# In th e United States Court of Federal Cl aims

No. 18-84C (F iled Under Seal: March 29, 2018) (Reissued for Publication: April 17, 2018) *

************************************* AMERI CAN CORRECTI ONAL * HEAL T HCARE, I

NC., *
* Plaintiff, *
*
v. * Postaward B id Protest; Cross-Motions for
* J udg ment on the Administrative Record; THE UNI TED STATES, * Scope of Evaluation of Technical Proposals;
* Meaning ful and Equal Discussions; B est Defendant, * Value Determination; Tradeoff Analy sis;
* Permanent Injunction; W aiver and *
* NAPHCARE, I

NC., *
* Defendant-I

ntervenor. *
*************************************

H. Todd W hay , McL ean, VA, for plaintiff.

Devin A. W olak, United States Department of Justice, W ashing ton, DC, for defendant.

J ason A. Carey , W ashing ton, DC, for defendant-intervenor.

OP INION AND ORDER

SWEENEY , J udg e

I n this postaward bid protest, plaintiff American Correctional Healthcare, I nc. (“ACH”) contends that the F ederal B ureau of Prisons (“B OP”) erred in awarding a comprehensive medical services contract to defendant-intervenor NaphCare, I nc. (“NaphCare”). Specifically , ACH alleg es that the B OP improperly evaluated the offerors’ proposals, failed to conduct meaning ful discussions, and erred in determining which proposal represented the best value. B efore the

* This reissued Opinion and Order incorporates the ag reed-to redactions proposed by the parties on April 16, 2018, with minor chang e s for consistency . The redactions are indicated with bracketed ellipses (“[ . . .] ”)court are the parties’ cross-motions for judg ment on the administrative record. As ex p lained below, the court grants in part and denies in part all three motions, and enters a permanent injunction enjoining the B O P from commencingperformance of its contract with NaphCare until it reopens discussions, reevaluates the proposals, and makes a new source selection determination.

I. BACK G ROUND

A. The Solicitation Normally , “the B OP provides essential medical, dental, and mental health services to F ederal inmates” using

its own resources. Administrative R. (“AR”) 22. However, when the B O P is unable to provide for a particular medical need, it relies on a contractor to provide the necessary services. I d. The contract to provide these services for the United States Penitentiary in Atlanta, Georg ia (“USP Atlanta”)–held by ACH–was set to ex p ire on J anuary 31, 2017. I d. at 137. Thus, the B OP soug ht to award a new contract. On September 12, 2016, the B OP issued solicitation RF PP03011600001 to acquire comprehensive medical services for USP Atlanta. I d. at 15. The B OP intended to award a sing le “indefinite delivery

/requirements ty

pe contract with firm fix e d unit prices” with an initial oney ear term and four one-y

ear option periods. I d. at 53. The solicitation incorporated section 52.212-4 of the F ederal Acquisition Reg ulation (“F AR”), id. at 15, which provides: The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the rig ht to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. I f repair/replacement or reperformance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services.

F AR 52.212-4(a) (2016). The “necessary services” that the B OP soug ht to procure were described in the solicitation’s Performance W ork Statement “in terms of output rather than specific task assig nments.” AR 23. Of the five listed outputs, two are relevant here: Output #1: Provide inpatient and outpatient facility services which conform to community standards and all local, state and F ederal laws and reg ulations applicable to the delivery of health care to members of the g eneral public. . . .

-2-Output #2: Provide professional services which conform to community standards and all local, state and F ederal laws and reg u lations applicable to the delivery of health care to members of the g eneral public.

I d. W ith respect to Output #1, th e contractor would be required to provide facility

services on an as-needed basis in a manner which adheres to community standards of quality and cost-effective medical care. The services required to satisfy

Output #1 may

include inpatient facility

and outpatient facility , including emerg ency

room services. I

npatient visits for non-emerg ency services shall require private room accommodations with available space for up to three armed or unarmed g

uards per inmate.

I d. at 24. W ith respect to Output #2, the contractor would be required to provide “[ p ]rofessional services . . . in a community

- based setting(e.g ., hospital facility , surg ical center, phy sician’s office, etc.)” or “within the confines of the USP.” I d. at 25.

The B OP instructed offerors to submit proposals in three volumes: a volume containing a technical proposal, a volume containing past performance information, and a volume containing a business proposal. I d. at 47. Relevant here are the technical and business proposals. The technical proposal was to “contain enoug h specificity

to address each evaluation factor and the terms and conditions of the Performance W o rk Statement.” I d. at 60. Offerors were also required to include in their technical proposals a Technical Proposal Summary Sheet for each hospital network that the offeror proposed using for inpatient and outpatient facility services; each Technical Proposal Summary Sheet was to indicate what services the hospital network offered and whether the offeror was ex cluding from its proposal any of the services offered by the hospital network. I d. at 60, 107-09. Additionally , offerors were “encourag ed to propose enhancements to the basic contract requirements” that would “facilitate the USP’s ability to conform to the B OP’s stated mission.” I d. at 30. Proposal enhancements that would “assist the USP in mitig ating security concerns” were particularly encourag ed. I d.; see also id. (ex plaining that there are “security

concerns inherent in transporting ” inmates to receive medical care and therefore USP Atlanta’s preference was to “treat inmates within the confines of a secure perimeter whenever possible”). The business proposal was to include a completed Schedule of I tems indicatingproposed prices for each of six

categ ories: I npatient F acility Services, Outpatient F acility Services, I npatient/Outpatient Phy sician Services, Outpatient I n stitution Services (Optometrist), Outpatient I nstitution Services (Oral Surg eon), and Outpatient I nstitution Services (Other Phy sicians). I d. at 19-22, 62. W ith respect to four of the categ ories (the first three and the six th), the B OP
ex p lained that offerors will be allowed to propose a variance from the benchmark Medicare rate in the form of a discount from or a premium to Medicare rates established by the

-3-Centers for Medicare and Medicaid Services. . . . [ O] fferors need only to propose that percentag e discount from or premium to the Medicare benchmark rate which will reflect the desired level of pay ment for the categ ory

of services rendered.

I d. at 17; accord id. at 19-22 (containing the Schedule of Items). F or the other two categ ories, offerors were to propose per-session dollar amounts. I d. at 19-22.

The B OP advised offerors that its technical evaluation would “be based on the documentation which supports an offeror’s ability to perform in accordance with the terms and conditions of [ the] solicitation.” I d. at 63. Specifically , the B OP would determine whether a proposal included a
[ d] emonstrated approach to providing an appropriate mix of resources to deliver quality medical care to the inmates of the USP, while mitig ating the Government’s cost and security risks, as measured by

the following subfactors, which are of equal importance:

1. L e vel of diversity

of services proposed; 2. Driving distance and conditions to and from the community

- based providers; 3. Accreditation status of the proposed contract facility (s); 4. Enhancements to the basic contract requirements proposed by the offeror which will facilitate the USP’s ability to conform to the B OP’s stated mission.

I d. at 64.

The B OP also advised offerors that it would evaluate their proposed prices to determine which proposal offer[ ed] the lowest price to the Government. The offeror providing

the hig hest discount from the Medicare rate will be considered to be offering

the lowest price in each categ ory . The offeror proposing the hig hest premium to the Medicare rate will be considered to be offering the hig hest price in each categ ory . F o r other items, [ the] offeror proposing the lowest unit price will be considered to be offering the lowest price in each categ ory

.
I d. at 63; see also id. at 17 (“Ex cept for services based on session rates, price proposals [ sic] will be calculated from benchmarks utiliz ing Medicare reimbursement methodolog ies.”). It indicated that the pricingcateg ories were not of equal importance, listing them from most important to least important as follows: Inpatient F acility Services, I

npatient/Outpatient Phy sician Services, Outpatient I nstitution Services (Other Phy sicians), Outpatient F acility Services, Outpatient I nstitution Services (Optometrist), Outpatient Institution Services (Oral Surg eon). I d . at 64. The

-4-B O P provided that once it determined which offeror proposed the lowest price in a particular

categ ory , it would assig n “a proportionate amount of points . . . to each offeror below the hig hest-ranked offeror in each categ ory .” 1 I d.
Overall, the B OP planned to award the contract to the responsible offeror “whose proposal, conforming

to the solicitation, [ was] determined to be in the best interest of the Government, price and other factors considered.” I d. I t ex p lained that “[ i] n

this tradeoff process, non-price factors (when combined) [ were] approx imately equal to price” and that “[ t] echnical criteria and past performance [ were] of equal value.” I d . F urther, the B OP advised that “should the offerors’ proposals be considered approx imately the same or equal under non-price factors, price could be paramount in the selection decision.” Id.

B. The P roposals

The B OP received seven proposals from six offerors by

the October 28, 2016 deadline set forth in the solicitation, 2 id. at 798, including proposals from ACH and NaphCare, id. at 152-472.

I n its technical proposal, ACH, a service-disabled, veteran-owned small business, id. at 155, offered to provide inpatient and outpatient facility services at [ . . .] , id. at 161. ACH desig nated [ . . .] as its primary and trauma provider, [ . . .] as its secondary provider, [ . . .] as its overflow provider, and [

. . .] as its long -term care provider. I d. at 158. Notably , in the ex clusion section of the Technical Proposal Summary Sheets for [

. . .] , ACH indicated that the hospital networks would “not be providing behavioral health services of any k ind.” I d. at 315, 323; see also id. at 176-86 (reflecting that [ . . .] did not offer behavioral health services). W ith respect to inpatient and outpatient phy sician services, ACH stated that its network included physicians (including psy c h iatrists) associated with [ . . .] . I d. at 203-301. F urther, ACH identified the phy sicians (includinga psy chiatrist with privileg es at [ . . .] ) and [

. . .] providers it would use to

1 Thus, by implication, offerors were advised that for each of the six pricing categ ories, the B OP would assig n

the most points to the offeror with the lowest proposed price, and proportionately

fewer points to each offeror with a hig her proposed price. I

ndeed, in its Source Selection Plan, the B OP provided:

The max imum number of points available in each pricing categ ory will be allotted to the offeror proposing

the lowest price. Each hig her price thereafter will be awarded a proportionate number of points according to the following procedure: [ . . .]

AR 11.

2 Offerors were “encourag ed” to submit multiple proposals. AR 59. NaphCare submitted two proposals, see id. at 381-472, only the second of which is relevant in this bid protest.
-5-supply outpatient institution services. I d. at 302. F inally , ACH offered several enhancements:

[ . . .] I d. at 311-12.

I n its technical proposal, NaphCare stated that it would provide inpatient and outpatient facility services at [ . . .] . I d. at 384, 389. NaphCare desig nated [ . . .] as its primary

provider, [ . . .] as its alternate providers, and [ . . .] . I d. Notably , in the ex clusion section of its Technical Proposal Summary

Sheets for all four hospital networks, NaphCare indicated that it was not
ex c luding any

services they

offered. I d. at 428, 431, 434, 437. W ith respect to inpatient and outpatient phy sician services, NaphCare stated that its network included phy sicians associated with [ . . .] . I d . at 400-02. F urther, NaphCare represented that it had ag reements with phy sicians and providers affiliated with [ . . .] to supply outpatient institution services. I d . at 302. F inally , NaphCare offered several enhancements, including : [ . . .] I d . at 411-15.

I n their business proposals, ACH and NaphCare offered the following prices: 3

Category A CH NaphCare
I npatient F acility

Services [ . . .] [ . . .] Outpatient F acility

Services [ . . .] [ . . .]
I npatient/Outpatient Phy sician Services [ . . .] [ . . .]

Outpatient I n stitution Services (Other Phy sicians) [ . . .] [ . . .]

Outpatient I n stitution Services (Optometrist) [ . . .] [ . . .]

Outpatient I n stitution Services (Oral Surg eon) [ . . .] [ . . .]

I d. at 372-74, 458-61. ACH did not indicate how it would price services offered by its proposed long -term care provider. See id. at 327 (noting only that [ . . .] would “operate as the long term acute care provider”). NaphCare indicated that the services performed at [ . . .] would be paid under the outpatient facility services and inpatient/outpatient phy sician services rates. I d

. at 438, 458-61.

3 F or the price categ ories in which offerors were to propose discounts or premiums to Medicare rates, [ . . .]

. -6-C. Initial Evaluation of P roposals The contracting

officer/source selection authority (“SSA”), id. at 12, forwarded the proposals to the chair of the technical evaluation panel on November 2, 2016, and requested that the panel return its evaluation forms “within a few weeks,” id. at 126-29. B e cause the panel did not do so, the SSA evaluated the proposals himself and, on F ebruary 6, 2017, forwarded his assessments to the panel for their concurrence. 4 I d. at 141. The panel never sent the SSA the requested concurrence. I d. at 473. Thus, on March 1, 2017, the SSA deemed his rating s to be the official rating s of the proposals. I d.

W h en he evaluated the technical proposals, the SSA assig ned each proposal a color/adjectival rating . See, e.g ., id. at 473-80. The possible rating s, as set forth in the Source Selection Plan, were B lue/Ex ceptional, Purple/Very Good, Green/Satisfactory , Yellow/Marg inal, and Red/Unsatisfactory . I d. at 9. The Green/Satisfactory rating was defined as:
[ . . .]

I d. I n addition, “[ i] f a proposal [ did] not fully comply with all of the criteria for a rating categ ory , ” the SSA was permitted, but not required, to “assig n a ratingand append either a plus sig n (+) or a minus sig n

(-) to indicate an intermediate rating .” I d.

I n his evaluation of ACH’s technical proposal, the SSA beg an by commenting on the diversity of services that ACH offered. Id. at 474. He described the facilities at which ACH was offering services, noted that ACH ex cluded the behavioral health services offered at [ . . .] , and confirmed that ACH included “all requested on-site institution services . . . .” I d . He therefore concluded: [ . . .] I d. at 474-75. Nex t, the SSA described [ . . .] the enhancements offered by ACH: [ . . .] I d. at 475. The SSA then noted [ . . .] streng ths for ACH’s proposal [ . . .] and z ero weaknesses. I d . Overall, the SSA rated ACH’s technical proposal as Green/Satisfactory , commenting : [ . . .]

I d. at 475-76.

I n his evaluation of NaphCare’s technical proposal, the SSA beg an by commenting on the diversity of services that NaphCare offered. I d. at 477. He described the facilities at which

4 The individual who evaluated the proposals was not the individual who forwarded the proposals to the chair of the technical evaluation panel. Compare AR 127-28 (indicating that Dennis A. Chinnici forwarded the proposals to the technical evaluation panel), with id. at 141 (indicating that Darren Dog g ett evaluated the proposals). Althoug h there is no documentation of the chang e in SSAs in the administrative record, it appears that Mr. Dog g ett replaced Mr. Chinnici as SSA between November 2, 2016, and F e bruary 6, 2017.

-7-NaphCare was offering services, noted that NaphCare did not ex clude any services offered at the facilities, and confirmed that NaphCare included “all requested on-site services.” I d. He therefore concluded: [ . . .] I d. at 478. Nex t, the SSA described [ . . .] the enhancements offered by NaphCare: [ . . .] I d. The SSA then noted [ . . .] streng ths for NaphCare’s proposal [ . . .] and

z e ro weaknesses. I d. Overall, the SSA rated NaphCare’s technical proposal as Green/Satisfactory

(+), commenting : [ . . .]

I d. at 478-79.

The SSA nex t evaluated the offerors’ past performance, assig ning rating s of Very

Good to both ACH and NaphCare. I d. at 480. F inally , the SSA evaluated the prices proposed by the offerors in their business proposals. I d. at 481-97. F irst, for the price categ ories peg g ed to Medicare rates, he converted those percentag es to a score, as follows:
[ . . .]

I d. at 482. Using the resulting scores (and the per-session dollar amounts for the two price categ ories not peg g ed to Medicare rates), the SSA determined which offerors proposed the lowest price in each categ ory . I d. at 486-97. He then used the following methodolog y

to determine each offerors’ total pricing score: 5

I n order to apply

the solicitation criteria for evaluation of price, it is necessary to score the price proposals by g iving the lowest price in each categ ory the max imum number of points. Each hig her-priced proposal is then awarded a proportionate number of points according to the following procedure: [ . . .]

I npatient F acility

Services [ . . .]

I n/Out Phy sician Services [ . . .] Outpatient I nstitution Services (Other Phy sicians) [ . . .] Outpatient F a cility

Services [ . . .] Outpatient I nstitution Services (Optometrist) [ . . .] Outpatient I nstitution Services (Oral Surg eon) [

. . .]

5 F or simplicity , the court omits the SSA’s description of how he scored the prices for the authoriz ed six

- month ex tension of services. See AR 485.

-8-I d. at 485. Under this methodolog y , a hig h er total pricingscore reflects a lower total proposed

price. I d. ACH’s total pricingscore was 96.30, and NaphCare’s total pricing score was 93.18. I d. at 480, 487, 491.

D. Discussions and F inal P roposal Revisions After he evaluated all of the proposals, the SSA determined that discussions should be conducted. I d. at 498. He established a competitive rang e consisting of ACH’s and NaphCare’s proposals, id. at 498-99, and determined the topics for discussions, id. at 500. On March 6, 2017, the SSA sent ACH and NaphCare letters to initiate discussions. I d . at 501-04. He requested the following information from ACH: “Reference: Technical Proposal. ACH has ex cluded B e havioral Health as an offered specialty at [ . . .] . Please provide an explanation for the
ex c lusion and confirm that this specialty is available at [ . . .] .” I d. at 501. He requested the following information from NaphCare: Reference: Technical Proposal. Please provide additional information reg arding [ . . .]

. Reference: B usiness Proposal. The proposed price in the following categ ories is considered a weakness:
[ . . .]

I d. at 503. The SSA instructed both offerors to submit final proposal revisions by March 22, 2017, that addressed the issue or issues he raised. I d. at 501, 503. He also noted that “this [ was the offerors’] opportunity to make any

final revisions in the proposal[ s they mig ht] deem necessary ,” and ex plained that the offerors could make chang es to their proposals bey ond the issue or issues he identified. I d.

W ith its final proposal revisi on, ACH provided the followingresponse to the discussion issue raised by

the SSA:

B o th [ . . .] behavioral wing s are “open” units. There are sig n ificant security

risks associated with allowingF ederal inmates [ to] utiliz e open psychiatric units within each hospital. These risks have been discussed with both the prison and the hospitals during the previous contract term, and the hospitals will not accept the inmates as patients. Reg a r ding [ . . .] , this provider does not offer behavioral services or psy

chiatric care at this time. ACH is now offering

[ . . .] as an additional provider for medical services, including behavioral health.

-9-I d. at 506. Then, in its final proposal revision, ACH indicated that [

. . .] . W ith respect to

behavioral health services, ACH represented:

B ehavioral Health Services at [ . . .] offers crisis intervention and crisis stabiliz ation services for adults of all ag es for mental illness (includingchemical dependency

and detox ification) that meets a level of acuity requiringinpatient care. [ I ts] clinical staff provides assessments and appropriate dispositions 24 hours a day , seven day s a week for patients in the Emerg ency Department or on medical units within the hospital. [ . . .] ’s B ehavioral Health Services locked inpatient unit also considers transfers from other facilities on a case-by -case basis for most mental illnesses if criteria are met for an inpatient level of care. This unit will be the primary

psy chiatric inpatient unit for USP Atlanta’s psyc hiatric needs.

B ehavioral Health Services at [ . . .] does not currently offer any outpatient assessment or treatment services[ .]

I d. at 552. ACH did not chang e its proposed prices in its final proposal revision. I d. at 506.

I n its final proposal revision, NaphCare provided the information requested by the SSA reg arding[ . . .] : [ . . .]

I d. at 751. I n

addition, NaphCare revised its proposed prices as follows:

Category NaphCare (Old) NaphCare (New )
I npatient F acility

Services [ . . .] [ . . .] Outpatient F acility

Services [ . . .] [ . . .]
I npatient/Outpatient Phy sician Services [ . . .] [ . . .]

Outpatient I n stitution Services (Other Phy sicians) [ . . .] [ . . .]

Outpatient I n stitution Services (Optometrist) [ . . .] [ . . .]

Outpatient I n stitution Services (Oral Surg eon) [ . . .] [ . . .]

I d. at 454-57, 503, 773-76.

- 10-The SSA evaluated the final proposal revisions in May 2017. I d. at 777-82. In his evaluation of ACH’s technical proposal, the SSA noted the addition of [ . . .] , but otherwise did not chang e his initial evaluation. Compare id. at 474-76 (initial evaluation), with id. at 777-79 (new evaluation). The SSA did not make any chang es to his evaluation of NaphCare’s technical proposal. Compare id. at 477-79 (initial evaluation), with id. at 780-82 (new evaluation). W ith respect to the offerors’ proposed prices, the SSA calculated ACH’s total pricing score as 109.83 and NaphCare’s total pricing score as 106.15. I d . at 789, 791-92.

E. The Source Selection Decision and Contract Aw a rd

On J une 5, 2017, the SSA prepared two documents: a Price Analy sis and a Summary

of Neg otiations. I d. at 793-97. In the Price Analy sis, the SSA soug ht to determine whether the prices proposed by NaphCare were fair and reasonable, as required by F AR 15.404-1(b). I d. at 793-95. His analy sis involved comparing NaphCare’s proposed prices to both the prices proposed by

ACH and the prices proposed by the offerors whose proposals were ex c luded from the competitive rang e. 6 I d. at 793. Upon makingthe comparisons, the SSA concluded that all of NaphCare’s proposed prices were fair and reasonable. I d. at 793-95. In the Summary of Neg otiations, the SSA summariz ed his discussions with NaphCare. 7 I d. at 796-97. [ . . .] I d. Then, on August 14, 2017, the SSA issued his Source Selection Decision. After
ex p laining that only

two proposals remained in the competition and that the offerors who submitted those proposals–ACH and NaphCare–were assig ned the same Past Performance rating , id. at 798-99, the SSA compared ACH’s and Naphcare’s technical proposals: Each offeror included the same additional hospitals with ex ception of [ . . .] which is offered by

ACH. Each offeror included a [ . . .] in the network of offered hospitals. [

. . .] Each offeror is proposing a g ood diversity of phy sician services at [ . . .] . Also, each offeror includes all requested institution-based phy sician services. [ . . .]

ACH includes several L ong Term Care (L T C) facilities in their network. However, L TC facilities are covered by a different Medicare reimbursement fee schedule which was not included in the solicitation. There is no pricing mechanism in the solicitation which would allow a proper evaluation of this offering . The proposal is unclear reg ardingthe cost for services provided at an L TC facility . Therefore, the Government could not determine the value of the L TC facilities based on the information submitted by ACH.

6 There is no indication in the administrative record that the SSA performed a similar analy sis of ACH’s prices.

7 There is no indication in the administrative record that the SSA prepared a similar document summariz ing his discussions with ACH.

- 11-ACH ex cluded behavioral health as a hospital and phy sician specialty

at [ . . .] . Naphcare did not ex clude any hospital or phy sician specialty at any of their proposed hospitals. ACH’s ex clusion of behavioral health at [ . . .] creates a less comprehensive and diverse approach. Naphcare’s offering of mental health at [ . . .] three proposed hospitals is considered beneficial to the USP. The solicitation notified offerors that the Government would evaluate diversity of services. B y specifically

ex cluding behavioral health [ . . .] , ACH weakened their technical approach for meeting the medical needs of the USP. ACH was informed of this weakness during

discussions; however, ACH made no chang es in [ its] F inal Proposal Revision in this area. . . . Thus, Naphcare is offering the USP a larg er g roup of medical providers to service the inmate population. Therefore, for the diversity

of services offered evaluation factor, Naphcare’s proposal is more advantag e ous than ACH.
[ . . .]

. . . . Each proposal included enhancements to the basic contract requirement. [ . . .]

. . . . [ . . .] Conversely , the enhancements proposed by ACH offer fewer benefits than Naphcare. [

. . .] According ly , the enhancements proposed by Naphcare offer more benefits to the overall day -to-day medical operation at USP Atlanta than those proposed by

ACH. Therefore, Naphcare has a clear advantag e over ACH in the areas of diversity of services and proposed enhancements. W hen considering

the offering s contained within each technical proposal, Naphcare’s technical proposal is more valuable to the USP than the offering s in technical proposal of ACH.

I d. at 799-801. Nex t, with respect to the offerors’ proposed prices, the SSA observed: ACH received a hig

her score in the price evaluation than Naphcare by 3.68 points. [ . . .] Therefore, ACH has a slig h t advantag e over Naphcare by offering the lowest overall price.

I d. at 801.

- 12-Then, because the hig hest-rated proposal was not the lowest-priced proposal, the SSA performed a tradeoff analy sis: Althoug h ACH received a Satisfactory rating and Naphcare received a Satisfactory (+) rating

in the technical evaluation, there were discernable differences included in the proposals. W hen analy z ing each proposal, the differences between the two proposals are evident in the diversity of services offered and proposed enhancements. Naphcare offers medical services at [ . . .]

. Naphcare does not ex clude any medical specialty

offered at these facilities. ACH offers medical services at [ . . .] and specifically ex cludes behavioral health at [ . . .] . Therefore, the diversity of services offered by Naphcare delivers more assurances that the majority of essential medical services are covered when compared to the diversity of services offered by ACH. Also, Naphcare’s enhancements offer g

reater administrative support when compared to the enhancements of ACH. . . . As detailed above, Naphcare’s proposal offers the Government the best value by

offering a technical approach which includes a larg er diversity

of medical services and better enhancements. W h ile Naphcare’s proposed prices are slig htly hig her than ACH[ ’s] , Ifind the technical benefits of a proposal which does not ex clude any

medical specialty , offers [ . . .] , and includes value-added enhancements merits the pay ment of a slig ht price premium and therefore represents the best value.

I d. at 801-02. According ly , the SSA concluded that the contract should be awarded to NaphCare. I d. at 802.

F . ACH’s G overnm ent Accountability Of f ice P rotests

The B OP notified the offerors of the contract award to NaphCare on Aug ust 15, 2017, id. at 803, 812, and provided ACH with a written debriefing the following day , id. at 814-15. F ive day s later, on Aug

ust 21, 2017, ACH lodg ed a protest with the Government Accountability Office (“GAO”). Id. at 816. I n support of its protest, ACH submitted copies of several electronic-mail messag es from J uly 2014 and F ebruary 2015 indicating that on two separate occasions, ACH was unable to find a facility in Atlanta or the Atlanta area willing to accept an inmate requiringinpatient psy chiatric care because the psy chiatric units at those facilities were “open ty p e units.” I d . at 830-31. ACH then submitted a supplemental protest on Aug ust 28, 2017, id. at 836, attached to which was a declaration made under penalty of perjury

by W inston E. Dix on, ACH’s president, id. at 843-44. I n his declaration, Mr. Dix on averred:
11. . . . On Aug ust 22nd and 23rd of 2017, I confirmed through my

contacts at [ . . .] that Naphcare has ag reements with [ . . .] . Naphcare does not have any ag reements to provide services with [ . . .]

.

- 13-12. I npatient mental health services (in the open unit) for inmates are not

available at [ . . .]

. 13. B ased upon the actual usag e of healthcare under ACH’s incumbent contract, I calculated the price difference between the ACH and Naphcare offers. . . . The pricing offered by

ACH is approx imately

$1,115,940.65 less than the pricing proposed by

Naphcare over the 5-y

ear period of performance[ .]

I d.; see also id. at 5 ([ . . .] ). On September 1, 2017, after the B OP advised “that it would take corrective action by

conducting a reevaluation of the proposals and making a new best value award determination,” the GAO dismissed ACH’s protests as academic. I d. at 847. On September 21, 2017, the SSA reevaluated the offerors’ final proposal revisions. I d. at 848-53. In reevaluating

ACH’s technical proposal, the SSA provided a more detailed description of [

. . .] , indicating that [ . . .] . I d. at 848-49; accord id. at 850. The SSA also [ . . .] the following comment [ . . .] long -term care facility [ . . .] : “Reimbursement Rate is unknown.” I d. at 850. F inally , the SSA noted the following as a weakness: “Ex clusion of behavioral health at [ . . .]

. I npatient behavioral health only offered at one hospital and specifically ex cludes outpatient behavioral health.” I d . The SSA did not make any other substantive chang es to his earlier evaluation of ACH’s technical proposal. Compare id. at 777-79 (earlier evaluation), with id. at 848-50 (new evaluation).

I n reevaluating

NaphCare’s technical proposal, the SSA made only two chang es to his earlier evaluation. Compare id. at 780-82 (earlier evaluation), with id. at 851-53 (new evaluation). F irst, he added a [ . . .] item to the list of enhancements: [ . . .] I d. at 852. Second, he [ . . .] streng ths: [

. . .] I d.
After his reevaluation, the SSA summariz ed his rating s of each proposal, which remained unchang ed for his prior evaluation:

Of f eror Technical

Rating P ast P erf

orm ance Rating P rice

Score
ACH Satisfactory Very Good 109.83 NaphCare Satisfactory (+) Very Good 106.15

I d. at 855. The SSA then prepared a new Source Selection Decision by revising his orig inal Source Selection Decision to incorporate his finding s from his reevaluation of the final proposal revisions. Compare id. at 798-802 (orig inal Source Selection Decision), with id. at 856-61 (new Source Selection Decision). I n comparingthe offerors’ technical proposals, the SSA amended his orig inal Source Selection Decision by addressing[

. . .] and including the following comments reg ardingACH’s provision of behavioral health services:

- 14-ACH did add [ . . .] to the network of hospitals without ex c luding any medical specialty

. However, ACH is offering inpatient behavioral health only at [ . . .]

. ACH stated that outpatient assessment and treatment is not available at [ . . .]

. Therefore, if ACH were awarded the contract, the offering of behavioral health would be confined to one hospital and only if the inmate required treatment at an inpatient facility

.
I d. at 858. Additionally , the SSA noted in his tradeoff analy sis that ACH offered inpatient behavioral health services at only one hospital. I d. at 860. I n all other respects, the new Source Selection Decision was substantially the same as the orig inal Source Selection Decision. Compare id. at 798-802 (orig inal Source Selection Decision), with id. at 856-61 (new Source Selection Decision). According ly , the B O P notified the offerors on September 22, 2017, that the award to NaphCare had been affirmed. I d. at 862, 864. I t subsequently provided ACH with a written debriefing

on September 26, 2017. I d. at 865-66. ACH lodg ed another protest with the GAO on September 29, 2017, id. at 867, attaching the same electronic-mail messag es and declaration it attached to its earlier protest, id. at 882-83, 894-95. ACH then submitted a supplemental protest on October 6, 2017, id. at 898, to which it attached a new declaration–ag a in made under the penalty of perjury

–from Mr. Dix on, id. at 906. I n this second declaration, Mr. Dix on averred: 11. During the past six y ears of performance of the incumbent contract, the Ag ency has never requested outpatient clinical behavioral services.

12. Ihave spoken with . . . the Manag ed Care Director at [ . . .] . She confirmed that [

. . .] has not been willing to accept inmates into their B ehavioral Health “Open W ing s,” and she is unaware of any chang e to the hospital[ ’] s policy reg ardinginmates.

13. Ihave communicated with . . . the Ex ecutive Director of [

. . .] . He confirmed with hospital administration that the hospital does not provide inpatient behavioral health services to USP Atlanta inmates due to security concerns.

I d. Ultimately , the GAO dismissed some of ACH’s protest grounds and, on J anuary 2, 2018, denied the remainder of the protests. I d. at 978-84.

G . ACH’s P rotest in This Court

On J anuary

17, 2018, ACH filed the instant protest pursuant to 28 U.S.C. § 1491(b). I n its complaint, ACH alleg es that the B OP unreasonably evaluated the proposals with respect to behavioral health services and the overall diversity of services; that the B OP’s best value

- 15-determination was unreasonable due to a misapplication of factor weig hts, the lack of any meaning ful consideration of price, and a failure to consider material facts reg ardingthe availability

of behavioral health services for inmates; and that the B OP did not eng a g e it in meaning ful discussions. ACH therefore requests a declaration that the B OP’s evaluation of proposals was arbitrary , capricious, an abuse of discretion, and contrary to law; an order requiringthe ag ency

to conduct discussions, reevaluate proposals, and make a new best value determination; a permanent injunction prohibiting the B OP from procuring

any work under the contract awarded to NaphCare until a new best value determination is made; and an award of its fees, costs, interest, and ex penses. Pursuant to a schedule proposed by the parties, briefing

on cross-motions for judg ment on the administrative record concluded on F ebruary 27, 2018, and the court heard arg ument on March 20, 2018. 8 I n addition, the day before oral arg

ument, NaphCare filed a motion to strike two small portions of the administrative record (twelve pag e s total), which defendant addressed during oral arg

ument and ACH opposed in a written response filed after oral arg ument. Thereafter, at the court’s direction, ACH filed a declaration from Mr. Dix on–made under the penalty of perjury

–in support of its request for a permanent injunction, to which defendant and NaphCare responded. 9 The court is now prepared to rule.

II. DISCUSSION

I n ruling on motions for judg ment on the administrative record pursuant to Rule 52.1(c) of the Rules of the United States Court of F ederal Claims (“RCF C”), “the court asks whether, g iven all the disputed and undisputed facts, a party has met its burden of proof based on the evidence in the record.” A & D F ire Prot., In c . v. United States, 72 F ed. Cl. 126, 131 (2006)

8 W hen proposingthis schedule, the parties advised the court that the B OP had ag reed to stay performance of the contract awarded to NaphCare until the court resolved ACH’s protest or April 1, 2018, whichever was earlier. Subsequently , on March 29, 2018, defendant filed a notice indicating that on March 21, 2018, the B OP ex tended ACH’s contract throug h the end of April 2018. Defendant explained that the B OP did not inform B OP counsel or counsel from the United States Department of J u stice of the contract ex tension until March 29, 2018. The court appreciates defense counsel’s candor, and has no reason to believe that defense counsel knew that the B OP ex tended ACH’s contract but withheld that information from the court; indeed, defense counsel has acted with honesty and integ r ity throug hout all of his appearances before the court. F urther, the court notes that neither the notice, nor the actions described in the notice, affected its ruling

in this matter.

9 The court directed ACH to file a declaration in support of its request for a permanent injunction in a March 22, 2018 order. B ecause ACH filed the declaration at the court’s direction, defendant’s and NaphCare’s contentions–advanced in their responses to the declaration–that ACH did not request leave of court to file the declaration and failed to arg u e or prove ex cusable neg lect in conjunction with its admittedly late submission are not well taken.

- 16-(citing B annum, I nc. v. United States, 404 F .3d 1346, 1356 (F e d. Cir. 2005)). B ecause the court

makes “factual finding s . . . from the record evidence,” judg ment on the administrative record “is properly understood as intendingto provide for an expedited trial on the administrative record.” B a nnum, 404 F .3d at 1356.

I n its motion for judg ment on the administrative record, ACH contends that the B OP’s award of the contract to NaphCare was arbitrary , capricious, an abuse of discretion, and contrary to law because the B OP did not properly evaluate the proposals, did not conduct meaning ful and equal discussions, and rendered a flawed best value determination. I n their cross-motions for judg ment on the administrative record, defendant and NaphCare assert that the B O P properly conducted the procurement.
A. Legal Standard The court reviews challeng ed ag ency actions pursuant to the standards set forth in 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4) (2012). Specifically , “the proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the ag ency action if it is ‘arbitrary , capricious, an abuse of discretion, or otherwise not in accordance with law.’” B a

nknote Corp. of Am. v. United States, 365 F .3d 1345, 1350 (F ed. Cir. 2004). Under this standard, the court

may set aside a procurement action if “(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” A court reviews a challeng e broug ht on the first g round “to determine whether the contracting ag ency provided a coherent and reasonable
ex p lanation of its ex ercise of discretion, and the disappointed bidder bears a heavy burden of showing

that the award decision had no rational basis.” “W hen a challeng e is broug ht on the second g r ound, the disappointed bidder must show a clear and prejudicial violation of applicable statutes or reg ulations.” Centech Grp., I

nc. v. United States, 554 F .3d 1029, 1037 (F ed. Cir. 2009) (citations omitted) (quoting I mpresa Construz ioni Geom. Domenico Garufi v. United States, 238 F .3d 1324, 1332- 33 (F ed. Cir. 2001)); accord Advanced Data Concepts, I nc. v. United States, 216 F .3d 1054, 1058 (F ed. Cir. 2000) (“The arbitrary and capricious standard . . . requires a reviewing court to sustain an ag ency action evincing rational reasoning and consideration of relevant factors.”).

Procurement officials “are ‘entitled to ex ercise discretion upon a broad rang e of issues confrontingthem’ in the procurement process.” I mpresa, 238 F .3d at 1332 (quoting L atecoere I nt’l, I n c. v. U.S. Dep’t of the Navy , 19 F .3d 1342, 1356 (11th Cir. 1994)). Thus, the court’s review of a procuring

ag e ncy ’s decision is “hig h ly deferential.” Advanced Data Concepts, 216 F .3d at 1058; see also Citiz ens to Preserve Overton Park, I nc. v. Volpe, 401 U.S. 402, 416 (1971) (“The court is not empowered to substitute its judgment for that of the ag ency

. ”). F urthermore, a “protestor’s burden of proving that the award was arbitrary , capricious, an abuse of discretion, or

- 17-otherwise not in accordance with law is g reater [ in neg otiated procurements] than in other ty pes of bid protests.” Galen Med. Assocs., I nc. v. United States, 369 F .3d 1324, 1330 (F ed. Cir. 2004). And, when a contract is to be awarded on a “best value” basis, procurement officials have “even greater discretion than if the contract were to have been awarded on the basis of cost alone.” I d . (citing E.W . B liss Co. v. United States, 77 F .3d 445, 449 (F ed. Cir. 1996) (“Procurement officials have substantial discretion to determine which proposal represents the best value for the g overnment.”)).

I n addition to showing “a sig nificant error in the procurement process,” a protestor must show “that the error prejudiced it.” Data Gen. Corp. v. J ohnson, 78 F .3d 1556, 1562 (F ed. Cir. 1996); see also B a

n num, 404 F .3d at 1351 (holding that if the procuring ag ency ’s decision lacked a rational basis or was made in violation of the applicable statutes, reg ulations, or procedures, the court must then “determine, as a factual matter, if the bid protester was prejudiced by that conduct”). “To establish prejudice . . . , a protester must show that there was a ‘substantial chance’ it would have received the contract award absent the alleg ed error.” B anknote, 365 F .3d at 1350 (quoting Emery

W orldwide Airlines, Inc. v. United States, 264 F .3d 1071, 1086 (F ed. Cir. 2001)); see also Data Gen., 78 F .3d at 1562 (“[ T] o establish prejudice, a protester must show that, had it not been for the alleg ed error in the procurement process, there was a reasonable likelihood that the protester would have been awarded the contract.”). The test for establishing prejudice “is more lenient than showing actual causation, that is, showing that but for the errors [ the protestor] would have won the contract.” B annum, 404 F .3d at 1358.

B. The BOP ’s Evaluation of Technical P roposals ACH first argues that the B OP failed to consider information reg arding the availability of, and need for, behavioral health services for USP Atlanta’s inmates when it evaluated the offerors’ technical proposals. Defendant and NaphCare g e nerally respond that the B OP properly confined its evaluation to the information requested in the solicitation and contained in the proposals.

1 . Consideration of

Inf orm ation Regarding the Availability of Behavioral Health Services ACH initially

contends that the B OP failed to consider, when evaluating the proposals, important information reg ardingthe availability of behavioral health services for federal inmates at the facilities proposed by the offerors. As noted above, NaphCare did not ex clude behavioral health services from any

of the facilities identified in its initial proposal, including [ . . .] . I n contrast, in its initial proposal, ACH ex cluded the behavioral health services offered by [ . . .] , and sug g ested that [ . . .] did not offer behavioral health services at all. During discussions, the B OP asked ACH to ex plain the reason for the ex clusions and to confirm that [ . . .] did not offer behavioral health services. W ith its final proposal revision, ACH provided the following response:

- 18-B o th [ . . .] behavioral wing s are “open” units. There are sig n ificant security

risks associated with allowingF ederal inmates [ to] utiliz e open psychiatric units within each hospital. These risks have been discussed with both the prison and the hospitals during the previous contract term, and the hospitals will not accept the inmates as patients. Reg a r ding [ . . .] , this provider does not offer behavioral services or psy

chiatric care at this time. AR 506. Additionally , in its final proposal revision, ACH added [ . . .] as an available provider and indicated that [ . . .] offered inpatient behavioral health services. Notwithstanding ACH’s representations that [ . . .] did not accept federal inmates in their behavioral health units and [ . . .] did not offer behavioral health services at all, the B O P did not reopen discussions to ascertain whether NaphCare could provide behavioral health services using [ . . .] . Rather, the B OP evaluated the final proposal revisions and then, in its Source Selection Decision, considered ACH’s ex clusion of the behavioral health services at [ . . .] as diminishing the diversity

of services offered by

ACH, while simultaneously praising NaphCare’s inclusion of behavioral health services at these same facilities. Moreover, when it took corrective action in response to ACH’s initial GAO protest, the B OP did not reopen discussions reg ardingthe availability

of behavioral health services at the facilities included in the offerors’ proposals even thoug h it had received, during the protest, a declaration from Mr. Dix on in which Mr. Dix on reasserted that [ . . .] –facilities with which ACH had contracts to provide medical services–did not offer inpatient behavioral health services for federal inmates.
ACH argues that the B O P, when it received final proposal revisions that contained conflicting information reg arding the availability of behavioral health services at [

. . .] , should have soug h t to confirm whether those facilities could provide such services. ACH further arg ues that the B OP should have accounted for the unavailability of behavioral health services at these facilities when evaluating whether the offerors proposed diverse services and in making its source selection determination. ACH asserts that the B OP’s failure to take these actions rendered the B OP’s evaluation of the proposals arbitrary and capricious.

I n support of its contentions, ACH relies on the GAO’s decision in Continental Maritime of San Dieg o, I nc., B -249858 et al., 1993 W L86794 (Comp. Gen. F eb. 11, 1993). I n that case, the procuring

ag e ncy indicated in the solicitation that it would evaluate proposals under several factors and subfactors, including a Manag ement Capability factor and that factor’s Cost Reporting and Cost Avoidance subfactor. I d. at *1. Duringits investig ation of whether the presumptive awardee was a responsible offeror, the procuring ag ency was advised by

the Defense Contract Audit Ag ency

(“DCAA”) that the presumptive awardee did not have an accounting sy stem acceptable for g overnment contracting purposes and was not in compliance with regulatory

requirements related to its material manag ement and accounting sy stem. I d. at *2. Nevertheless, the procuring ag ency awarded the contract to the presumptive awardee. I d.

- 19-The unsuccessful offeror protested the contract award, arg uing that the procuring

ag ency should have considered the adverse information obtained during its responsibility

investig ation when evaluating

the technical merit of the awardee’s proposal. I d. The GAO ag

reed. I d. I t noted that under the Cost Reportingand Cost Avoidance subfactor of the Manag ement Capability factor, offerors were to use actual ex amples from their ex isting cost reportingsy stems to describe their sy stems for compiling internal and subcontractor costs. I d . at *3. I t further noted that the awardee stated in its proposal that its ex isting cost reportingsy stem was capable of fulfilling the requirements under this subfactor, but that the DCAA found otherwise. I d. The GAO observed:
[ G] enerally an ag ency ’s consideration of the technical merit or acceptability of an offeror’s proposal is distinct from the consideration of the firm’s responsibility

. Technical merit or acceptability concerns an assessment of whether the offeror’s approach and resources as described in its proposal are worthy of a particular rating or adequate to meet the needs of the ag ency as ex pressed in the [ solicitation] . I n contrast, responsibility involves an assessment of an offeror’s ability to perform in accordance with the terms of its proposal and involves the evaluation of information outside the proposal collected during an investig ation which is conducted aside from the actual competition and which may include the use of a preaward survey

.
I t is not alway s possible to draw a distinct line between the two concepts because often traditional responsibility matters are incorporated into technical evaluation criteria used in neg otiated procurements, and where an ag ency uses traditional responsibility criteria to assess technical merit or acceptability , the technical evaluation may

involve consideration of an offeror’s capability as well as its proposed approach and resources. I n such cases, the ag e ncy

may consider relevant information it obtains from outside the proposal for determining responsibility

in order to reassess the technical merits of an offeror’s proposal. I n some circumstances, such information may not be ig nored if received before award. F or ex ample, where the information clearly contradicts representations in the offeror’s proposal, calling into question the evaluators’ conclusions concerning

the merits of the technical proposal, the information must be considered.

I d. at *4 (citations omitted); accord id. (“I n evaluatingproposals, the contracting ag e ncy may consider evidence from sources outside the proposal, and, in some circumstances, the contracting officer may

not ig nore ex trinsic evidence that comes to his or her attention. F o r a procuring ag ency to ig nore ex trinsic evidence indicating that an offeror cannot perform in the way it offered would be unfair to the ag ency and to other competitors and thus inconsistent with the competitive procurement sy stem.” (citation omitted)). Apply ing these principles to the protest before it, the GAO held that “where information in the DCAA report contradicted proposal representations that were major elements of the technical evaluation, the [ procuring a g ency ] could not ig nore the new information in its selection decision.” I d. at *5.

- 20-Defendant and NaphCare arg ue that Continental Maritime does not apply to the facts of this bid protest. Specifically , they contend that Continental Maritime only stands for the proposition that when evaluatingthe technical merits of an offeror’s proposal, a procuring ag ency should consider ex trinsic evidence if it is required, pursuant to the solicitation, to assess the offeror’s ability

to perform under the contract. They further contend that this proposition is consistent with the rule that procuring ag encies must evaluate proposals “based solely on the factors specified in the solicitation,” 41 U.S.C. § 3701(a); accord F AR 15.305(a), and with binding precedent from the United States Court of Appeals for the F ederal Circuit (“F e deral Circuit”). F or ex ample, in Allied Technolog y Group, Inc. v. United States, the F ederal Circuit held:

W h ere an offeror has certified that it meets the technical requirements of a [ solicitation] , the ContractingOfficer is entitled to rely on such certification in determining whether to accept a [ proposal] , and the offeror’s potential failure to comply with the proposal requirements is ordinarily “a matter of contract administration,” which does not g o to the propriety of accepting

the bid. “However, where a proposal, on its face, should lead an ag ency to the conclusion that an offeror could not and would not comply with the [ applicable requirement] , we have considered this to be a matter of the proposal’s technical acceptability ,” which does affect the propriety of accepting

the offer.

649 F .3d 1320, 1330 (F ed. Cir. 2011) (citation omitted) (quotingCentech Grp., I nc., 554 F .3d at 1039); accord Per Aarsleff A/S v. United States, 829 F .3d 1303, 1315 (F ed. Cir. 2016) (“[ T] he g eneral rule [ is] that an ag e ncy may rely upon an offeror’s certification of compliance with a solicitation’s technical requirements.”); see also id. at 1315 (observing that two statements in the solicitation reg ardingthe requirement to max imiz e the use of Danish subcontractors referred to “contract performance, not eligibility criteria”; that in their proposals, all of the offerors ag reed to comply with these requirements during contract performance; and that in the absence of any contrary evidence in each offeror’s respective proposal, the procuring ag ency “did not act arbitrarily in declining to evaluate, as a condition of elig ibility , whether each [ offeror] would during performance comply with” the requirements). Under the solicitation, defendant and NaphCare assert, the B OP’s evaluation of the diversity of services proposed by

the offerors was limited to determining whether the offerors proposed diverse services, and did not ex tend to determining whether the offerors could actually supply the services they

proposed. Thus, they argue, the B OP was not required to consider ex trinsic evidence pertaining to the availability

of the proposed services. Defendant further contends that its position is supported by the solicitation’s incorporation of F AR 52.212-4, which places the risk of not being able to provide the services offered in the proposal on the contract awardee. According to defendant, this clause renders irrelevant any

inability of NaphCare to supply , as it offered in its proposal, behavioral health services at [

. . .]

. Defendant’s and NaphCare’s arg uments are unavailing . As an initial matter, notwithstanding the fact that the Performance W ork Statement described the “necessary services

- 21-. . . in terms of output rather than specific task assig nments,” AR 23, offerors were required to indicate, on the Technical Proposal Summary Sheets, what services each of their proposed hospital networks offered and whether the offerors were ex cluding from their proposals any of the services offered by

the hospital networks. B y identifying the services they were ex c luding from their proposals, the offerors were affirmatively representing

that all of the nonex cluded services offered by

the hospital networks would be available to USP Atlanta. Consequently , whether a hospital network would actually supply a particular service–such as behavioral health services–for USP Atlanta’s inmates was material to the B OP’s evaluation of whether the offerors proposed diverse services.

W h en the B OP received the offerors’ final proposal revisions, it became aware that [ . . .] mig ht not be able to provide behavioral health services to USP Atlanta’s inmates. However, NaphCare did not ex clude behavioral health services from these facilities in its proposal. I n lig ht of the information in its possession, the B OP should have reopened discussions to ascertain whether, as NaphCare represented, [ . . .] would provide behavioral health services to USP Atlanta’s inmates. The B OP’s failure to do so rendered its comparative evaluation of the final proposal revisions–in which, based solely on the difference in behavioral health services offered by ACH and NaphCare, it both penaliz ed ACH for failing to offer services as diverse as those offered by

NaphCare and rewarded NaphCare for offering services more diverse than those offered by

ACH–unreasonable.

The F ederal Circuit precedent relied on by defendant and NaphCare in support of their contentions is factually

disting uishable from this case. B o th Allied Technology Group and Per Aarsleff concerned situations in which an offeror’s proposal (1) included a representation that the proposal met the solicitation’s technical requirements and (2) contained other statements that alleg edly rebutted the representation of technical compliance. See Per Aarsleff, 829 F .3d at 1314-15 (indicating that the offeror represented that it would comply with all of the requirements set forth in the Performance W ork Statement, which included the requirement to max imiz e the use of Danish subcontractors, but also stated that its American teaming partner would perform all of the requirements of the Performance W ork Statement); Allied Tech. Grp., 649 F .3d at 1324 (indicating that the offeror certified its compliance with Section 508 of the Rehabilitation Act but also provided that it was “g enerally compliant with ex ceptions to the relevant Section 508 requirements”). I

n both cases, the issue was whether it was permissible for the procuring ag ency to accept an offeror’s representation of technical compliance notwithstanding other information contained in the offeror’s technical proposal. Per Aarsleff, 829 F .3d at 1314-16; Allied Tech. Grp., 649 F .3d at 1330-32.

I n contrast, the issue in this bid protest is not whether NaphCare could comply with the requirements set forth in the solicitation–the solicitation did not specify any services that offerors were required to propose. Rather, this bid protest concerns the accuracy of the offerors’ conflicting representations that certain services described in their proposals were available to federal inmates. Given the offerors’ conflicting representations, the B OP could not accurately assess or compare the diversity of services offered by

ACH and NaphCare without ascertaining

- 22-whether ACH correctly ex c luded behavioral health services at [ . . .] from its proposal and whether NaphCare could actually provide the behavioral health services it offered in its proposal. Thus, it was arbitrary

and capricious for the B OP to penaliz e ACH for declining to offer services, while simultaneously

rewarding NaphCare for offering those same services, without determining whether those services are available at all. 1 0 See also AAA Eng ’g & Drafting , I nc., B -250323, 1993 W L 116107, *4 (Comp. Gen. J an. 26, 1993) (“[ A] n ag ency may consider information bearing on a proposal that comes to lig ht after the submission of proposals. To require an ag ency to ig nore information . . . which sug g ests that an offeror may not perform or intends to perform in a manner different from that reflected in a technically acceptable offer, would be unfair to both the ag ency

and other competitors, and thus inconsistent with the competitive procurement sy stem.” (citations omitted)).

F urthermore, the B OP’s failure to resolve the conflict between ACH’s and NaphCare’s proposals prejudiced ACH. I n its Source Selection Decision, the B OP concluded that NaphCare’s proposal represented the best value because even thoug h it proposed “slig htly ” hig her prices than ACH, it offered more diverse services and better enhancements than ACH. I f, as ACH asserts, ACH and NaphCare actually offered similarly

diverse services, then the B OP’s tradeoff would be between the enhancements offered by NaphCare versus the “slig h tly ” lower prices offered by

ACH–in a competition where price was approx imately twice as important as the technical factors as a whole, and approx imately eig ht times as important as each technical subfactor individually

. See AR 64 (ex plaining the relative importance of the evaluation factors); infra Section I I .D.3 (same). Given that the B OP’s tradeoff analysis mig ht have been significantly affected by

the offerors proposing similarly diverse services, there was a reasonable likelihood that ACH would have been awarded the contract had the B OP addressed the conflict between ACH’s and NaphCare’s proposals and resolved that conflict in ACH’s favor.

1 0 I t appears that the only way that ACH could have avoided being penaliz ed for failing to offer services as diverse as those offered by NaphCare was to indicate on its Technical Proposal Summary

Sheets for [ . . .] that those facilities offered behavioral health services and that it was not ex cluding those services from its proposal. Of course, if ACH made such representations while believing them to be false, it would have been ly ing to the B OP in its proposal. And, if ACH was awarded the contract and those representations were later revealed to be false, ACH could face serious consequences, such as a default termination, a neg ative performance evaluation, or debarment. Thus, althoug h defendant contends that the B OP was protected by

requiringthe contract awardee to reimburse the B OP if it could not provide an offered service, an offeror, like ACH, is left unprotected if it represents that it can provide a service and then, upon being awarded the contract, is unable to deliver. That an offeror could be placed in a situation where it can only succeed by

misleading the procuring ag ency is antithetical to a fair and ethical procurement process. See F AR 1.102(b)(3) (requiring procurements to be conducted “with integrity , fairness, and openness”); F AR 1.102-2(c)(3) (“All contractors and prospective contractors shall be treated fairly . . . .”).

- 23-2 . Consideration of Inf orm ation Regarding the Need f or Behavioral Health Services ACH’s other arg

ument concerning behavioral health services–that the B O P failed to consider important information reg ardingUSP Atlanta’s need for behavioral health services– lacks merit. According

to ACH, the B OP should have considered the fact that for the last six y ears, USP Atlanta has never requested outpatient facility behavioral health services for an inmate, as well as the fact that the availability of outpatient facility

behavioral health services was irrelevant to the ex tent that such services are offered at the institution, given that USP Atlanta’s preference is to treat inmates at the institution. Defendant and NaphCare counter that the B OP was entitled to declare in the solicitation the services it wanted a contractor to provide, even if it had not used such services in the past. Defendant and NaphCare are correct. Procuring ag encies are entitled to determine what services they

want to acquire without reg ard to either the services they utiliz ed in the past or the opinion of an offeror reg ardingthe ag ency ’s needs. See Savantag e F in. Servs., I nc. v. United States, 595 F .3d 1282, 1286 (F ed. Cir. 2010); CHE Consulting , I nc. v. United States, 552 F .3d 1351, 1354 (F ed. Cir. 2008); Savantag e F in. Servs., I n c. v. United States, 86 F ed. Cl. 700, 706 (2009), aff’d, 595 F .3d at 1282. Thus, that USP Atlanta has not requested outpatient facility behavioral health services over the past six y ears and would be able to arrang e for its inmates to receive behavioral health services within its confines do not preclude the B OP from seekingto acquire outpatient facility behavioral health services under the present solicitation or considering whether the offerors included such services in their proposals during its evaluation.

C . The BOP ’s Discussions With ACH

ACH nex t argues that the B OP failed to conduct meaning ful and equitable discussions with respect to ACH’s proposed long -term care facilities and the offerors’ proposed prices. Guidelines for conducting discussions are set forth in the F A R. According to the F AR, discussions “are undertaken with the intent of allowing the offeror to revise its proposal,” F AR 15.306(d), with the “primary objective of . . . max imiz [ ing ] the Government’s ability to obtain best value,” F AR 15.306(d)(2). “At a minimum,” the procuring ag ency must indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not y et had an opportunity

to respond. The contracting officer also is encourag ed to discuss other aspects of the offeror’s proposal that could, in the opinion of the contracting officer, be altered or ex

p lained to enhance materially

the proposal’s potential for award. However, the contracting officer is not required to discuss every area where the proposal could be improved.

F AR 15.306(d)(3).

- 24-Procuringag encies may not favor “one offeror over another” when conducting discussions. F AR 15.306(e)(1). Consequently , althoug h procuringag encies should tailor discussions to each offeror’s proposal, F AR 15.306(d)(1), and are not required to conduct identical discussions with each offeror, W o rldTravelService v. United States, 49 F e d. Cl. 431, 440 (2001), they

should not “inform some offerors of a concern . . . while stay ing silent with respect to identical issues in other offerors’ proposals,” Ashbritt, I nc. v. United States, 87 F ed. Cl. 344, 372 (2009).

F urther, for discussions to be meaning f u l, they must “g enerally

lead offerors into the areas of their proposals requiring amplification or correction, which means that discussions should be as specific as practical considerations permit . . . .” SRS Techs., B -254425 et al., 1994 W L 576118, at *3 (Comp. Gen. Sept. 14, 1994), quoted in Advanced Data Concepts, I nc. v. United States, 43 F ed. Cl. 410, 422 (1999), aff’d, 216 F .3d at 1054. However, the procuring ag ency “need not discuss every

aspect of the proposal that receives less than the max imum score or identify

relative weaknesses in a proposal that is technically acceptable but presents a less desirable approach than others.” Dev. Alts., I nc., B -279920, 1998 W L546017, *5 (Comp. Gen. Aug . 6, 1998), quoted in ACRA, I nc. v. United States, 44 F ed. Cl. 288, 295 (1999). Ultimately , the scope of discussions is left to the procuring ag e ncy ’s discretion. See F A R 15.306(d)(3); B a nknote, 56 F ed. Cl. at 384.

1. Discussions Related to ACH’s P roposed Long-Term Care F acilities

ACH first contends that the B OP should have conducted discussions reg ardingits offering o f

services at long -term care facilities to render those discussions meaning ful and equal. Specifically , ACH observes that the B OP identified the long -term care facilities offered by ACH [ . . .] when it evaluated ACH’s technical proposal, but then failed to ask ACH to ex plain its pricing of the services at those facilities before concluding in the Source Selection Decision that the lack of pricing

information precluded it from determining the value of the facilities. According to ACH, this failure deprived the discussions of meaning . ACH further arg ues that discussions were unequal because the B OP did not raise any issues reg ardingits proposed long

term care facilities, while at the same time discussing with NaphCare three pricing weaknesses and NaphCare’s proposed [ . . .]

. As noted by

defendant and NaphCare, the B OP was not required to discuss the pricing of services at ACH’s proposed long -term care facilities with ACH, as it was not identified as a sig nificant weakness or deficiency of ACH’s proposal. Rather, whether to conduct such discussions was within the B OP’s discretion. In ex ercisingthat discretion, the B OP was not required to raise an issue if the proposal was otherwise technically acceptable, and ACH’s offer to provide the services of long -term care facilities had no effect on the technical acceptability of its proposal because the B OP had not soug ht to procure long -term care in the solicitation.
Moreover, the B OP’s discussions with NaphCare reg ardingthree pricing weaknesses and the proposed [ . . .] did not oblig ate the B OP to discuss ACH’s proposed long

- term care facilities

- 25-with ACH. I f, duringdiscussions, a procuringag ency raises an issue with one offeror, and the

identical issue is implicated by another offeror’s proposal, it must also raise that issue with the second offeror. However, the pricing weaknesses identified by the B OP in NaphCare’s proposal pertained to NaphCare offering prices for services described in the solicitation that the B OP deemed to be too hig h; in contrast, ACH did not address the pricing for its proposed long -term care facilities in its proposal at all, and long -term care was not described in the solicitation as a service that the B OP was seeking to acquire. Similarly , NaphCare offered [ . . .] to provide services described in the solicitation, while ACH offered long -term care facilities to provide services bey

ond what was described in the solicitation.

I n sum, with respect to ACH’s proposed long -term care facilities, discussions were neither lacking

in meaning nor unequal.

2. Discussions Related to P r icing

ACH also contends that the B OP’s price-related discussions were unequal because althoug h the B OP advised NaphCare that it considered NaphCare’s proposed prices in three categ ories to be weaknesses, it did not advise ACH that ACH should lower any of its proposed prices. Defendant and NaphCare respond that the there was no need for the BOP to address ACH’s pricingduring discussions because ACH offered the lowest overall price. Defendant further asserts that the B OP properly focused its attention on the three pricing categ o r ies in which NaphCare offered noticeably hig her prices than ACH. 1 1 F inally , defendant arg u es that the B OP provided ACH with the opportunity to lower its proposed prices when it invited the offerors to amend their proposals in any way they deemed necessary

in their final proposal revisions.

1 1 ACH rejects defendant’s intimation that the B OP’s price-related discussion topics were based solely

on the B OP’s comparison of ACH’s and NaphCare’s proposed prices. Rather, ACH asserts that the price-related weaknesses that the B OP raised with NaphCare during discussions were based on the price evaluation that the B OP performed before it established the competitive rang e –in which it evaluated all of the offerors’ proposed prices–and therefore the B OP’s identification of NaphCare’s pricing weaknesses was not based solely on a comparison of the prices offered by

ACH and NaphCare. Consequently , ACH sug g ests that the B OP should have identified duringdiscussions the instances in which ACH’s proposed prices were hig h er than those proposed by

any of the offerors, not just NaphCare. The court rejects ACH’s sug g estion. The B OP’s price evaluation document–dated F ebruary 28, 2017–includes a table comparing the prices proposed by each offeror in each categ ory . AR 483-84. The B OP established the competitive rang e on that same date, id. at 498-99, and did not initiate discussions with ACH and NaphCare until March 6, 2017, id. at 501-04. I t is entirely

reasonable to infer that the B OP considered only

the prices proposed by

ACH and NaphCare when formulating its discussion questions. I n

fact, it would have made no sense for the B OP to advise ACH that one of its proposed prices was hig

her than a price proposed by an offeror whose proposal had been
ex c luded from the competition.

- 26-As defendant and NaphCare note, when the B OP evaluated the offerors’ initial business

proposals, it found ACH’s total proposed price to be lower than NaphCare’s total proposed price. I t therefore was reasonable for the B OP to raise pricing issues with NaphCare, but not ACH, during discussions. Moreover, it was within the B OP’s discretion to determine that ACH’s proposed [ . . .]

. I n

short, because the discussion topics were tailored to the offerors’ proposals, price-related discussions were not unequal.

D. The BOP ’s Source Selection Decision

F inally , ACH challeng e s the reasonableness of the B O P’s Source Selection Decision on three g rounds. The court addresses each g r ound in turn.

1. The BOP ’s P rice Scoring Methodology

F irst, ACH asserts that the price scoring methodolog y

described in the solicitation and used by the B OP to determine which offeror proposed the lowest price was inadequate for performing

a best value tradeoff analy sis because the methodology did not allow the B O P to ascertain the mag

nitude of the differences in the proposed prices. I n support of its argument, ACH analog iz es the total pricingscores calculated by the B OP to adjectival rating s, which are to be used by

procuringag encies only

as g uides in evaluatingproposals on nonprice criteria. The methodolog y

that the B OP planned to use to assess the offerors’ proposed prices was clearly set forth in the solicitation. Althoug h it is true that the B OP did not indicate that it would use the total pricing scores it calculated under that methodolog y in its best value tradeoff analy sis, that omission was apparent on the face of the solicitation. I n other words, the purported defect was patent. See Per Aarsleff, 829 F .3d at 1312 (“A defect is patent if it is ‘an obvious omission, inconsistency

or discrepancy

of sig nificance.’” (quoting E.L . Hamm & Assocs., Inc. v. Eng land, 379 F .3d 1334, 1339 (F ed. Cir. 2004)). Consequently , as arg ued by defendant and NaphCare, ACH should have raised its concern reg ardingwhat price information the B OP intended to use to perform its tradeoff analy sis before the due date for submitting proposals. See B lue & Gold F leet, L .P. v. United States, 492 F .3d 1308, 1312-16 (F ed. Cir. 2007) (holdingthat a protestor waives a challeng e to the terms of a solicitation unless it raises the challeng e prior to the deadline for the submission of proposals). B ecause it failed to do so, ACH waived its ability to raise its objection in this court. See id.; accord DGR Assocs., I nc. v. United States, 690 F

. 3d 1335, 1343 (F ed. Cir. 2012) (“[ I ] f there is a patent, i.e., clear, error in a solicitation known to the bidder, the bidder cannot lie in the weeds hoping to g et the contract, and then if it does not, blindside the ag ency

about the error in a court suit.”).

2. The BOP ’s Evaluation of NaphCare’s P roposed P rices ACH’s second challeng e to the Source Selection Decision concerns the B OP’s evaluation of the prices proposed by NaphCare in its final proposal revision. Specifically , it contends that the B OP failed to notice, or purposely disreg arded, the fact that after it advised NaphCare during

- 27-discussions that it considered NaphCare’s proposed prices for three of the pricing categ ories to be weaknesses, NaphCare actually increased its proposed price in one of the identified categ ories, did not chang e its proposed price for another of the identified categ ories, and raised its proposed price for a fourth categ ory –the categ ory

that was most heavily

weig hted in determining the offeror with the lowest proposed price overall. ACH further contends that when the B OP analy z ed whether NaphCare’s proposed prices were fair and reasonable, it improperly compared NaphCare’s proposed prices to the prices proposed by the offerors whose proposals were eliminated from the competitive rang e. The court agrees with defendant and NaphCare that neither of ACH’s arg uments has merit. W ith respect to ACH’s first contention, the B OP evaluated the prices proposed by NaphCare in its final proposal revision in accordance with the procedures for evaluating prices described in the solicitation. It makes no difference that those proposed prices were hig her than, lower than, or equal to the prices set forth in NaphCare’s initial proposal. W ith respect to ACH’s second contention, the B OP evaluated whether NaphCare’s proposed prices were fair and reasonable using

the mechanism required by the F AR: a price analy sis. See F A R 15.404-1(a)(2) (directingprocuringag encies to perform a price analy sis to determine the fairness and reasonableness of proposed prices if offerors are not required to submit certified cost or pricing data). One of the preferred techniques for performing a price analy sis is to compare “proposed prices received in response to the solicitation.” F AR 15.404-1(b)(2)(i); see also F AR 15.305(a)(1) (providing

that a procuring

ag ency ’s “comparison of the proposed prices will usually satisfy the requirement to perform a price analy sis”). The F AR does not prohibit including in that comparison the prices proposed by offerors whose proposals were not included in the competitive rang e. Indeed, ACH does not cite any leg al authority

for its contention that such prices could not be considered in a price analy sis.

3. The BOP ’s Best Value Tradeof f Analysis ACH’s final challeng e to the Source Selection Decision is that the B OP’s best value tradeoff analysis was flawed because it was based on an improper evaluation of the offerors’ technical proposals (namely , the diversity of the offerors’ proposed services), and because the B O P deviated from the evaluation scheme set forth in the solicitation by not g iving price the appropriate weig

ht. Defendant and NaphCare respond that the B OP has broad discretion in determining which proposal offers it the best value, and properly ex e rcised that discretion. According

to the F AR, the competitive acquisition process is “designed to foster an impartial and comprehensive evaluation of offerors’ proposals, leading to selection of the proposal representing

the best value to the Government . . . .” F AR 15.002(b). “‘B est value’ means the ex pected outcome of an acquisition that, in the Government’s estimation, provides the g reatest overall benefit in response to the requirement.” F AR 2.101. A best value “tradeoff process is appropriate when it may be in the best interest of the Government to consider award to other than the lowest priced offeror or other than the hig hest technically

rated offeror.” F AR 15.101-1(a).

- 28-A procuring ag ency ’s award decision must “be based on a comparative assessment of proposals ag ainst all source selection criteria in the solicitation.” F AR 15.308; accord F AR 15.304(a), (d). I

n documenting its award decision, the procuring ag ency must describe its “rationale for any

business judg ments and tradeoffs made or relied on . . . , including benefits associated with additional costs.” F AR 15.308. Ultimately , procuringag e ncies “have substantial discretion to determine which proposal represents the best value for the g overnment.” E.W

. B liss, 77 F .3d at 449. Consequently , “where ag e ncy officials reasonably

and properly

ex ercise their discretion when conducting a best value analy sis, the Court will not disturb an ag ency award.” B lackwater L odg e & TrainingCtr., I nc. v. United States, 86 F ed. Cl. 488, 514 (2009). As an initial matter, the court has already concluded that the B OP’s evaluation of the diversity of services proposed by

the offerors was arbitrary and capricious and prejudiced ACH. Thus, ACH’s challeng e to the B OP’s best value tradeoff analy sis is sustained on that g round. The court cannot, however, sustain ACH’s other challenge to the B OP’s best value tradeoff analysis–that the B OP did not accord price sufficient weig ht. I n the solicitation, the B O P advised offerors that when conducting its tradeoff analy sis, it would consider the evaluation factors and subfactors in accordance with the following rules:

• Price is approx imately equal to the technical and past performance factors combined.

• The technical factor is equal to the past performance factor.

• The four technical subfactors are of equal importance. Thus, price was approx imately twice as important as the technical factors as a whole, and approx imately

eig ht times as important as each technical subfactor individually . According to ACH, in performingits tradeoff analy sis, the B OP undervalued price and overvalued the technical factor. Specifically, it contends that because price was twice as important as the technical factor, and because its technical proposal was assig n ed only a slig htly lower rating

than NaphCare’s technical proposal (Satisfactory versus Satisfactory (+)), its lower-priced proposal should have prevailed in the B OP’s tradeoff analysis. ACH’s contention is appealing on its face–price was sig nificantly more important than the technical factor, and the adjectival rating ACH received for its technical proposal was only slig htly lower than the adjectival rating assig ned to NaphCare’s technical proposal. However, as ACH notes elsewhere in its motion for judg ment on the administrative record, the B OP was entitled to look bey ond the adjectival rating s to the contents of the proposals to determine whether meaning ful differences ex isted between the proposals and, if so, the ex tent of the differences. Metcalf Constr. Co. v. United States, 53 F ed. Cl. 617, 640-41 (2002); see Hy perion, I nc. v. United States, 92 F ed. Cl. 114, 119 (2010) (“The adjectival rating s are merely a g uide.”). Althoug h the adjectival rating s for the offerors’ technical proposals were similar, the B OP

- 29-emphasiz ed in its best value tradeoff analysis that NaphCare offered a g reater diversity

of services and better enhancements than ACH, and determined that these benefits outweig hed NaphCare’s slightly

hig her proposed price. 1 2 The court cannot say that the B OP’s determination, assuming that the B O P accurately assessed the diversity

of services proposed by

the offerors, reflects a misapplication of the solicitation’s factor weig hting scheme and is therefore unreasonable, especially

in lig ht of the substantial deference it must afford to the B OP’s tradeoff analy sis. 1 3

E. ACH’s Entitlem ent to Injunctive Relief

B e cause ACH has established the ex istence of a significant, prejudicial procurement error (the B OP’s failure to address the conflict between the offerors’ representations reg a rding whether [ . . .] would provide behavioral health services to USP Atlanta’s inmates), the court must address whether ACH is entitled to injunctive relief. The United States Court of F ederal Claims has the authority to award injunctive relief pursuant to 28 U.S.C. § 1491(b)(2), and is g uided in making such an award by

RCF C 65. I n determining whether to award a permanent injunction, the court must consider whether (1) the plaintiff has succeeded on the merits; (2) the plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3) the balance of hardships favors the g rant of injunctive relief; and (4) it is in the public interest to g r ant injunctive relief. PGB A, L L C v. United States, 389 F .3d 1219, 1228-29 (F ed. Cir. 2004). The protestor bears the burden of establishing the factors by a preponderance of the evidence. L ab. Corp. of Am. Holding s v. United States, 116 F ed. Cl. 643, 654 (2014); Tex tron, Inc. v. United States, 74 F ed. Cl. 277, 287 (2006). ACH has succeeded on the merits with respect to one of its claims. However, before the court can address the remaining injunctive relief factors, it must determine whether ACH waived its request for a permanent injunction.

1 2 ACH relies on the declaration prepared by Mr. Dix on that it submitted in support of its initial GAO protest to sug g est that the difference between ACH’s and NaphCare’s total proposed prices is sig nificant, not slig ht. Specifically , Mr. Dix on employ ed USP Atlanta’s actual usag e of medical services under the incumbent contract to translate the offerors’ proposed prices into dollar amounts, and determined that NaphCare’s total proposed price was $1.1 million more than ACH’s total proposed price. W h ile Mr. Dix on’s calculations may be accurate, the court declines to consider arg

uments or evidence concerning how the offerors’ proposed prices translate into dollar amounts because, pursuant to the solicitation, the B OP was not required to–and did not–evaluate the offerors’ proposed prices in terms of dollar amounts.

1 3 Of course, the court has determined that the B OP may not have accurately

assessed the diversity of services proposed by

the offerors. See supra Section I I .B .1. Consequently , if ACH and NaphCare actually

offered similarly

diverse services, then the B OP–apply ing the factor weig hting scheme set forth in the solicitation–mig ht reach a different conclusion in its best value tradeoff analysis. See id.

- 30-1. Waiver of Request f

or P erm a nent Injunction

I n its complaint, ACH requested, as part of its pray er for relief, a permanent injunction that “prohibited the [ B OP] from procuring any work from the contract awarded to Naphcare under the Solicitation, until the [ B OP] has held Discussions with ACH, re-evaluated proposals in accordance with the terms of the Solicitation, and made new best value determinations after such re-evaluation.” Compl. Pray er for Relief ¶ 3. However, it did not address the irreparable injury , balance of hardships, and public interest factors it was required to establish to obtain a permanent injunction. F urthermore, in its motion for judg ment on the administrative record, ACH did not reassert its request for a permanent injunction or address the injunctive relief factors. Defendant and NaphCare remarked upon this deficiency in their responses/cross-motions, and arg ued that ACH’s failure to offer arg ument and evidence in support of an award of injunctive relief precluded ACH from establishing entitlement to such an award. Nevertheless, defendant and NaphCare addressed the injunctive relief factors (and defendant submitted a declaration from the SSA describing the harm that the B O P would suffer from an award of injunctive relief 1 4 ) to argue that ACH was not entitled to a permanent injunction. I n its reply /response, ACH conceded that it failed to address all of the injunctive relief factors and attempted to cure its oversig ht by presentingargument reg ardingeach of the factors (but not any evidence in support its alleg ation of harm). Defendant and NaphCare, in their replies, arg ued that ACH had not cured its initial failure to address the injunctive relief factors, but even if it had, it failed to establish entitlement to a permanent injunction. Ultimately , after oral arg ument and at the court’s direction, ACH filed a declaration in support of its request for a permanent injunction, and defendant and NaphCare filed responses to that declaration. Normally , the failure to raise an arg ument in an openingbrief constitutes the waiver of that argument. SmithKline B eecham Corp. v. Apotex Corp., 439 F .3d 1312, 1319 (F ed. Cir. 2006) (“[ A] rg uments not raised in the openingbrief are waived.”); Novosteel SA v. United States, 284 F .3d 1261, 1274 (F ed. Cir. 2002) (“Raisingthe issue for the first time in a reply brief does not suffice; reply

briefs reply

to arguments made in the response brief–they do not provide the moving party

with a new opportunity

to present y et another issue for the court’s consideration.”). Courts, however, possess the “discretion to consider arg uments that are not properly raised in the opening brief.” SmithKline B eecham, 439 F .3d at 1320 n.9. I n fact, this discretion has been ex ercised in circumstances similar to those presented in this bid protest. I n I ronclad/EEI

v. United States, the protestor did not address the factors for obtaining a permanent injunction in its motion for judg ment on the administrative record, “but instead discussed them in its response brief only

. ” 78 F ed. Cl. 351, 358 (2007). The court recog niz ed that the application of the waiver rule was not mandatory , and found that “because defendants were able to fully

1 4 I n his declaration, the SSA invoked 28 U.S.C. § 1746, which allows for the submission of unsworn declarations made under the penalty of perjury . However, the SSA did not declare that his statements were true and correct “under penalty of perjury ,” as 28 U.S.C. § 1746 requires. Nevertheless, the court finds that this oversig ht does not detract from the weig ht of the declaration.

- 31-respond to [ the protestor’s] contentions reg ardingpermanent injunctive relief in their reply briefs, the concept of waiver . . . [ was] inapplicable.” I d.

I n this bid protest, ACH addressed the factors for obtaining a permanent injunction in its reply /response, and defendant and NaphCare had the opportunity to–and did in fact–respond to ACH’s contentions in their replies. 1 5 I n addition, defendant and NaphCare preemptively addressed the factors in their responses/cross-motions, and responded to the declaration that ACH filed in support of its request for a permanent injunction. Thus, neither defendant nor NaphCare would be prejudiced by the court considering

ACH’s request for a permanent injunction. According ly , the court finds that ACH has not waived its request and therefore considers the remaining

injunctive relief factors.

2. Irreparable Injury

W ith respect to the irreparab le injury factor, “[ t] he relevant inquiry . . . is whether plaintiff has an adequate remedy in the absence of an injunction.” Mag ellan Corp. v. United States, 27 F ed. Cl. 446, 447 (1993); see also Young er v. Harris, 401 U.S. 37, 43-44 (1971) (noting that “the basic doctrine of equity jurisprudence [ is] that courts of equity should not act . . . when the movingparty has an adequate remedy

at law and will not suffer irreparable injury if denied equitable relief”). ACH contends that it would be irreparably injured absent a permanent injunction because it would be deprived of a fair opportunity to compete for the contract. ACH also argues that it would be irreparably injured absent a permanent injunction because it would lose the revenue it would receive had it been awarded the contract, and the revenue it receives from the incumbent contract amounts to a larg e percentag e of its total revenue–46% of its total revenue in 2016 and 35% of its total revenue in 2017. Defendant and NaphCare counter that the harms described by

ACH are insufficient to establish an irreparable injury

. This court has recog

niz ed that a lost opportunity to compete for a contract–and the attendant inability

to obtain the profits ex pected from the contract–can constitute irreparable injury

. 1 6 See, e.g

. , Akal Sec., I nc. v. United States, 87 F ed. Cl. 311, 319 (2009); Heritag e of Am., L L C v. United States, 77 F ed. Cl. 66, 78 (2007); Overstreet Elec. Co. v. United States, 47 F ed. Cl. 728, 743 (2000); see also Serco I nc. v. United States, 81 F ed. Cl. 463, 501-02 (2008) (observingthat when “the only other available relief–the potential for recovery of bid preparation costs–would not compensate [ the protestors] for the loss of valuable business,” such a “loss, deriving from a lost opportunity to compete on a level play ing field for a contract, has been found sufficient to prove irreparable harm”). B ecause ACH would lose the fair opportunity to compete

1 5 Defendant and NaphCare also had the opportunity to address ACH’s request for a permanent injunction duringoral arg ument, but chose not to do so.

1 6 The court recog

niz es that lost profits are distinct from lost revenue. However, if lost profits can constitute an irreparable injury , then the loss of the revenue that g enerates those profits can also constitute an irreparable injury

.

- 32-for the contract and a sig nificant percentag e of its annual revenue absent a permanent injunction, the court finds that ACH has established an irreparable injury

. 3. Balance of Harm s

I n addition to considering whether a protestor would suffer an irreparable injury absent a permanent injunction, “the court must weig h the irreparable harm plaintiff would suffer without an injunction ag ainst the harm an injunction would inflict on defendant and defendantintervenor.” Progressive Indus., I nc. v. United States, 129 F e d. Cl. 457, 485 (2016). On the one hand, ACH arg

ues that the harm it would suffer absent a permanent injunction–the loss of a sig nificant percentag e of its total revenue–outweig hs the harms that the B OP and NaphCare mig ht incur if such an injunction issued because defendant has no rig ht to award a contract, and NaphCare has no rig

ht to be awarded a contract, if the evaluation of proposals was arbitrary and capricious. On the other hand, defendant contends that the balance of harms weig hs in the B O P’s favor because if a permanent injunction issues, the B OP (1) would not be able to avail itself of the enhancements offered by NaphCare in its proposal, and (2) would continue to lack any g uarantee that medical services would be provided bey o nd the ex piration of the short-term purchase orders currently being used to obtain the services from ACH, leading to potential safety and security

issues. Defendant submitted a declaration from the SSA in support of its alleg ations of the B OP’s harms, and contends that ACH’s declaration fails to address the contention raised in the SSA’s declaration that the B OP would be harmed by ACH not offering behavioral health services at firm-fix ed prices. NaphCare, in turn, asserts that it would be harmed by a permanent injunction because it would be deprived of both its ex pected profits under the contract and the
ex p erience arising

from a commercial relationship with the B OP.

I n response to defendant’s contention reg ardingthe dang ers of rely ing on short-term purchase orders to provide medical services to USP Atlanta, ACH avers that it has been providing comprehensive medical services to USP Atlanta for approx imately six y ears (and on a month-to-month basis for the last y ear) without any problems, and represents that it would not abandon the work at USP Atlanta and foreg o a larg e percentag e of its total revenue. I t also argues that defendant provided no evidence that the prices paid by the B OP under the short-term purchase orders are any hig her than the prices that the B OP would pay to NaphCare under the new contract. W ith respect to NaphCare’s alleg ation of harm, ACH arg ues that NaphCare is better positioned to absorb the effects of a permanent injunction because NaphCare is a larg e business, 1 7 while ACH is a service-disabled, veteran-owned small business.

B e cause ACH represents that it would not cease providing medical services to USP Atlanta (voluntarily

depriving itself of a larg e percentag e of its total revenue) upon the issuance of a permanent injunction, and because NaphCare would not necessarily lose its ex pected profits

1 7 ACH’s statement that NaphCare is a larg e business is based on its review of NaphCare’s reg istration information in the federal g overnment’s Sy stem for Award Manag ement database, which is available at http://www.sam.g o v.

- 33-or ex perience if a permanent injunction issues (because it still may be awarded the contract), the harm that ACH would suffer–the loss of the fair opportunity to compete for the contract and a sig nificant percentag e of its revenue–absent a permanent injunction outweig hs the harms alleg ed by the B OP and NaphCare.

4. P ublic Interest

F inally , when “employ

ing the ex traordinary

remedy of injunction,” a court “should pay particular reg ard for the public consequences” of doing so. W einberg er v. Romero-B a rcelo, 456 U.S. 305, 312 (1982). There is no dispute that “the public interest in honest, open, and fair competition in the procurement process is compromised whenever an ag ency abuses its discretion in evaluatinga contractor’s bid.” Overstreet Elec., 47 F ed. Cl. at 744; accord B ona F ide Cong lomerate, I

nc. v. United States, 96 F ed. Cl. 233, 242 (2010) (notingthe “overriding public interest in preserving the integ rity

of the procurement process”). “However ‘there is a countervailingpublic interest in minimiz ing disruption [ to the ag e ncy ] .’” Akal Sec., 87 F ed. Cl. at 321 (quoting Heritag e of Am., 77 F ed. Cl. at 78); accord Aero Corp., S.A. v. United States, 38 F ed. Cl. 237, 242 (1997) (“[ A ] procuringag ency should be able to conduct procurements without
ex c essive judicial infring ement upon the ag ency ’s discretion.”).
ACH argues that the issuance of a permanent injunction would serve the public interest because the B OP failed to comply with the applicable procurement law. ACH further arg ues that there is a public interest in promoting the development of service-disabled, veteran-owned small businesses like itself. Defendant, in turn, contends that a permanent injunction would be contrary to the public interest because the B OP would be deprived of the technical advantag es described in NaphCare’s proposal. And, NaphCare asserts that there is a public interest in avoiding delay s in the procurement process.

B e cause the B OP acted arbitrarily and capriciously

in evaluatingACH’s and NaphCare’s technical proposals, the procurement process was compromised. Thus, ACH has established that the public interest would be served by the issuance of a permanent injunction.

5. Conclusion ACH has succeeded on the merits of one of its claims and has established, by a preponderance of the evidence, the remaining factors for awarding

injunctive relief. According ly , the court g r ants ACH’s request for a permanent injunction.

III. CONCLUSION

F or the reasons set forth above, the court finds that injunctive relief is appropriate in this bid protest. Therefore:

- 34-• ACH’s motion for judg ment on the administrative record is G R ANTED IN P ART and D ENIED IN P ART ;

• Defendant’s and NaphCare’s cross-motions for judg ment on the administrative record are G RANTED IN P ART and DENIED IN P ART ;

• NaphCare’s motion to strike portions of the administrative record is DENIED AS MOOT ; 1 8 and

• The B OP is ENJOINED from commencing performance on its contract with NaphCare until it has reopened discussions to ascertain whether NaphCare could actually

provide behavioral health services to USP Atlanta’s inmates at [

. . .] ; 1 9 reevaluated the proposals in lig h t of the discussion responses; and made a new source selection determination, ensuring that each factor is accorded the appropriate weig ht. The clerk is directed to enter judg ment according ly

. The court has filed this ruling under seal. The parties shall confer to determine ag reed-to proposed redactions. Then, by no later than Monday, April 16, 2018 , the parties shall file a joint status report indicating their ag reement with the proposed redactions, attaching a copy of those pages of

the court’s ruling containing proposed redactions, w ith all proposed redactions clearly indicated

.
F urther, the court reminds the parties of their oblig ation under parag raph 12 of the protective order filed on J a nuary 18, 2018, to file redacted versions of protected documents for the public record. I f the parties have not already filed redacted versions of their motions and supporting briefs, they

shall file a joint status report by no later than Monday, April 30, 2018 , ex p laining the reason for the delay

. IT IS SO ORDERED. s/ Marg aret M. Sweeney MARGARET M. SW EENEY J udg e

1 8 The court notes that it did not consider the documents that NaphCare soug ht to have removed from the administrative record in its analy sis of ACH’s claims.

1 9 The court sug g ests that the B OP request evidence from both ACH and NaphCare reg ardingthe basis for their representations that they can/cannot supply

behavioral health services at the facilities at issue.

- 35-