of the costs of parts over 

$500 and that such matters are within the Agency’s discretion). 

Defendant counters that “the agency did evaluate the cost of Entwistle’s Hippo 

frame” and cites as support the following statement in the Memorandum for Record, 

Def.’s Mot. 37: “TARDEC has reviewed the estimated material cost quoted by 

[Entwistle] for fabrication of the ISO frame, and cannot conclude the proposed solution 

won’t meet the technical requirements of the solicitation at the estimated material cost,” 

AR 1869 (MFR). Claiming that the Memorandum for Record statement “is untrue, 

unfounded, and undocumented,” Pl.’s Mot. 27, plaintiff contends that “the only document 

written by the TARDEC engineer with regard to the ISO frame” is the August 29, 2012 

e-mail, which “contains nothing relative to the cost of the materials to construct the

frame,” Pl.’s Resp. 12-13. However, as defendant points out, see Def.’s Reply 7, the 

Memorandum for Record is signed by Mr. Bensch, himself a TARDEC engineer, see AR 

1870 (MFR); AR 2674 (Acquisition Plan) (identifying Mr. Bensch as a system engineer 

for TARDEC). The court agrees with defendant that “[t]here is no reason to doubt Mr. 

Bensch’s statement that TARDEC reviewed and found no fault with Entwistle’s estimate 

of the materials cost of the frame.”46 Def.’s Reply 7. Therefore, to the extent that the 

46 During oral argument, plaintiff’s counsel cited Cohen Financial Services, Inc. v. 

United States (Cohen), No. 13-37, 2013 WL 1367653 (Fed. Cl. Mar. 27, 2013) as support for the 

proposition that, if there is no supporting documentation for TARDEC’s conclusion, then the 

Court is unable to determine whether the Agency acted arbitrarily, see Tr. 30:21-31:14 (Ms. 

Duncombe). The court finds plaintiff’s reliance on Cohen misplaced. 

Cohen involved a solicitation issued by the Federal Deposit Insurance Corporation 

(FDIC). Cohen, 2013 WL 1367653, at *1. The FDIC uses an Acquisition Policy Manual (APM) 

and a manual titled Acquisition, Procedures, Guidance and Information (PGI) with FDICspecific requirements. See id. at *3-4. One such requirement mandates that the FDIC Technical 

 
Agency relied on the reviews of TARDEC in its analysis of Entwistle’s material cost of 

the frame, the court finds this reliance reasonable.47

Plaintiff has failed to establish that, by relying on the reviews of TARDEC 

engineers, the Agency made “irrational assumptions or crucial miscalculations.” Cf.

Afghan Am., 90 Fed. Cl. at 358 (internal quotation marks omitted). “[G]iven the 

deference to be afforded the agency in price realism assessments and the agency’s 

willingness to assume risk,” Ceres, 97 Fed. Cl. at 308; cf. AR 1786 (Entwistle PER) 

(observing that “utilizing a firm-fixed price contractual instrument . . . mitigates the 

Evaluation Panel (Panel) “determin[e] price realism and document[] its analysis in either the

[Panel] Report or a written memorandum to the [contracting officer].” Id. at *15 (some 

alterations in original) (internal quotation marks omitted); see id. at *1 (identifying the Panel). 

The court found that, in violation of the foregoing APM and PGI requirement, the FDIC’s 

“single paragraph stating only that [a price realism] analysis was performed, together with a 

chart showing each offeror’s overall proposed price,” did not constitute adequate documentation. 

See id. at *15. The court stated that, “[w]ithout a description of the facts analyzed, and the 

reasoning that connects the facts with the conclusions, the court is not in a position to determine 

whether an agency exercised its discretion in a non-arbitrary manner.” Id.; cf. Tr. 31:9-14 (Ms. 

Duncombe) (invoking this language from Cohen). 

Here, the court considers the adequacy of the Agency’s evaluation of Entwistle’s estimate 

of the material cost of the frame in light of the FAR and the terms of the Solicitation and finds 

the explanation for the Agency’s evaluation adequate. 

47 Moreover, even if the Agency had not analyzed the material cost of Entwistle’s frame, 

nothing in the Solicitation requires that the Agency examine this information as part of a price 

realism analysis. These are matters that are entirely within the Agency’s discretion, cf. Afghan 

Am., 90 Fed. Cl. at 358 (“[T]he nature and extent of a price realism analysis is ultimately within 

the sound exercise of the agency’s discretion, unless the agency commits itself to a particular

methodology in a solicitation.”), and the court will not second guess the Agency’s decision to 

accept the risk associated with Entwistle’s prices, cf. Ceres, 97 Fed. Cl. at 306 (stating that, 

where “[t]he agency is going into [a] procurement with its eyes wide open as to lower-thanexpected pricing,” the agency’s decision “to take the risk associated with those low prices . . . is 

a business judgment and should not be second-guessed by [the] court”). Despite plaintiff’s 

arguments to the contrary, see Tr. 31:15-25 (Ms. Duncombe) (claiming that an analysis of the 

material cost of the frame was necessary to conclude that Entwistle’s “overall price was realistic 

and that it understood the complexity of performing this contract”), as discussed in Part III.C 

above, the Agency did not consider the material cost of Entwistle’s frame to be “significantly 

material,” see AR 1785 (Entwistle PER); supra Part III.C (finding that the Agency’s decision had 

a rational basis). Accordingly, to the extent the Agency failed to analyze the material cost of 

Entwistle’s frame as part of its price realism analysis, the Agency did not “entirely fail[] to 

consider an important aspect of the problem.” Cf. Ala. Aircraft, 586 F.3d at 1376 (internal 

quotation marks omitted). 

 
Government’s risk”), the court finds that the Agency’s price realism analysis of the frame 

was reasonable and had a rational basis. 

3. The Agency’s Comparison of Labor Hours Was Rationally Based

In addition to evaluating the price realism of Entwistle’s material costs and 

Entwistle’s prices for the engine, tank and frame, the Agency evaluated whether 

Entwistle’s labor hours and labor cost were realistic. See AR 1906-07 (SSDD). As part 

of this evaluation, the Agency created a table, which appears below, that compares the 

offerors’ proposed labor hours for first article test (FAT) units and first year production: 

[* * *] Entwistle [* * *] [* * *] [* * *] Mil-Mar [* * *]

FAT & 1st Yr 

Prod Labor Hrs [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]

Id. at 1906. The Agency determined that “Entwistle’s labor hours for first article test and 

first year Production combined are within the range of the other offerors, particularly that 

of Mil-Mar and [* * *] whose hours are within [* * *]% of each other.”48 Id. at 1907. 

The Agency referenced Entwistle’s response to the Agency’s fourth request for 

clarification: “Entwistle stated it estimated production labor hours for each labor 

category based on its understanding of the RFP requirements. Based on its experience 

with design programs, [Entwistle] applied a factor to the production hours to arrive at the 

first article labor hours.” Id.; see supra Part I.C (discussing requests for clarification). 

The Agency also referenced a review by TARDEC, which, according to the Agency,

“gave credence to [Entwistle’s] projected first article hours, indicating the total sum of 

hours is plausible for an effort of such scope and magnitude.” AR 1907 (SSDD). 

With respect to labor cost, Entwistle estimated $[* * *] in labor cost per Hippo, 

which consisted of “[* * *] hours associated with machining, welding and assembly.” Id. 

The Agency observed that “Entwistle’s unit labor cost of $[* * *]/unit appears low when 

compared to the other offerors with respect to the 1st year production labor cost.” Id. 

However, the Agency also noted that “the average proposed labor cost [for each of the 

offerors] is [* * *]% of total price,”49 and, because “Entwistle’s labor cost is within 

[* * *]% of [this] average and [* * *]% of its total price,” the Agency considered 

Entwistle’s labor cost “reasonable.” Id. Plaintiff does not raise any specific arguments 

concerning the Agency’s evaluation of Entwistle’s labor cost per unit. 

48 The court does not know what comparative calculation the Agency employed to reach 

the conclusion that certain offerors’ hours were “within 7% of each other.” Cf. AR 1907 

(SSDD).

49 The Agency excluded [* * *] in calculating “the average proposed labor cost” because 

[* * *]’s “labor cost and price far exceeds the other six offerors.” Id. 

 
Plaintiff contends that the Agency’s comparison of “the offerors’ labor hours for 

proposed FAT and first year production . . . was based on irrational assumptions and 

critical miscalculations that fail[ed] to consider the offerors’ unique methods of 

performance.” Pl.’s Mot. 28; see Pl.’s Resp. 13 (stating that, despite the Agency’s 

recognition of “how low Entwistle’s unit labor cost appears when compared to other 

offerors, the Agency fails to consider why the hours are lower, or whether its comparison 

to other offerors was on equal footing”). Plaintiff contends that, in reaching its 

conclusion that Entwistle’s proposed labor hours were realistic, the Agency irrationally 

assumed “that it was comparing apples to apples.” Pl.’s Mot. 28. Specifically, plaintiff 

contends that the Agency made the following irrational assumptions: (1) that all of the 

offerors were proposing the same categories of labor, (2) that analyzing offerors’ first 

year production and FAT unit labor hours combined “was a valid period for comparison 

among offerors,” and (3) that all of the offerors included fabrication hours for the frame 

in their proposals. See id. at 31. 

As to the first alleged irrational assumption, plaintiff contends that “the total 

[labor] hours proposed by each offeror reflect different categories of work,” and argues 

that the Agency’s understanding that it was “comparing apples to apples . . . was an 

irrational assumption.” Id. at 30. As an illustration, plaintiff points to the approaches 

employed by Entwistle and Mil-Mar. Id. Mil-Mar’s labor hours are divided into the 

following three categories: production, program management/engineering and quality, 

AR 1128 (Mil-Mar’s Attachment 16), whereas Entwistle’s labor hours are divided into 

the following four categories: machining, welding, assembly and engineering, AR 1658

(Entwistle’s Attachment 16). Plaintiff further contends that a “[r]eview of the other 

offerors’ Attachment 16’s reveals that the other offerors also proposed labor categories in 

different manners.” Pl.’s Mot. 30. 

Defendant does not dispute that the offerors categorized their labor hours 

differently but argues that “there is no indication in the record that the agency was under 

the impression that all offerors were categorizing labor hours similarly.” Def.’s Mot. 39. 

The court agrees. The Solicitation required offerors to “include the total proposed direct 

labor hours . . . broken down by proposed labor category.” AR 265 (RFP). The 

Solicitation did not specify what types of labor categories the offerors should list, see id.,

and the offerors’ proposals accordingly reflected a variety of labor categorizations for 

production, see, e.g., AR 1128 (Mil-Mar’s Attachment 16) (dividing labor hours into the 

following categories: production, program management/engineering and quality); AR 

1658 (Entwistle’s Attachment 16) (dividing labor hours into the following categories: 

machining, welding, assembly and engineering); AR 3521 ([* * *]’s Attachment 16)

(dividing labor hours into the following categories: shop, administrative and 

engineering); AR 3720 ([* * *]’s Attachment 16) (dividing labor hours into the following 

categories: welder, prep, senior welder, assembler, senior assembler, washer, prime/ 

paint). The court finds that the Agency did not “fail[] to consider an important aspect of 
the problem,” cf. Ala. Aircraft, 586 F.3d at 1376 (internal quotation marks omitted), and 

that the Agency’s comparison of the offerors’ different types of labor hours was 

reasonable, cf. Ceres, 97 Fed. Cl. at 303 (“The Court’s review of the agency’s [price 

realism] analysis is limited to determining whether the evaluation was reasonable and 

consistent with the solicitation’s evaluation criteria.”). The court will therefore not 

substitute its judgment for that of the Agency. Cf. State Farm, 463 U.S. at 43 (stating that 

“a court is not to substitute its judgment for that of the agency” under the “narrow” APA 

standard of review). 

Regarding the second alleged irrational assumption, plaintiff argues that 

combining FAT and first year production hours fails to take into account each offeror’s 

approach and “makes Entwistle look less out of sync with Mil-Mar.” Pl.’s Mot. 30. 

Plaintiff contends that Entwistle “had to factor in significant engineering time for the 

FAT units, as it has never designed or produced a Hippo.” Id. Plaintiff points out that 

Mil-Mar’s proposal dedicated approximately [* * *] labor hours to FAT units, whereas 

Entwistle’s proposal dedicated [* * *] labor hours to FAT units. Id.; see AR 1658 

(Entwistle’s Attachment 16); AR 1128 (Mil-Mar’s Attachment 16). Plaintiff alleges that 

“the Agency failed to consider the fact that Entwistle’s FAT labor hours were 

significantly higher than its first year . . . production labor hours” and “whether Entwistle 

had proposed sufficient labor to actually manufacture the Hippos over the life of the 

contract (subsequent to FAT production).” Pl.’s Resp. 15. 

As defendant suggests, see Def.’s Mot. 39, the Solicitation did not require the 

Agency to compare the offerors’ first-year hours alone or FAT unit hours alone. Such 

matters are entirely within the Agency’s discretion, cf. Afghan Am., 90 Fed. Cl. at 358 

(“[T]he nature and extent of a price realism analysis is ultimately within the sound 

exercise of the agency’s discretion, unless the agency commits itself to a particular 

methodology in a solicitation.”), and plaintiff has failed to establish that, by comparing 

the offerors’ combined first year production hours and FAT hours, the Agency made an 

“irrational assumption[],” cf. id. (internal quotation marks omitted). Nor does the court 

find that the Agency “failed to consider an important aspect of the problem.” Cf. Ala. 

Aircraft, 586 F.3d at 1376 (internal quotation marks omitted).50 

50 Moreover, where a particular evaluation suggested by the plaintiff is not required by 

the Solicitation, the remedy is not, as plaintiff seeks here, to set aside the agency’s evaluation, 

but rather to contest the terms of the solicitation. See Blue & Gold, 492 F.3d at 1313 (“[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 subsequently in a bid protest action in the [United States] Court of Federal 

Claims.”). Plaintiff failed to contest the terms of the Solicitation, and its opportunity to do so has 

passed. Cf. id.

 
With respect to the third alleged irrational assumption, plaintiff argues that the 

Agency “should have known that the offerors’ proposed labor hours for FAT and first 

year production would not be comparable,” Pl.’s Mot. 29, because two of the offerors 

([* * *] and Entwistle) planned to build the frame and buy the tank, [* * *] planned to 

build both the frame and the tank, and four of the offerors ([* * *], [* * *], [* * *] and 

Mil-Mar) planned to buy both the frame and the tank, see id.; supra note 42. Plaintiff 

contends that “the production hours for 4 of the offerors used by the Agency to justify 

Entwistle’s labor hours do not include production hours associated with the tank or the 

ISO frame being purchased (these hours are already included in the part’s price).” Pl.’s 

Mot. 29; see Pl.’s Resp. 14 (claiming that the Agency failed to “account for differences in 

technical approach, e.g.[,] the effect that buying larger items would have on an offeror’s 

labor hours”).51 Plaintiff argues that “Entwistle’s total [labor] hours, which already 

include the hours to make the ISO frame, are . . . significantly lower than any of the four 

other offerors who are buying the tank and ISO frame rather than making it.” Pl.’s Mot.

30.

Defendant counters that there is no evidence that in its “comparison of offerors’ 

labor hours” the Agency assumed “that offerors’ approaches were identical.” Def.’s Mot. 

39; see id. at 40 (claiming that all of plaintiff’s arguments regarding labor hours are 

“based upon a false factual predicate: the notion that the agency actually made the 

assumptions attributed to it by Mil-Mar”). To the contrary, defendant claims that “the 

agency was well aware that offerors proposed different technical approaches, and 

different allocations of labor between themselves and subcontractors.” Id. at 39. As 

support, defendant cites to the Final Price Evaluation, see id. (citing AR 1838-41 (Final 

PER)), in which the Agency details the different approaches of the offerors, see AR 

1838-41 (Final PER) (describing the Agency’s evaluation of each offeror and noting, for 

example, that both Entwistle and [* * *] were purchasing tanks and fabricating the frames 

and that [* * *] was fabricating both the tank and frame); accord AR 1787 (Entwistle 

PER) (stating that, because Mil-Mar had purchased the water tank as a framed unit, and 

because Entwistle planned to purchase the water tank and build the frame, the Agency 

51 Plaintiff contends that, if the Agency were to consider the number of labor hours 

necessary to manufacture a frame under Mil-Mar’s specifications, Mil-Mar’s labor hours would 

actually be closer to [* * *]. See Pl.’s Mot. 29-30 (asserting that the Agency would have to add 

approximately [* * *] hours to Mil-Mar’s labor hours to make the labor hour estimates of MilMar and Entwistle comparable). Plaintiff reaches this conclusion by multiplying “[* * *] labor 

hours”--the number of hours that, plaintiff claims, it takes to build a frame--by 371, the sum of 

the six First Article Test (FAT) units and 311 first year production units. See id. n.2; see also id.

at 26 (claiming, without citation, that Mil-Mar estimates that “it takes [* * *] hours to fabricate 

the ISO frame” (emphasis omitted)). The court does not consider plaintiff’s unsupported factual 

contention regarding the [* * *] hours allegedly estimated by Mil-Mar to fabricate an ISO frame. 

See supra note 45. Nor does the court consider plaintiff’s allegation regarding the [* * *] labor 

hours because it is also based on plaintiff’s unsupported factual contention. 

 
considered impossible “an ‘apples to apples’ comparison between the [historical price of 

the water tank/frame] and the [water] tank that Entwistle is offering”). Plaintiff concedes 

that “the Agency may have been aware of the offerors’ different technical approaches,” 

but argues that the record does not suggest that the Agency “took that information into 

consideration when it compared the offerors’ labor hours, or that it ever considered the 

effect these differences would have on an offeror’s proposed labor hours.” Pl.’s Resp.

14. 

Plaintiff further contends that “[n]othing in the Record indicates that the Agency 

was conducting a ‘rough check’” by comparing the offerors’ total labor hours, id. at 15, 

and that, “even as a ‘rough check,’” the Agency’s “comparison of total labor hours for 

FAT and first year production is so inherently based on mistaken assumptions that . . . it 

cannot have a reasonable basis,” id. at 16; cf. Def.’s Mot. 39 (arguing that the Agency’s 

comparison of offerors’ labor hours may have served “simply as a rough check of 

reasonableness”). The court agrees that the record does not indicate that the Agency 

considered the fact that total labor hours of Entwistle and [* * *] included hours 

dedicated to the manufacture of the frame whereas the total labor hours of [* * *], [* * *],

[* * *] and Mil-Mar did not.52 Therefore, whether the Agency made an “irrational 

assumption[]” when it compared the offerors’ total labor hours is a close call. Cf. Afghan 

Am., 90 Fed. Cl. at 358 (internal quotation marks omitted). 

However, the Agency’s comparison of Entwistle’s combined FAT and first year 

production labor hours to those of the other offerors was only one component of the 

Agency’s price realism analysis of Entwistle’s labor hour estimate. The Agency also had 

TARDEC review Entwistle’s labor hours. As discussed above, see supra Part III.D.2, 

based on the review by TARDEC engineer Catherine Thomas, the Agency found “no 

basis to question” the [* * *] labor hours Entwistle allocated to fabricating the ISO frame, 

AR 1907 (SSDD); cf. AR 1868 (Aug. 29, 2012 e-mail) (indicating that TARDEC could 

not “conclude that an offeror with [[* * *] labor hours would] not be able to successfully 

perform and meet the solicitation requirements”). With respect to the number of hours 

Entwistle allocated to the FAT units, the Agency found that “TARDEC’s assessment . . . 

gave credence to [Entwistle’s] projected first article labor hours.” AR 1907 (SSDD). 

This assessment is supported by the Memorandum for Record, which states that 

“TARDEC has reviewed the direct labor hours proposed for the production of [FAT] 

units . . . and believes the total sum of hours is plausible for an effort of such scope and 

magnitude.”53 AR 1869 (MFR). The Agency also addressed Entwistle’s response to the 

52 The court notes that an “apples to apples” comparison can in fact be accomplished by 

comparing Entwistle’s total labor hours ([* * *]) to those of [* * *] ([* * *]), the other offeror that 

planned to manufacture a frame. See AR 1906 (SSDD). These two figures are within 

approximately [* * *]% of each other. 

53 Plaintiff contends “the Government offered nothing in the Record to reflect any 

assessment by TARDEC of Entwistle’s proposed FAT labor hours; it only addressed production 

 
fourth request for clarification, in which Entwistle explained that it applied a factor to its 

first year production hours to estimate its FAT hours. See AR 1907 (SSDD). Moreover, 

the Agency’s price realism analysis of Entwistle’s labor hour estimate was only one 

component of the Agency’s overall price realism analysis. See supra Parts III.D.1-2 

(discussing the other components of the Agency’s price realism analysis). Based on the 

foregoing, and noting the fact that this procurement involves a fixed-priced contract, the 

court is not persuaded that the Agency’s comparison of Entwistle’s total labor hours to 

those of the four offerors who planned to purchase the frame warrants disrupting the 

contract award to Entwistle. Cf. Ceres, 97 Fed. Cl. at 307-08 (finding that an alleged 

flaw in the agency’s price realism analysis did “not warrant disrupting the [contract] 

award[],” given, among other reasons, the discretion afforded to an agency’s price 

realism analysis and the fact that the contract at issue was a fixed-price contract). 

“[G]iven the deference to be afforded the agency in price realism assessments and 

the agency’s willingness to assume risk,” Ceres, 97 Fed. Cl. at 308; cf. AR 1786 

(Entwistle PER) (observing that “utilizing a firm-fixed price contractual 

instrument . . . mitigates the Government’s risk”), the court finds that the Agency’s price 

realism analysis of the labor hours was reasonable and had a rational basis.

E. The Agency’s Best Value Trade-Off Analysis Was Rationally Based and 

Consistent with the Solicitation’s Evaluation Scheme

As discussed above, see supra Part I.A.2 (addressing Section M of the 

Solicitation), the Solicitation stated that the SSA would evaluate proposals “using a tradeoff process to determine which proposal provides the most advantageous and realistic 

proposal (i.e.[,] best value) considering the three factors: 1) Production Capability, 2) 

Experience, and 3) Price,” AR 276 (RFP). “[I]n selecting the offer which is most 

advantageous and represents the best value to the Government,” the SSA would consider 

the total evaluated price and “the relative strengths/weaknesses and risks of each 

Offeror’s proposal in the non-price factors.” Id. The Solicitation provided that the most 

important factor was Production Capability, which was slightly more important than 

Experience, and that Experience was slightly more important than Price. Id. at 277. 

When combined, the non-price factors were considered more important than price. Id. at 

278. The Solicitation further provided that “the closer the Offerors’ evaluations are in the 

hours.” Pl.’s Resp. 14 (citing AR 1868 (Aug. 29, 2012 e-mail from TARDEC engineer 

Catherine Thomas to contracting officer Yvette Thompson)). As the court noted above in Part 

III.D.2, the Memorandum for Record (MFR) is signed by Christopher Bensch (Mr. Bensch), 

himself a TARDEC engineer. See AR 1870 (MFR); AR 2674 (Acquisition Plan) (identifying 

Mr. Bensch as a system engineer for TARDEC); supra Part III.D.2. The court finds no reason to 

doubt Mr. Bensch’s statement that TARDEC reviewed and found plausible Entwistle’s proposed 

FAT labor hours. Cf. Part III.D.2 (finding no reason to doubt Mr. Bensch’s statement that 

TARDEC reviewed and found plausible Entwistle’s estimate of the materials cost of the frame). 

 
non-price factors, the more important price becomes in the decision.” Id. at 277. 

Moreover, “[n]otwithstanding the relative order of importance of the evaluation factors as 

stated,” the Solicitation provided that “price may be controlling when . . . [t]he 

advantages of a higher rated, higher price[d] proposal are not considered to be worth the 

price premium.” Id. 

A best value “tradeoff process” allows “the Government to consider award to 

other than the lowest priced offeror or other than the highest technically rated offeror.” 

FAR 15.101–1(a). “[I]n a best-value procurement, the agency may decide to select a 

lower-technically-rated proposal--even if the solicitation emphasizes the importance of 

technical merit--if it decides that the higher price of a higher-technically-rated proposal is 

not justified.” Afghan Am., 90 Fed. Cl. at 360 (internal quotation marks omitted); see

Serco Inc. v. United States, 81 Fed. Cl. 463, 496 (2008) (“Even where . . . a solicitation 

provides that technical criteria are more important than price, an agency must select a 

lower-priced, lower technically scored proposal if it reasonably decides that the premium 

associated with selecting the higher-rated proposal is unwarranted.”). “In determining 

which proposal represents the best value, the government must compare the relative costs 

and benefits of the competing proposals, including both price and non-price factors . . . .” 

FirstLine Transp. Sec., Inc. v. United States (FirstLine), 100 Fed. Cl. 359, 374 (2011)

(citing FAR 15.101-1(c)). Moreover, the government must evaluate proposals and 

“assess their relative qualities solely on the factors and subfactors specified in the 

solicitation.” FAR 15.305(a). 

It is the SSA’s responsibility to select the proposal that represents the best value to 

the agency. FirstLine, 100 Fed. Cl. at 382 (citing FAR 15.303(b)(6)). The SSA’s best 

value determination is governed by FAR 15.308, which provides in full: 

The [SSA’s] decision shall be based on a comparative assessment of 

proposals against all source selection criteria in the solicitation. While the 

SSA may use reports and analyses prepared by others, the source selection 

decision shall represent the SSA’s independent judgment. The source 

selection decision shall be documented, and the documentation shall 

include the rationale for any business judgments and tradeoffs made or 

relied on by the SSA, including benefits associated with additional costs. 

Although the rationale for the selection decision must be documented, that 

documentation need not quantify the tradeoffs that led to the decision.

FAR 15.308. This court has found that FAR 15.308 embodies two main requirements. 

FirstLine, 100 Fed. Cl. at 382; accord One Largo, 109 Fed. Cl. at 95 (same).

First, FAR 15.308 requires the SSA to “reach an independent award decision 

based on a comparative assessment of proposals against all of the criteria set forth in the 

solicitation.” FirstLine, 100 Fed. Cl. at 382. When assessing differences between 
proposals, the SSA should take into consideration not only the proposals’ adjectival 

ratings but also information on advantages and disadvantages of the proposals. Femme 

Comp Inc. v. United States (Femme), 83 Fed. Cl. 704, 758 (2008). “Looking beyond the 

adjectival ratings is necessary because proposals with the same adjectival ratings are not 

necessarily of equal quality.” Id. (alteration and internal quotation marks omitted). 

Second, FAR 15.308 requires the SSA to “document its independent award 

decision.” FirstLine, 100 Fed. Cl. at 382. “‘Conclusory statements, devoid of any 

substantive content, . . . fall short of’ this documentation requirement.” Femme, 83 Fed. 

Cl. at 758 (omission in original) (quoting Serco Inc., 81 Fed. Cl. at 497); see One Largo, 

109 Fed. Cl. at 95 (“To be well-documented, the source selection decision must contain 

more than conclusory and generalized statements.” (internal quotation marks omitted)). 

Thus, the SSA must “do more than simply parrot back the strengths and weaknesses of 

the competing proposals.” Serco Inc., 81 Fed. Cl. at 497. Although the SSA “need not 

quantify the tradeoffs that led to” his best value determination, FAR 15.308, “this is not 

to say that the magnitude of the price differential between the two offers is irrelevant--

logic suggests that as that magnitude increases, the relative benefits yielded by the 

higher-priced offer must also increase,” Serco Inc., 81 Fed. Cl. at 497. That is, the SSA 

should not “minimize the potential impact of price” and is cautioned against “mak[ing] a 

nominal technical advantage essentially determinative, irrespective of an overwhelming 

price premium.” Id. (alteration and internal quotation marks omitted). 

“[A] plaintiff bears a significant burden to demonstrate error in the [SSA’s] tradeoff analysis, because procurement officials have a very high degree of discretion when it 

comes to best value determinations.” One Largo, 109 Fed. Cl. at 96; see E.W. Bliss Co., 

77 F.3d at 449 (“Procurement officials have substantial discretion to determine which 

proposal represents the best value for the government.”); PlanetSpace Inc., 96 Fed. Cl. at 

125 (“An agency’s contract award is . . . least vulnerable to challenge when based upon a 

best value determination.” (citing Galen, 369 F.3d at 1330)). Agencies are accorded “a 

high degree of discretion in best value determinations because it is necessarily a 

subjective process.” One Largo, 109 Fed. Cl. at 96. Therefore, “[t]he Court will not 

disturb a best-value award so long as the agency documents its final award decision and 

includes the rationale for any business judgments and tradeoffs made.” Afghan Am., 90 

Fed. Cl. at 360 (internal quotation marks omitted); see One Largo, 109 Fed. Cl. at 97

(stating that because a best value determination “involves layers of decision-making and 

judgment calls regarding which proposals offer the overall highest technical merit, and 

what technical advantages are worth a higher price[,] [t]he court is reluctant to second 

guess” this determination). However, if “a procurement decision is without a rational 

basis or is based upon a clear violation of law, that decision must be set aside.” FirstLine, 

100 Fed. Cl. at 376. 

Pursuant to the Solicitation and FAR 15.308, the SSA conducted a comparative 

assessment of Entwistle’s proposal against each of the other offerors’ proposals. See AR 
1880-1905 (SSDD). The SSA stated that he “compared the proposals utilizing a ‘tradeoff’ process, giving appropriate consideration to the evaluation criteria set forth in the 

RFP and their relative importance.” Id. at 1878. Based on these comparisons, the SSA 

determined that Entwistle’s proposal represented the best value to the Agency and that, 

accordingly, award should be made to Entwistle. Id. at 1908. 

In his comparison of the proposals of Entwistle and Mil-Mar, the SSA found that 

Mil-Mar’s proposal was “more advantageous” than Entwistle’s proposal in the two nonprice factors. Id. at 1900; see also id. (“Clearly, Mil-Mar has advantages in the two most 

important factors when compared to Entwistle.”). However, the SSA concluded that 

Entwistle’s proposal represented a “better value” to the Agency. Id. The SSA reasoned 

that “despite the Non-Price Factors being more important than the Price Factor[,] the 

advantages offered by Mil-Mar in the Production Capability and Experience factors are, 

simply stated, not worth the payment of a $[* * *] or [* * *]% premium in price.” Id. 

Notwithstanding the fact that “the Entwistle proposal has more risk than Mil-Mar’s and 

fewer advantages with respect to the Non-Price Factors,” the SSA found that Entwistle 

“has the capacity to provide for timely delivery of supplies in satisfaction of contract 

requirements and that it will successfully meet contract requirements based upon its prior 

experience.” Id. at 1900-01. 

Plaintiff contends that “the best value analysis performed by the SSA was both 

irrational and inconsistent with the evaluation scheme set forth in the RFP.” Pl.’s Mot. 

32. Specifically, plaintiff argues that “the SSA failed to perform a comparative analysis

of the proposals,” id. (capitalization and emphasis omitted), the SSA “violated the 

documentation requirement of FAR [] 15.308,” id. at 34, and “the SSA’s best value tradeoff was inconsistent with the Solicitation’s factor weighting scheme,” id. at 35 

(capitalization and emphasis omitted). 

Defendant counters that “[t]he SSA thoroughly compared Entwistle’s proposal to 

that of every other offeror with respect to each of the three evaluation factors before 

concluding, entirely reasonably, that Entwistle offered the best value to the Government.” 

Def.’s Mot. 40. According to defendant, “[t]he SSA’s determination that the lower risk 

presented by Mil-Mar’s proposal simply did not justify the payment of an additional 

$[* * *] is a quintessential business judgment, one entrusted to the agency’s discretion.” 

Id. at 43; see also id. at 40 (“The agency rationally and permissibly concluded and 

adequately explained that the benefits offered by Mil-Mar did not warrant payment of a 

[* * *]% price premium[.]” (capitalization and emphasis omitted)). Defendant argues 

that plaintiff “falls far short of the threshold that must be cleared in order to demonstrate 

that a best-value analysis was arbitrary and capricious.” Id. at 41. 

The court now provides a summary of the SSA’s comparative assessment of the 

proposals submitted by Entwistle, the lowest-priced offeror, and Mil-Mar, the highestrated offeror, and then addresses the parties’ arguments. For the reasons stated, the court 
finds that the Agency’s best value trade-off analysis had a rational basis and was 

consistent with the Solicitation’s evaluation scheme.

 1. The SSA’s Comparative Assessment of the Proposals Submitted by 

Entwistle and Mil-Mar

In making his best value determination, the SSA “considered and relied upon” the 

SSEB’s adjectival ratings and final evaluations of the proposals. AR 1878 (SSDD). A 

chart summarizing the adjectival ratings assigned to Entwistle and Mil-Mar for the two 

non-price factors and their respective considerations, along with their total evaluated 

prices, is below: 

Factors and Considerations Entwistle Mil-Mar

Production Capability Good Outstanding

Manufacturing Facilities Moderate Risk Very Low Risk

Key Tooling and Equipment Low Risk Very Low Risk

Production Approach Very Low Risk Very Low Risk

Time Phased Critical Path Very Low Risk Moderate Risk

Letters of Commitment Very Low Risk Very Low Risk

Experience Relevant Very Relevant

Comparable Items Very Low Risk Very Low Risk

Technical Manuals Moderate Risk Very Low Risk

Delivery Moderate Risk Very Low Risk

Low Temp Requirement Low Risk Very Low Risk

Welding Moderate Risk Very Low Risk

Price $69,063,943 $[* * *]

See AR 1879 (SSDD) (identifying evaluation considerations for the two non-price factors 

and summarizing the SSEB’s evaluations); AR 1737, 1744 (Mil-Mar’s Final Evaluation 

Report); AR 1755, 1763 (Entwistle’s Final Evaluation Report). The SSA stated that that 

he “agree[d] with the assessments of the SSEB” and that his best value determination 

“represent[ed] [his] independent judgment.” AR 1878 (SSDD). The SSA also stated that 

his “comparative assessment . . . summarizes the rationale for [his] business judgments 

and the tradeoffs made in [his] decision.” Id. The SSA’s comparative assessment of 

Entwistle against each offeror, including Mil-Mar, consisted of comparisons made under 

each of the three factors--Production Capability, Experience and Price--and a concluding 

section in which the SSA further explained his best value determination. See id. at 1880-

1905.

In his comparison of the proposals of Entwistle and Mil-Mar regarding the

Production Capability factor, the SSA concluded that Mil-Mar’s proposal was “more 

advantageous and . . . provide[d] a slightly lower risk of unsuccessful performance 
than . . . Entwistle[’s] proposal.” Id. at 1898. The SSA therefore rated Mil-Mar’s

proposal as outstanding and Entwistle’s proposal as good. Id. In reaching this 

conclusion, the SSA addressed the ratings both offerors received by the SSEB for each of 

the five considerations associated with the Production Capability factor (manufacturing 

facilities, key tooling and equipment, production approach, time phased critical path and 

letters of commitment) and explained why he agreed with each rating. See id. at 1897-

98. For example, the SSA provided the following comparative assessment of Entwistle’s 

and Mil-Mar’s proposals with respect to the manufacturing facilities and time phased 

critical path considerations: 

Regarding the Manufacturing Facility consideration, Entwistle’s proposal 

provided sufficient information regarding existing manufacturing facilities, 

including dimensions, to provide confidence that it has the manufacturing 

facilities to provide for timely delivery of supplies. Although a moderate 

risk was ascribed to Entwistle’s proposal because it lacked information 

regarding the lead-time needed to convert a paint booth into a passivation 

booth, I have determined that the risk attributable to that lack of 

information can be easily mitigated as explained in more detail above in the 

Entwistle and [* * *] comparison.54 Mil-Mar’s proposal is very low risk 

54 In his comparative assessment of the proposals submitted by Entwistle and [* * *], the 

SSA discussed in more detail the moderate risk rating assigned to Entwistle as a result of 

Entwistle’s failure to provide information “regarding the lead-time needed to convert a paint 

booth into a passivation booth”:

In properly assessing [Entwistle’s] risk and its mitigation, I consulted with the 

systems engineer for a similar water tank system, the systems engineer for a water 

packaging system, and with subject matter experts from TARDEC’s Center for 

Ground Vehicle Development and Integration. . . . First, per the purchase 

description, only the inside (wetted surfaces) of the HIPPO must be passivated, 

and passivation is to be done by treatment with an acid solution. The system 

engineer for a similar water tank system informed me that the inside of that tank 

is passivated by pumping an acid solution into the tank, then back into a holding 

tank. Further, the systems engineer for a water packaging system shared pictures 

and video of a water tank passivation process. In this case, a worker donned 

appropriate personal protective equipment and sprayed the inside of the tank. 

This was done not in a paint booth, but in an open bay. Second, passivation can 

be done with citric or nitric acid. If citric acid is used, no special ventilation is 

required. If nitric acid is used, the ventilation system must be capable of handling 

acidic vapors, which requires polyvinyl chloride (PVC) or polypropylene duct 

work and acid scrubbers. There are several types of scrubbers, and a simple 

water-fed plate scrubber is suitable. 

 
because it provides for use of current HIPPO production facilities and the 

use of Mil-Mar’s current subcontractor for the tank and ISO frame.

. . . .

Regarding the Time Phased Critical Path (TPCP) consideration, Entwistle’s 

very low risk TPCP addressed all of the seven milestones specified in the 

RFP. The company’s TPCP also included risk identification and mitigation 

concerning the required establishment of a [* * *] and timely performance 

of required [* * *]. On the other hand, Mil-Mar’s proposal is assessed as 

[* * *].

Id. (footnote added). Based on his comparative assessment of each of the five

considerations, the SSA concluded that, although Entwistle’s risks were low and he had 

“confidence that Entwistle ha[d] the capacity to provide for timely delivery of supplies,” 

Mil-Mar had the “advantage in the most important Factor” because Mil-Mar was “using 

the proposed production facilities for the current HIPPO production contract, has 

sufficient tooling and equipment, and has a strong supplier base.” Id. at 1898.

In his comparative assessment of the Experience factor, the SSA found “MilMar’s Very Relevant Experience Factor proposal, which included advantages stemming 

in large part from its experience in producing the current configuration of the HIPPO, to 

be more advantageous and lower in risk than Entwistle’s Relevant Experience Factor 

proposal, which include[d] risks in technical manual, delivery and welding experience.” 

Id. at 1900. In reaching this conclusion, the SSA addressed the ratings both offerors 

received from the SSEB for each of the five considerations associated with the 

Experience factor (comparable items, technical manuals, delivery, low temperature 

requirement and welding) and explained why he agreed with each rating. See id. at 1899-

00. For example, the SSA provided the following comparative assessment of Entwistle’s 

and Mil-Mar’s proposals with respect to the comparable items and welding

considerations: 

Regarding Comparable Items, the proposals from both offerors are assessed 

as providing a very low risk based on experience gained on contracts cited 

in their respective proposals in supplying sanitary liquid handling and 

storage systems of a complexity comparable to the HIPPO. The risk 

assessment assigned to Entwistle is based on the combined experience 

gained by that company and its identified subcontractor from the five 

contracts cited in its proposal. The production efforts collectively involve 

the major elements of a sanitary liquid handling and storage system similar 

AR 1880 (SSDD). Based on these considerations, the SSA found that Entwistle’s [* * *] 

“should require minor modifications and modest capital investment,” and that “the 

moderate risk of Entwistle’s proposal [could] be easily mitigated.” Id.

 
to those required by the HIPPO, including stainless steel potable water 

tanks, as well as plumbing systems comprised of tanks, pumps, hoses, 

valves, and fittings and designed to convey both potable and non-potable 

water, and skid-based platform with frame. I further agree with this very 

low risk assessment because experience with the major elements of a 

HIPPO system is a larger risk mitigator than the experience with integration 

of the elements into a complete system. Similarly, Mil-Mar’s proposal is 

very low risk because the contracts cited in the proposal involve the 

production of end items nearly identical to the end items to be procured 

pursuant to the proposed contract. While the proposals from both Mil-Mar 

and Entwistle were assessed as very low risk, I find the Mil-Mar proposal 

to be slightly more advantageous where its experience is essentially 

identical to the HIPPO.

. . . .

Regarding Welding Stainless Steel, Entwistle’s proposal is moderate risk 

because it provided experience for welding in two of the contracts cited in 

the proposal, although the referenced welding was to requirements 

somewhat different than the HIPPO’s [American Welding Society (AWS)]

D18.3/18.3M requirement. In comparison, Mil-Mar’s very low risk 

proposal provides an advantage with respect to this consideration in that 

two of the five contracts cited by Mil-Mar provide experience in welding 

stainless steel in compliance with AWS D18.3/18.3M.

Id.; cf. supra Part III.B.2 (discussing the SSEB’s evaluation of Entwistle’s experience). 

In his comparative assessment of the Price factor, the SSA simply concluded that 

Entwistle’s proposal was “significantly more advantageous” than that of Mil-Mar, 

“where Mil-Mar’s total evaluated price of $[* * *] is $[* * *] or [* * *]% higher than 

Entwistle’s total evaluated price of $69,063,943.” AR 1900 (SSDD). 

The SSA’s comparative assessment of the proposals of Entwistle and Mil-Mar 

concluded with a two-paragraph explanation of why the SSA considered Entwistle’s 

proposal to be a better value to the Agency. See id. at 1900-01. The SSA first noted that 

Section M of the Solicitation provided that “price may be controlling when the

advantages of a higher rated, higher price proposal are not considered to be worth the 

price premium.” Id. (alteration and internal quotation marks omitted); cf. supra Part I.A.2 

(discussing Section M of the Solicitation). The SSA considered this to be “the case 

here,” stating that “[it] is well worth it to the Government to pay over $[* * *] less for 

Entwistle’s proposal.” AR 1900 (SSDD); see id. (stating that “the advantages offered by 

Mil-Mar in the Production Capability and Experience factors are, simply stated, not 

worth the payment of a $[* * *] or [* * *]% premium in price”). The SSA further stated 
that although Entwistle’s proposal offers fewer advantages under the two non-price 

factors and has more risk associated with it than Mil-Mar’s, “Entwistle still gives the 

Government confidence that it has the capacity to provide for timely delivery of supplies 

in satisfaction of contract requirements and that it will successfully meet contract 

requirements based upon its prior experience.” Id. at 1900-01.

The SSA then summarized his findings with respect to the two non-price factors. 

Under the Production Capability factor, the SSA observed that Mil-Mar “[c]learly” 

offered the Agency “more advantages . . . because it is the current producer of the 

HIPPO” but found that these advantages did “not significantly outweigh the advantages 

provided by Entwistle’s low risk proposal.” Id. at 1901. The SSA also stated that he had 

confidence in Entwistle’s “low risk Production Capability proposal” because “Entwistle 

has shown that it has the manufacturing facilities, the key tooling and equipment, the 

production approach, the time phased critical path, and the letter[s] of commitment.” Id.

As to the Experience factor, the SSA found that “[t]he advantages in Mil-Mar’s 

favor in the Experience factor are greater than in the Production Capability factor” and 

that “Mil-Mar’s experience as the current producer of HIPPOs results in less risk to the 

Government.” Id. However, the SSA did not consider Mil-Mar’s advantages in the 

Experience factor to be “overwhelming.” Id. The SSA then described his findings with 

respect to Entwistle’s experience, which, according to the SSA, gave him “confidence 

that [Entwistle could] successfully perform the effort.” Id. The SSA noted that [* * *]

had experience delivering items “at rates approaching 35 per month,” that Entwistle 

“ha[d] experience with the comparable items and the low temperature requirement 

considerations” and that Entwistle had “some experience” with the welding and technical 

manual considerations. Id. The SSA further noted that, “[w]here Entwistle did have 

applicable experience, it entailed situations that involved many of the same requirements 

as the HIPPO [technical manual] requirements, including [technical manual] content on 

addressing maintenance, operation and illustrated parts breakdowns.” Id.

Based on the foregoing, the SSA concluded that “[t]he advantages provided by the 

Mil-Mar proposal in the Production Capability factor and in the Experience factor are not 

enough to overcome the $[* * *] in savings to the Government available from Entwistle’s 

proposal, which is still a low risk proposal.” Id. That is, the SSA found the [* * *]% 

price premium required by Mil-Mar’s proposal to be significant and did not find that the 

advantages of Mil-Mar’s proposal “outweigh[ed] the significant savings afforded to the 

Government by Entwistle’s low risk Production Capability proposal with its Relevant 

Experience rating. In other words, the differences between Mil-Mar’s very low risk 

proposal and Entwistle’s low risk proposal [were] not significant enough to justify such a 

price premium.” Id.

2. The SSA Performed an Adequate Comparative Assessment of the 

Proposals
Plaintiff first argues that, “[a]lthough the SSA mentioned the adjectival ratings, 

recited the facts that resulted in the weaknesses assessed to Entwistle’s proposal, and 

recited the strengths found in Mil-Mar’s proposal, he never actually conducted a true 

comparative analysis of the two proposals.” Pl.’s Mot. 33 (citing TRW, Inc., 68 Comp. 

Gen. 511 (1989))

55; cf. FAR 15.308 (requiring the SSA’s best value decision to “be based 

55 Plaintiff cites TRW, Inc., 68 Comp. Gen. 511 (1989), for the proposition that “it [is] 

not enough for the SSA to ‘consider’ that the offerors were evaluated as having certain strengths, 

the SSA [is] required to conduct a comparative analysis of the strengths to justify his 

cost/technical tradeoff decision,” Pl.’s Mot. 33. The court agrees with the substance of this 

proposition and finds in this section that the Agency did, in fact, conduct a comparative analysis 

of the strengths (and weaknesses) of the proposals submitted by Entwistle and Mil-Mar. The 

comparison conducted in TRW, Inc. is distinguishable from the comparison made in this case. 

TRW, Inc. involved a protest by TRW, Inc. (TRW), the highest-rated, higher-priced 

offeror, over the award of a contract by the United States Air Force (Air Force) to GTE, 

Government Systems Corporation (GTE), the lowest-rated and lowest-priced offeror. See TRW, 

Inc., 68 Comp. Gen. at 512-13. The RFP at issue “advised offerors that this was ‘a technical 

competition with cost considered subordinate to other factors.’” Id. at 512. Despite the fact that 

the technical evaluation team found that GTE “ha[d] significant technical deficiencies and [was] 

considered high risk for several items,” id. at 513 (internal quotation marks omitted), the SSA 

determined, “based upon an ‘integrated assessment,’” that GTE provided the best value to the 

government, id. at 514. Apart from listing several strengths associated with GTE’s technical 

proposal, the SSA did not provide any reasons for his best value determination. Id. Moreover, 

the SSA did not address “the more numerous” weaknesses associated with GTE’s technical 

proposal and “did not discuss the technical ratings of the other proposals, including TRW’s 

significantly superior . . . proposal.” Id.

The Comptroller General found that the SSA’s statement “that he made an ‘integrated 

assessment’ and that his decision considered technical risks and costs . . . f[e]ll far short of the 

requirement to justify cost/technical tradeoff decisions.” Id.; see id. at 515 (“[T]he source 

selection decision does not explain how GTE’s low cost offsets its relatively low technical and 

high risk ratings.”). The Comptroller General concluded that, in light of TRW’s “significant . . . 

technical superiority” and GTE’s weaknesses, “the absence of a justification [by the SSA] 

indicate[d] that no tradeoff analysis was made and that the Air Force effectively made cost more 

important than technical considerations, notwithstanding the RFP statement that technical factors 

were most important.” Id. at 514. 

Here, however, both the SSEB and the SSA found Entwistle’s proposal to be low risk and 

did not identify any significant technical deficiencies associated with Entwistle’s proposal. See

supra Part III.E.1. The SSEB and the SSA also addressed the weaknesses associated with 

Entwistle’s proposal and the strengths associated with Mil-Mar’s proposal. See supra Part 

III.E.1. Finally, the SSA explained his best value determination and justified his cost and 

technical tradeoff decision. See Part III.E.1-3.

 
on a comparative assessment of proposals against all source selection criteria in the 

solicitation”). According to plaintiff, the SSA’s trade-off analysis “fails to explain why 

the differences in the ratings assigned to the proposals were insignificant . . . [and] fails to 

explain why the numerous strengths assigned to Mil-Mar’s proposal were given 

negligible weight.” Pl.’s Mot. 34. Plaintiff contends that, without these explanations, 

“the SSA’s conclusion that Mil-Mar’s proposal was only ‘more advantageous’ than 

Entwistle’s proposal is arbitrary and capricious.” Id.

In support of its position, plaintiff points out that Mil-Mar was rated higher than 

Entwistle in both of the non-price factors and in six of the ten considerations. Pl.’s Mot. 

33. Plaintiff contends that the SSA merely recited the ratings and offered “conclusory 

statement[s]” about whether the ratings reflected an advantage or disadvantage. Pl.’s 

Resp. 17. According to plaintiff, this “demonstrates that the SSA failed to recognize the 

superiority of Mil-Mar’s proposal,” and supports plaintiff’s contention “that the SSA 

never conducted a true comparative analysis.” Id. Plaintiff also notes that the SSBB 

identified [* * *] strengths and [* * *] weakness in Mil-Mar’s proposal in comparison to 

the five strengths and four weaknesses identified in Entwistle’s proposal.56 See Pl.’s 

Mot. 33; cf. AR 1738, 1745 (Mil-Mar’s Final Evaluation Report); AR 1755-56, 1764 

(Entwistle’s Final Evaluation Report). Plaintiff argues that the SSA failed to discuss “the 

extent of the strengths in Mil-Mar’s proposal as compared to Entwistle’s proposal,” and 

failed to explain “why Mil-Mar’s strengths would not provide a meaningful benefit to the 

Government.” Pl.’s Mot. 33. 

Defendant counters, and the court agrees, that plaintiff’s “conclusory assertion that 

the SSA never actually conducted a true comparative analysis of Mil-Mar’s proposal and 

Entwistle’s cannot be reconciled with the SSA’s actual decision.” Def.’s Mot. 41 

(internal quotation marks omitted). The record supports that the SSA’s best value 

determination was “based on a comparative assessment of proposals against all source 

selection criteria in the solicitation.” Cf. FAR 15.308. As defendant correctly states, “the 

SSA reviewed each and every consideration relevant to the non-price evaluation factors, 

noted the rating given to each offeror as to that consideration, . . . explained the 

substantive basis for that rating,” and “explained which offeror was considered to offer a 

greater advantage to the Government and why.” See Def.’s Mot. 41; cf. supra Part III.E.1 

(discussing the SSA’s comparative assessment of the proposals submitted by Entwistle 

and Mil-Mar). The court also finds that the SSA discussed in detail the strengths and 

weaknesses of the proposals submitted by Entwistle and Mil-Mar and highlighted MilMar’s advantages and the benefits they would provide to the Agency. See supra Part 

III.E.1 (discussing the SSA’s comparative assessment of the proposals submitted by 

Entwistle and Mil-Mar); infra Part III.E.3 (finding that the SSA sufficiently documented 

his best value determination). That is, in his assessment of the differences between the 

two proposals submitted, the SSA considered not only the proposals’ adjectival ratings

56 [* * *]. 

 
but also the advantages and disadvantages associated with each of the proposals. Cf.

Femme, 83 Fed. Cl. at 758 (stating that, in addition to adjectival ratings, the SSA should 

consider information on advantage and disadvantages of the proposals in his evaluation). 

3. The SSA’s Best Value Trade-Off Analysis Was Sufficiently Documented

Plaintiff next argues that “the SSA’s best value analysis included ‘nothing more 

than a selective summary of the ratings, strengths, and weaknesses assigned to the 

proposals by lower-level evaluators,’” Pl.’s Mot. 34 (quoting FirstLine, 100 Fed. Cl. at 

380), and that, therefore, “the best value tradeoff was insufficiently documented, in 

violation of FAR 15.308,” id. at 34-35; cf. FAR 15.308 (“The source selection decision 

shall be documented, and the documentation shall include the rationale for any business 

judgments and tradeoffs made or relied on by the SSA, including benefits associated with 

additional costs.”). Although plaintiff concedes that the SSA discussed “whether the 

Agency should pay a ‘significantly’ higher price for a proposal it deemed only ‘more 

advantageous’ than Entwistle’s lower-priced proposal,” plaintiff contends that the SSA’s 

“analysis contains nothing more than conclusory assertions.” Pl.’s Mot. 34 (citing AR 

1900-01 (SSDD)); see also id. (“The SSA summarily concluded, without any real 

analysis of the benefits presented by Mil-Mar, that these technical benefits did not 

warrant the payment of the price premium.”).57 

Defendant counters that, notwithstanding plaintiff’s contentions to the contrary, 

“the bases for the SSA’s decision, and their reasonableness, are perfectly apparent from 

the decision document.” Def.’s Mot. 42; see also id. (“Mil-Mar’s complaints about the 

SSA’s documentation of his decision amount only to conclusory assertions that the 

documentation was insufficient, without any specific references to the decision itself.”). 

The court agrees. 

The court recognizes that “when selecting a low-price technically inferior proposal 

in a best-value procurement where non-price factors are more important than price, it is 

not sufficient for the [SSA] to simply state that a proposal’s technical superiority is not 

worth the payment of a price premium”; rather, the SSA “must explain specifically why it 

does not warrant a premium.” See FirstLine, 100 Fed. Cl. at 381; cf. Pl.’s Mot. 34 

(invoking this language). Here, the court finds that the SSA’s comparative assessment of 

57 Plaintiff also contends that “[w]hile the SSA may have considered the non-price 

factors and noted the ratings given to each offeror, he never explained why Entwistle offered a 

greater advantage to the Government other than its significantly low price.” Pl.’s Resp. 16-17. 

Defendant counters that “the SSA was not required to identify any other advantage presented by 

Entwistle other than its ‘significantly low price’[][because] the solicitation expressly provided 

that price could become ‘controlling when . . . [t]he advantages of a higher rated, higher price 

proposal are not considered to be worth the price premium.” Def.’s Reply 9 (second alteration 

and omission in original) (quoting AR 277 (RFP)). The court addresses this issue below. See

infra Part III.E.4. 

 
the proposals of Entwistle and Mil-Mar were not mere “[c]onclusory statements, devoid 

of any substantive content.” Cf. Serco Inc., 81 Fed. Cl. at 497. The record shows that the 

SSA adequately documented his business judgments and trade-offs and adequately 

explained why Mil-Mar’s technical advantages did not warrant payment of a $[* * *] 

price premium. See supra Part III.E.1-2 (discussing the SSA’s comparative assessment 

of the proposals submitted by Entwistle and Mil-Mar and finding it adequate). 

As defendant notes, the two technical factors “were intended to gauge the 

likelihood that each offeror would successfully perform the Hippo contract--or, phrased 

another way, the risk that each offeror would not successfully perform.” Def.’s Mot. 42. 

The SSA recognized and acknowlged both Mil-Mar’s technical advantages and the lower 

risk associated Mil-Mar’s proposal. See, e.g., AR 1898 (SSDD) (finding, under the 

Production Capability factor, that Mil-Mar’s proposal was “more advantageous and . . . 

slightly lower [in] risk” than Entwistle’s proposal because Mil-Mar was “using the 

proposed production facilities for the current HIPPO production contract, has sufficient 

tooling and equipment, and has a strong supplier base); id. at 1900 (finding, under the 

Experience factor, that Mil-Mar’s proposal was “more advantageous and lower in risk 

than Entwistle’s” proposal because Mil-Mar had “experience in producing the current 

configuration of the HIPPO”); see also supra Part III.E.2 (finding that SSA discussed in 

detail Mil-Mar’s strengths and highlighted Mil-Mar’s advantages and the benefits they 

would provide to the Agency). However, the SSA also explained that the difference in 

the risks between the two proposals was not significant enough to overcome the price 

premium, see AR 1901 (SSDD), and the court finds well-documented the SSA’s 

determination that Entwistle’s low risk proposal was the best value to the Agency, see

supra Part III.E.1 (discussing the SSA’s comparative assessment of the proposals 

submitted by Entwistle and Mil-Mar); see also supra Part III.E.2 (agreeing with defendant 

that “the SSA reviewed each and every consideration relevant to the non-price evaluation 

factors, noted the rating given to each offeror as to that consideration, . . . explained the 

substantive basis for that rating, and explained which offeror was considered to offer a 

greater advantage to the Government and why” (internal quotation marks omitted)).

4. The SSA’s Best Value Trade-Off Analysis Was Consistent with the 

Solicitation’s Factor Evaluation Scheme

Plaintiff’s final argument is that the Agency “converted this best value 

procurement into a technically acceptable, low-price procurement.”58 Pl.’s Mot. 35. 

58 In a lowest price technically acceptable procurement, “[p]roposals are evaluated for 

[technical] acceptability but not ranked using the non-cost/price factors.” FAR 15.101-2(b)(3). 

This type of procurement “is appropriate when best value is expected to result from selection of 

the technically acceptable proposal with the lowest evaluated price,” and “[t]radeoffs are not 

permitted.” FAR 15.101-2(a), (b)(2); see Carahsoft Tech. Corp. v. United States, 86 Fed. Cl. 

325, 349 n.22 (2009) (stating that, in a lowest price technically acceptable procurement, award is 

 
According to plaintiff, the SSA increased the importance of the Price factor by 

“inflat[ing] the technical portion of Entwistle’s lowest-priced proposal and 

downplay[ing] the technical superiority of Mil-Mar and the other offerors’ higher-priced 

proposals,” id., and “[s]uch action is evidence of his desire to award the contract to the 

lowest-priced offeror that met a minimum level of technical acceptability,” Pl.’s Resp. 18 

(citing Femme, 83 Fed. Cl. at 770). Plaintiff maintains that, in contravention of the 

Solicitation, the SSA considered price “the predominate basis for award,” Pl.’s Mot. 35; 

see Pl.’s Resp. 18 (“[T]he SSA’s best value tradeoff accorded price more weight than the 

RFP permitted.”), and that, therefore, the SSA’s “best value analysis was irrational and 

contrary to law,” Pl.’s Mot. 36 (citing FAR 15.305(a)). 

The court finds that plaintiff’s reliance on Femme is inapposite. In Femme, this 

court found that the SSA’s best value analysis was improper in part because the SSA 

evidenced an “intent to inflate the technical portions of the low-price offerors’ proposals 

and downplay the technical superiority of the higher-priced offerors’ proposals.”

Femme, 83 Fed. Cl. at 767-68. In particular, the Femme court observed that the SSA

“went out of her way to undercut the superior technical evaluations of the higher-priced 

proposals” by “prais[ing] the merits of lower-rated [lower-priced] proposals . . . , but 

steadfastly declin[ing] to praise the merits of lower-rated [higher-priced] proposals.” Id.

at 768-69. The Femme court also noted that the SSA “emphasized the nature, quality, 

and extent of a proposal’s strengths when it benefitted a lower-priced proposal but often 

ignored the nature, quality, and extent of a proposal’s strengths and relied instead on 

the . . . ratings when a higher-priced proposal was found to be superior.” Id. at 769.

Here, the record does not indicate that the SSA manifested any “intent to inflate 

the technical portions of” Entwistle’s proposal or to “downplay the technical superiority 

of” Mil-Mar’s proposal. Cf. id. at 768. Instead, the SSA repeatedly highlighted MilMar’s technical advantages and also repeatedly noted the lower risk associated with MilMar’s proposal. See supra Part III.E.1-2 (discussing the SSA’s comparative assessment 

of the proposals submitted by Entwistle and Mil-Mar and finding it adequate). The SSA 

also addressed each of Entwistle’s weaknesses. See id. In the instances in which the 

SSA determined that a risk associated with Entwistle’s proposal could be mitigated, the 

SSA provided a reasoned and rational basis for his decisions. See, e.g., AR 1897 (finding 

that the “moderate risk” rating assigned to Entwistle under the manufacturing facilities

consideration could be mitigated). Because the court finds that the SSA conducted an 

adequate comparative assessment of proposals, see supra Part III.E.2, sufficiently

documented his best value determination, see supra Part III.E.3, and made this

determination consistent with the evaluation factors set forth in the Solicitation, the court 

will not substitute its judgment for that of the Agency, cf. Afghan Am., 90 Fed. Cl. at 360

“made to the offeror with the ‘lowest evaluated price’ and a proposal ‘meeting or exceeding the 

acceptability standards for non-cost factors’” (quoting FAR 15.101-2(b)(1)).

 
(“The Court will not disturb a best-value award so long as the agency documents its final 

award decision and includes the rationale for any business judgments and tradeoffs 

made.” (internal quotation marks omitted)).

Plaintiff further argues that, in addition to “[t]he SSA’s numerous references to 

Mil-Mar’s price,” the language used by the SSA in his analysis illustrates that the SSA

considered price to be more important than the two non-price factors. Pl.’s Mot. 35-36. 

Specifically, plaintiff points to the following statements as evidence that “price became 

the predominant factor for award”:

“[T]he advantages offered by Mil-Mar in the Production Capability and 

Experience factors are, simply stated, not worth the payment of a $[* * *] 

or [* * *]% premium in the price”; “price may be controlling when ‘[t]he 

advantages of a higher rated, higher price proposal are not considered to be 

worth the price premium’”; “it is well worth it to the Government to pay 

over $[* * *] less for Entwistle’s proposal”; and “not enough to overcome 

the $[* * *] in savings to the Government available from Entwistle’s 

proposal.”

Id. at 35 (second alteration in original) (quoting AR 1900-01 (SSDD)). Plaintiff contends 

that the foregoing indicates that the SSA “improperly converted the source selection from 

one emphasizing technical superiority and skills . . . to one based upon technical 

acceptability and low price.” Id. at 35-36.59 

The Solicitation explicitly provided, however, that “price may be controlling 

when . . . [t]he advantages of a higher rated, higher price proposal are not considered to 

be worth the price premium.” AR 277 (RFP). Therefore, as defendant correctly 

contends, “to the extent the agency did accord price controlling weight, it was permitted 

to do so.” See Def.’s Reply 9; cf. Serco Inc., 81 Fed. Cl. at 497 (cautioning against 

59 Plaintiff also claims that “the SSA’s statement that Entwistle’s proposal ‘gives the 

Government confidence that it has the capacity to provide for timely delivery of supplies in 

satisfaction of contract requirements and that it will successfully meet contract requirements 

based upon its prior experience’” is the type of language often used in lowest-price technically 

acceptable procurements. Pl.’s Mot. 35 (quoting AR 1901 (SSDD)). Although there may be 

support for plaintiff’s argument, see FirstLine Transp. Sec., Inc. v. United States, 100 Fed. Cl. 

359, 377 (2011) (“[T]he relevant question is not whether the lowest-priced proposal will meet 

the minimum technical requirements set forth in the RFP; rather, the government must determine 

which proposal represents the best value to the government.”), the court does not find that the 

Agency’s use of this language warrants disrupting the award to Entwistle, cf. Metcalf Constr. Co. 

v. United States, 53 Fed. Cl. 617, 622 (2002) (“[M]inor errors or irregularities, i.e., harmless 

errors, committed in the course of the procurement process are not sufficient grounds to warrant 

judicial intrusion to upset a procurement decision.”).

 
“mak[ing] a nominal technical advantage essentially determinative, irrespective of an 

overwhelming price premium” (internal quotation marks omitted)).60 

IV. Conclusion

For the foregoing reasons, plaintiff’s Motion is DENIED, and the Motions of 

defendant and intervenor are GRANTED. The Clerk of Court shall enter judgment for 

defendant. No costs. 

IT IS SO ORDERED.

s/ Emily C. Hewitt 

EMILY C. HEWITT

Chief Judge

60 If plaintiff wishes to contest this term of the Solicitation, plaintiff should have objected 

to this term prior to the close of bidding. Cf. Blue & Gold, 492 F.3d at 1313 (“[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 subsequently in a bid protest action in the Court of Federal Claims.”).

 
EXHIBIT A

Table of Contents

I. Background.............................................................................................................. 3

A. The Solicitation............................................................................................. 3

1. Section L of the Solicitation: Instructions, Conditions and Notices 

to Offerors.......................................................................................... 5

2. Section M of the Solicitation: Evaluation Factors for Award.......... 6

B. Responses to the Solicitation and the SSEB’s Evaluation of Proposals....... 8

C. Requests for Clarification............................................................................. 9

D. Price Evaluation Reports............................................................................ 10

1. The Initial Price Evaluation Report................................................. 10

2. The Entwistle Price Evaluation Report and Addendum to the 

Entwistle Price Evaluation Report................................................... 11

3. The Final Price Evaluation Report.................................................. 13

E. Best Value Analysis and Contract Award.................................................. 13

F. Procedural History...................................................................................... 14

II. Legal Standards...................................................................................................... 14

A. Jurisdiction.................................................................................................. 14

B. Motion for Judgment on the Administrative Record.................................. 15

C. Standard of Review..................................................................................... 16

1. The Plaintiff Must Establish Error................................................... 16

2. The Plaintiff Must Establish Prejudice............................................ 18
III. Discussion.............................................................................................................. 18

A. Plaintiff Has Standing to Bring This Protest.............................................. 18

B. The Agency Treated the Offerors Equally and Rationally in Its Evaluation 

of Experience.............................................................................................. 20 

1. The Experience of Entwistle, [* * *], [* * *] and [* * *]................ 21

2. The Agency’s Evaluation of the Experience of Entwistle, [* * *], 

[* * *] and [* * *]............................................................................ 24

3. The Agency Treated Offerors Equally and Rationally in Its 

Evaluation of Experience................................................................. 27

C. The Agency Did Not Conduct Improper, Unequal Discussions................. 33

D. The Agency’s Price Realism Analysis Was Rationally Based................... 41

1. The Agency’s Comparison Techniques for Material Costs Was 

Rationally Based.............................................................................. 46

2. The Agency’s Evaluation of the Frame Was Rationally Based...... 49

3. The Agency’s Comparison of Labor Hours Was Rationally 

Based. ............................................................................................. 53

E. The Agency’s Best Value Trade-Off Analysis Was Rationally Based and 

Consistent with the Solicitation’s Evaluation Scheme............................... 58

1. The SSA’s Comparative Assessment of the Proposals Submitted 

by Entwistle and Mil-Mar................................................................ 62

2. The SSA Performed an Adequate Comparative Assessment of the 

Proposals.......................................................................................... 66

3. The SSA’s Best Value Trade-Off Analysis Was Sufficiently 

Documented..................................................................................... 69

4. The SSA’s Best Value Trade-Off Analysis Was Consistent with the 

Solicitation’s Factor Evaluation Scheme......................................... 70

IV. Conclusion............................................................................................................. 73