In the United States Court of Federal Claims

No. 20-835C

(Filed Under Seal: October 28, 2020)

(Reissued for Publication: November 19, 2020)

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WISCONSIN PHYSICIANS SERVICE 

INSURANCE CORPORATION,

Plaintiff,

v.

THE UNITED STATES,

Defendant,

and

NATIONAL GOVERNMENT SERVICES, 

INC.,

Defendant-Intervenor.

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Postaward Bid Protest; Cross-Motions for 

Judgment on the Administrative Record;

Standing; Evaluation of Proposals; 

Technical Acceptability; Disparate

Treatment Allegations; OCI Mitigation

Daniel P. Graham, Washington, DC, for plaintiff.

Rafique O. Anderson, United States Department of Justice, Washington, DC, for defendant.

Anuj Vohra, Washington, DC, for defendant-intervenor.

OPINION AND ORDER

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 The court issued this Opinion and Order under seal on October 28, 2020, and directed 

the parties to submit proposed redactions by November 17, 2020. The parties filed a status 

report in which they indicate that certain redactions are agreed to by all parties. Those redactions 

are acceptable to the court. Defendant and defendant-intervenor further agreed to certain 

redactions to Section II.B.4 of this opinion, which plaintiff opposes. The court adopts the 

disputed redactions for the following primary reasons: (1) this opinion analysis section is an 

alternative review of the merits of a protest ground that has already been dismissed on standing 

grounds; (2) the topic of the analysis, the parties’ arguments concerning a conflict of interest 

mitigation plan, is fact-specific and not readily applicable to other procurements; (3) the redacted 

material would expose confidential and proprietary information in a highly competitive 

marketplace. All redactions are indicated by bracketed ellipses (“[. . .]”).
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SWEENEY, Senior Judge

In this postaward bid protest, plaintiff Wisconsin Physicians Service Insurance 

Corporation (“WPS”) contends that the Centers for Medicare and Medicaid Services (“CMS”), 

part of the United States Department of Health and Human Services, improperly eliminated the 

proposal submitted by WPS from a competition to provide Medicare Administrative Contractor 

(“MAC”) services. The awardee of the contract, National Government Services, Inc. (“NGS”), 

intervenes in this suit. WPS seeks a permanent injunction of the award to NGS. 

Before the court are cross-motions for judgment on the administrative record filed by 

WPS and the United States pursuant to Rule 52.1(c) of the Rules of the United States Court of 

Federal Claims, along with a combined motion to dismiss and cross-motion for judgment on the 

administrative record filed by NGS. For the reasons set forth below, the court grants in part and 

denies in part NGS’s motion to dismiss, grants NGS’s and defendant’s motions for judgment on 

the administrative record, and denies WPS’s motion for judgment on the administrative record 

and its request for permanent injunctive relief. 

I. BACKGROUND

A. History of the Procurement

1. Request for Proposal

CMS contracts with MACs to provide Medicare Part A and Part B claims administration 

and ancillary services; CMS divides this work among regional jurisdictions. Corrected 

Administrative R. (“AR”) 81-82, 131. On February 1, 2019, CMS issued Request for Proposal 

No. 75FCMC19R002 (“RFP”) for Jurisdiction 6 (“J6”), which includes Illinois, Minnesota, and 

Wisconsin.1

 Id. Tab 10. The contracting vehicle is a “Cost Reimbursement type contract,” with 

a primary pricing structure of Cost-Plus-Award-Fee. Id. at 1790. If all six option years are 

exercised, the awarded contract would be performed for seven years. Id. at 1798. 

The RFP was amended on March 5, 2019, and again on March 21, 2019. Id. Tabs 17-18. 

Offerors were to submit their proposals in five separate volumes: Administrative Requirements 

and Responsibility Determination; Proposal Assumptions; Technical Proposal; Business 

Proposal; and Conflict of Interest. Id. at 1879. Proposals were due on April 1, 2019. Id. at 

1878. 

2. Evaluation Scheme

CMS chose a best-value evaluation model where “[a]ward will be made to the Offeror 

whose proposal offers the best overall value to the Government.” Id. at 1915. Accordingly, the 

1

 J6 includes additional types of Medicare claims administration services for other states 

and territories. AR 173.
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RFP “permits tradeoffs among cost or price and the non-cost factors and allows the Government 

to accept other than the lowest priced proposal.” Id. The three evaluation factors in this MAC 

selection process are Technical Approach, Past Performance, and Cost/Price. Id. at 1915-16. 

The three evaluation factors are divided into two categories: (1) the technical evaluation 

of non-cost/price factors, which includes both the Technical Approach and Past Performance

factors; and (2) the Cost/Price factor. Id. To arrive at the best-value proposal, the following 

weighting scheme applies: (1) the “Technical Approach evaluation factor is more important than 

the Past Performance evaluation factor”; and (2) “Technical Approach and Past Performance, 

when combined, are significantly more important than cost or price.” Id. at 1915. For the 

non-cost/price factors, the evaluators would identify strengths, weaknesses, significant 

weaknesses, and deficiencies in the offerors’ proposals. Id. at 1192. The evaluation of the 

cost/price of proposals is not a primary issue in this protest, but that process, which does not 

produce an evaluation rating, includes “a price analysis, cost analysis, and cost realism analysis.” 

Id. at 1916.

The Past Performance evaluation factor pertains to relevant past performance information

that “is expected to demonstrate the likelihood that the prospective contract will be performed 

successfully.” Id. at 1894. Possible ratings under this factor are High Confidence, Solid 

Confidence, Satisfactory Confidence, Low Confidence, or Neutral, all tied to the level of the 

evaluators’ “expectation that the Offeror will successfully meet the contract performance 

requirements.” Id. at 1192. A Neutral rating on this factor is only assigned to offerors with “no 

record of relevant past performance.” Id.

The key evaluation factor for the disputed issues in this protest is Technical Approach. 

This factor is composed of three criteria, each of which is addressed in a separate tab in the 

offeror’s Technical Proposal volume: Program Management, Staffing Plan, and Mission 

Essential Functions (“MEFs,” or “MEF” when discussing just one element within the MEFs

evaluation criterion). Id. at 1890. The MEFs criterion is subdivided into seven MEFs: 

Implementation, Provider Enrollment, Provider Customer Service Program, Claims Processing,

Appeals, Medical Review, and Audit & Reimbursement. Id. at 1899. Possible ratings under the 

Technical Approach factor are Excellent, Good, Acceptable, and Unacceptable. Id. at 1191.

CMS would also look outside the offeror’s Technical Proposal volume by examining the 

offeror’s underlying assumptions, to better understand the offeror’s Technical Approach. Id. at 

1888-89. Much of the attention in this protest is focused on the Basis of Estimate (“BOE”) 

spreadsheet that each offeror would supply in its Proposal Assumptions volume. Id. According 

to the RFP, “the BOE and other relevant historical data available to CMS [would] be used as a

baseline tool for measuring and understanding how the Offeror proposes to perform the

[Statement of Work (“SOW”)] requirements in contrast to how the Offeror has historically 

performed MAC work or similar work.” Id. at 1888. The spreadsheet template was provided by 

CMS and many of the formulas for populating the cells of the spreadsheet were fixed and could 

not be altered. Id. Tabs 72-73. Of interest here, the data in the BOE addressed labor categories 

and workloads that staff would be assigned: “[T]he Offeror shall document all proposed labor 

categories, workload-driven and non-workload-driven estimating factors, direct labor factors, 
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proposed and historic productivity factors, and all other data required by the BOE form and its 

instructions.” Id. at 1888. Additional aspects of the BOE and the Technical Approach 

evaluation factor will be addressed in the court’s analysis below.

3. Evaluation of Proposals

Four proposals were received by CMS, all from experienced MACs: NGS, WPS, 

Palmetto GBA (“Palmetto”), and CGS Administrators, LLC (“CGS”). Id. at 2443, 3860, 6308, 

6849, 7987. A Technical Evaluation Panel (“TEP”) evaluated the offerors’ non-cost/price 

factors and rated WPS Unacceptable under Technical Approach and Low Confidence under Past 

Performance. Id. at 8101. The contracting officer (“CO”), who was also the source selection 

authority, eliminated WPS from further consideration in the competition based on her agreement 

with the TEP’s ratings. Id. Tab 32.

 

Pursuant to the CO’s decision dated February 12, 2020, WPS was the only offeror 

eliminated at this stage of the evaluation process. Id. at 7986. The CO’s elimination of WPS

was solely based on the Unacceptable rating received for WPS’s Technical Approach, and was 

not founded on WPS receiving the lowest possible rating for Past Performance: “Given the 

collective significant weaknesses and weaknesses outlined above, with the technical approach 

being more important than past performance, WPS’s technical approach has been determined 

unacceptable. Therefore, I am removing this proposal from further consideration for award, as it 

is technically unacceptable.” Id. at 8004. Much of this protest is focused on two significant 

weaknesses and an additional weakness identified in WPS’s Technical Approach; these will be 

discussed in detail below.

The record shows that WPS’s elimination from the competition came before distinct, 

additional procedures were undertaken to review the proposals of the three remaining offerors. 

Although all four proposals received a preliminary, limited cost realism analysis, id. Tab 28, a 

far more extensive cost realism analysis significantly increased the evaluated prices of the 

proposals submitted by NGS, Palmetto, and CGS, see id. at 8626 (“Cost Realism adjustments 

were not performed on Offerors[] rated Unacceptable. These Offeror[]s were removed from 

consideration for award.”). Further analysis of the costs and prices of NGS, Palmetto, and CGS, 

but not WPS, was conducted by the “Business Evaluation Panel” for this procurement. See id.

Tabs 49-51. The record shows no indication that a competitive range of proposals was 

designated, or that formal discussions were held with the offerors remaining in the competition.

CMS selected NGS for contract award as providing the best value to the government. Id.

at 8723. Of the three remaining offerors, all of which were rated at least Acceptable on 

Technical Approach and at least Solid Confidence on Past Performance, the price of NGS’s

proposal was lower than that of one competitor but higher than that of the other. Id. at 8626. 

The CO justified NGS’s higher price by noting “the nature of NGS’s technical superiority” and 

“how the strengths awarded indicate that NGS’s proposal is the lowest risk to the taxpayer while 

also adding value in terms of providing the government with innovations and efficiencies in 

performing their work.” Id. at 8723. The CO also determined that NGS had adequately 

addressed any conflict of interest (either “COI,” as used in the RFP, or “OCI,” for organizational 
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conflict of interest). See id. at 8409 (stating that NGS “has no existing unmitigated, significant 

COIs that have not been resolved and is, therefore, eligible for award”).

B. Protest History

On February 14, 2020, WPS requested a debriefing regarding its exclusion from the 

procurement; it received a written debriefing on March 6, 2020. Id. Tabs 35, 40. Subsequently, 

WPS filed a timely protest with the Government Accountability Office (“GAO”), which was 

denied on June 17, 2020.2 Id. Tabs 63-70. WPS filed the instant protest in this court on July 9, 

2020, and amended its complaint on July 30, 2020. In its amended complaint, WPS asserts five 

claims for relief: three challenging the assignment of weaknesses to its proposal, one 

challenging the assignment of a Low Confidence rating for its Past Performance, and one 

challenging CMS’s consideration of NGS’s OCIs. The parties proposed a briefing schedule so 

that the court’s ruling on WPS’s request for permanent injunctive relief would issue before 

November 13, 2020. None of the parties requested oral argument and this matter is ripe for 

decision. 

II. DISCUSSION

In their briefs, the parties address WPS’s standing to protest and WPS’s elimination from 

the competition. The court begins its analysis with the threshold issue of standing, which 

focuses on WPS’s chances for award if the procurement errors alleged in the amended complaint 

had not occurred. The court then turns to WPS’s elimination from the competition due to its 

Unacceptable rating on Technical Approach. For the next step in the analysis, the court returns 

to the question of standing because, according to NGS, if the Unacceptable rating withstands 

review, WPS has no standing for its remaining protest grounds. Finally, the court makes 

alternative findings regarding the merits of WPS’s remaining protest grounds, which are related 

to NGS’s OCIs.

 

A. Legal Standards

1. Standing

As a threshold matter, NGS moves to dismiss the entirety of WPS’s bid protest for lack 

of standing. “[T]he question of standing is whether the litigant is entitled to have the court 

decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 

(1975). Under 28 U.S.C. § 1491(b)(1), bid protests may only be brought by “interested parties.” 

To have standing, a protestor must establish that it (1) is an actual or prospective offeror and 

(2) possesses a direct economic interest in the award of the contract. CGI Fed. Inc. v. United 

States, 779 F.3d 1346, 1348 (Fed. Cir. 2015). 

2

 Due to procedural differences, the GAO protest sheds no light on the issues before the 

court.
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The test for direct economic interest in a postaward protest is whether the protestor had a 

“substantial chance” of winning the contract. Orion Tech., Inc. v. United States, 704 F.3d 1344, 

1348 (Fed. Cir. 2013) (quoting Rex Serv. Corp. v. United States, 448 F.3d 1305, 1308 (Fed. Cir. 

2006)). The protestor must show, in other words, that “it had greater than an insubstantial 

chance of securing the contract if successful on the merits of the bid protest.” Info. Tech. & 

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

In addition, to establish standing the protestor must show that it was prejudiced by the 

procuring agency’s conduct. Diaz v. United States, 853 F.3d 1355, 1358 (Fed. Cir. 2017); see 

also Info. Tech. & Applications Corp., 316 F.3d at 1319 (“[B]ecause the question of prejudice 

goes directly to the question of standing, the prejudice issue must be reached before addressing 

the merits.”); Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1370 (Fed. 

Cir. 2002) (“[P]rejudice (or injury) is a necessary element of standing.”). Thus, to demonstrate 

prejudice and standing, the protestor must establish that it had a substantial chance of contract 

award “but for the alleged error[s] in the procurement process.” Info. Tech. & Applications 

Corp., 316 F.3d at 1319 (citing Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 

(Fed. Cir. 1999)).

If an offeror is rated technically acceptable, is among the finalists for contract award, and 

has a substantial chance of contract award, it generally has standing to challenge all of the 

alleged errors made by the procuring agency. See, e.g., Cyios Corp. v. United States, 122 Fed. 

Cl. 726, 736 (2015) (concluding that the protestor, one of six finalists for award, had standing to 

challenge technical ratings, past performance ratings, and cost/price analyses), aff’d, 674 F. 

App’x 1016 (Fed. Cir. 2017). If, however, an offeror’s proposal is eliminated from the 

competition as untimely, technically unacceptable, or otherwise failing to merit consideration as 

a finalist, the offeror may only have standing to challenge the agency’s ruling on its 

elimination—if the elimination was proper, the protestor will lack standing to challenge 

subsequent alleged errors in the procurement such as the agency’s choice of the awardee among 

the finalists for contract award. See, e.g., Labatt Food Serv., Inc. v. United States, 577 F.3d 

1375, 1380-81 (Fed. Cir. 2009) (holding that an offeror that submitted an untimely proposal 

lacked standing to challenge subsequent procurement procedures); MCI Diagnostic Ctr., LLC v. 

United States, 147 Fed. Cl. 246, 275, 285 (2020) (dismissing a protest on standing grounds after

concluding that the protestor’s proposal was properly eliminated from the competition as 

technically unacceptable); Femme Comp Inc. v. United States, 83 Fed. Cl. 704, 735 (2008) 

(holding that an offeror that was properly eliminated from the competitive range lacked standing 

to challenge the agency’s contract awards). 

2. Arbitrary and Capricious Standard of Review

The parties also move for judgment on the administrative record, seeking either to 

overturn or defend CMS’s actions. The court reviews challenged agency actions in a 

procurement pursuant to the standards set forth in 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4). 

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 agency action if it is ‘arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law.’” Banknote Corp. of Am. v. United 
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States, 365 F.3d 1345, 1350 (Fed. Cir. 2004). Under the arbitrary and capricious 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 challenge brought on the first ground

“to determine whether the contracting agency provided a coherent and reasonable

explanation of its exercise of discretion, and the disappointed bidder bears a 

heavy burden of showing that the award decision had no rational basis.” “When a

challenge is brought on the second ground, the disappointed bidder must show a

clear and prejudicial violation of applicable statutes or regulations.”

Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (quoting Impresa 

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332-33 (2001)); accord

Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000) (“The 

arbitrary and capricious standard . . . requires a reviewing court to sustain an agency action 

evincing rational reasoning and consideration of relevant factors.”).

Procurement officials “are ‘entitled to exercise discretion upon a broad range of issues

confronting them’ in the procurement process.” Impresa Construzioni Geom. Domenico Garufi,

238 F.3d at 1332-33 (quoting Latecoere Int’l, Inc. v. U.S. Dep’t of the Navy, 19 F.3d 1342, 1356

(11th Cir. 1994)). Thus, the court’s review of a procuring agency’s decision is “highly

deferential.” Advanced Data Concepts, Inc., 216 F.3d at 1058; see also Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) (“The court is not empowered to

substitute its judgment for that of the agency.”). Furthermore, a “protestor’s burden of proving

that the award was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law is greater [in negotiated procurements] than in other types of bid protests.” Galen Med.

Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004). In addition, technical 

evaluation ratings produced by the procuring agency, in particular, are entitled to deference. 

E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (“[T]echnical ratings

. . . involve discretionary determinations of procurement officials that a court will not second 

guess.”); accord Goldschmitt & Assocs., LLC v. United States, 149 Fed. Cl. 401, 405 (2020)

(“[T]his Court gives great deference to ‘evaluations of proposals for their technical quality’ by 

‘an agency’s subject-matter experts.’” (quoting RX Joint Venture, LLC v. United States, 145 

Fed. Cl. 207, 213 (2019))).

“[O]verturning awards on de minimis errors wastes resources and time, and is needlessly 

disruptive of procurement activities and governmental programs and operations.” Grumman 

Data Sys. Corp. v. Widnall, 15 F.3d 1044, 1048 (Fed. Cir. 1994) (alteration in original) (quoting 

Andersen Consulting Co. v. United States, 959 F.2d 929, 932 (Fed. Cir. 1992)). Further, in 

addition to identifying “a significant error in the procurement process,” a protestor must show 

“that the error prejudiced it.”3 Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996); 

3

 Prejudice is thus measured twice if the protestor establishes that a significant error 

marred the procurement. See, e.g., L-3 Commc’ns Corp. v. United States, 99 Fed. Cl. 283, 289 
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see also Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir. 

2013) (“In a bid protest case, the inquiry is whether the agency’s action was arbitrary, capricious, 

an abuse of discretion, or otherwise not in accordance with law and, if so, whether the error is 

prejudicial.”); Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005) (holding that 

if the procuring agency’s decision lacked a rational basis or was made in violation of the 

applicable statutes, regulations, or procedures, the court must then “determine, as a factual 

matter, if the bid protester was prejudiced by that conduct”). “[T]o establish prejudice, a 

protester must show that, had it not been for the alleged error in the procurement process, there 

was a reasonable likelihood that the protester would have been awarded the contract.” Data Gen. 

Corp., 78 F.3d at 1562.

B. Analysis

1. Standing

As stated above, the court begins by addressing WPS’s standing to protest. In its 

amended complaint, WPS challenges every weakness and significant weakness assigned to its 

Technical Approach by the CO, and also challenges its Low Confidence rating on Past

Performance. None of these challenges is frivolous. NGS and defendant argue, nonetheless, that 

even if WPS had not been eliminated from the competition, it did not have a substantial chance 

of being awarded the MAC contract for J6. The court does not agree with the conclusions NGS

and defendant reach in this regard.

If WPS could persuade the court to invalidate each of the significant weaknesses and the 

weakness assigned to its Technical Approach, and also successfully challenge its Low 

Confidence rating on Past Performance, its ratings on the non-cost/price factors would be 

significantly improved. WPS also had a significant advantage over the other three offerors on 

the Cost/Price factor, at least as far as the unadjusted prices were concerned. Even assuming, in 

a but-for scenario, that the cost realism adjustment for WPS would be at the top end of the range 

of cost realism adjustments added to the prices of the remaining three offerors, WPS would still 

be the lowest-price offeror. In this best-value procurement, the price advantage, and the absence 

of the negative evaluation ratings challenged here by WPS, assure the court that WPS “had 

greater than an insubstantial chance of securing the contract if successful on the merits of the bid 

protest.” Info. Tech. & Applications Corp., 316 F.3d at 1319. The record before the court 

supports a finding that WPS, an experienced MAC, has standing to challenge its elimination 

from the J6 MAC competition. 

2. Unacceptable Rating for WPS’s Technical Approach

The key issue in this protest is whether the Unacceptable rating for WPS’s Technical 

Approach survives arbitrary and capricious review. In the agency’s Source Selection Plan, the

(2011) (“The difference between the two [prejudice standards] is that the prejudice determination 

for purposes of standing assumes all non-frivolous allegations to be true, whereas the post-merits 

prejudice determination is based only on those allegations which have been proven true.”). 
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definition of an Unacceptable rating on this factor is quite straightforward: “The Offeror 

proposed an inadequate technical approach and understanding of the SOW requirements. Risk of 

unsuccessful performance is high.” AR 1191. The rating of Unacceptable that removed WPS 

from the competition is supported by three identified weaknesses or significant weaknesses in 

the proposal submitted by WPS, and each of these negative ratings will be discussed. The 

court’s analysis begins with an examination of the assigned weakness, turns next to the 

significant weakness that receives less attention from the parties, and ends with the significant 

weakness that presents the greatest degree of complexity.

As a brief introduction to the parties’ dispute, the court provides an overview of the 

ratings received by WPS for its Technical Approach. There are three key terms used by CMS. 

First, “[a] strength adds value to the requirement and it is worthy of being noted. That part of a 

proposal . . . add[s] benefit and value to the government or is expected to increase the quality of 

the Offeror’s performance. Simply meeting the Statement of Work requirements is not

considered a strength.” Id. at 1192. Second, a weakness is “a flaw in the proposal that 

increases the risk of unsuccessful contract performance.” Id. (citing Federal Acquisition 

Regulation (“FAR”) 15.001). Third, a significant weakness is “a flaw in the proposal that 

appreciably increases the risk of unsuccessful contract performance.” Id. (citing FAR 15.001).

As stated above, the three evaluation areas that together constitute Technical Approach 

are Program Management, Staffing Plan, and MEFs. Id. at 1890. WPS’s sole assigned strength

for this factor was in Program Management for the “Medicare knowledge and experience” of its 

key personnel. Id. at 7992, 8102. For its Staffing Plan, WPS received a weakness related to that 

plan’s effect on the Provider Enrollment MEF. Id. at 7998-99. WPS received its first significant 

weakness for the Medical Review MEF. Id. at 7992-94. WPS’s other significant weakness was, 

generally speaking, for the type of labor categories assigned by WPS to complete requirements

for five of the seven MEFs, as well as for the information that supported its staffing of these 

MEFs. Id. at 7994-98. WPS’s Technical Approach was assigned no deficiencies. Id. at 7999. 

Consistent findings regarding WPS’s Technical Approach are found in: (1) the CO’s 

“Determination of Removal of Unacceptables from Further Consideration” (“CO Determination 

Document”), dated February 12, 2020; (2) the TEP report, dated February 25, 2020; and 

(3) WPS’s written debriefing, dated March 6, 2020. See id. Tabs 32, 38, 40. The official award 

decision set forth in the Source Selection Authority Decision Memorandum, signed July 14, 

2020, refers to the CO Determination Document as the source for “[a]dditional information 

[regarding the] removal” of WPS from the competition. Id. at 8627. The court therefore relies 

principally on the CO’s Determination Document, and only turns to the TEP report when a more 

detailed explanation of the TEP findings that underlie the Unacceptable rating adopted by the CO

is needed.

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The CO summarized the Unacceptable rating for WPS in the CO Determination

4

 The TEP report is less authoritative than the CO Determination Document because the 

TEP report does not fully explain the CO’s elimination decision.
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Document:

WPS’ staffing plan was the source for the majority of the weaknesses and 

. . . all of the significant weaknesses. One issue that spanned all areas of the 

staffing was WPS’ contradictory and ambiguous data in the technical proposal 

and in the Basis of Estimate (BOE) regarding many of the requirements from the 

RFP. I am particularly concerned with . . . WPS’ conflicting information 

regarding the number and sources of staff for the Mission Essential Functions 

(MEFs), and its impact on the proposed staffing plan. WPS failed to provide 

information and data that was required in the RFP in portions of its technical 

proposal and BOE, which generated weaknesses and significant weaknesses in 

WPS’ technical approach leading to sizable understaffing of the proposal. 

Overall, there is a significant high risk to contract performance as a result of the

proposed staffing plan, especially with the implementation of a new jurisdiction 

for the MAC as a critical factor.

Id. at 7992. The CO also prefaced her discussion of the weaknesses and significant weaknesses

in WPS’s Technical Approach with a remark that she “determined” that those weaknesses and 

significant weaknesses “collectively contributed to determining that WPS’ proposal was 

technically unacceptable, thus removing WPS from further consideration for award[.]”

Id. Thus, the CO’s elimination decision is supported both by very specific findings of the TEP, 

which are reproduced in the CO Determination Document, and by her integration of those 

findings in a broader critique of the staffing data in WPS’s proposal.

Before entering the maze of negative ratings assigned to WPS’s Technical Approach, the 

court makes two observations. First, the CO’s concern regarding J6 MAC contract staffing 

evidences the agency’s concern about the legitimacy of an offeror’s costs. CMS determined that

“[i]n view of the degree of change to the MAC contracts and the uncertainty of workload 

volumes, a cost reimbursement contract type is appropriate for the Jurisdiction 6 MAC contract.” 

Id. at 1150. Thus, although the contract involves large sums of money paid to the J6 MAC, 

typically over the course of seven years, the restraint on the cost of these services that would be 

available under a firm, fixed-price contracting vehicle is absent. Cf. Sterling Millwrights, Inc. v. 

United States, 26 Cl. Ct. 49, 100 (1992) (noting “the dangers of excessive costs associated with 

cost reimbursements contracts”). Because CMS is obliged to use a cost reimbursement 

contracting vehicle for this MAC contract, an offeror’s staffing approach must efficiently 

accomplish the tasks set forth in the RFP’s SOW and merit the costs reimbursed by the 

government.

Second, CMS’s concern with staffing also reflects a need for high quality MAC services. 

CMS determined that the J6 MAC contract requires “exceptional performance.” AR 1151. 

Through the administration of an award fee program, CMS would encourage the awardee to 

adapt to changing circumstances and to improve performance over the life of the contract. Id. at 

1151-52. In its BOE and other staffing information, therefore, each offeror was required to 

demonstrate how its staffing plan is poised to fulfill SOW requirements and to improve 

performance, as spurred on by the incentive of award fees, throughout the life of the contract. 
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With these concepts in mind, the court turns to the underlying findings that support the CO’s 

elimination of WPS’s proposal as technically unacceptable.

a. Weakness in Staffing Plan

First, the CO assigned a weakness to WPS’s Staffing Plan as it affected the Provider 

Enrollment MEF. Id. at 7998-99. The CO cited specifically to certain pages in WPS’s proposal

in sections titled “Total Proposed Staffing” and “Mission Essential Function (MEF) Staffing,” id.

at 7107, 7122, in which WPS describes how Provider Enrollment would be staffed, id. at 7110, 

7123-24, 7129, 7134, 7137. Based on her review of these proposal statements, the CO found 

that WPS’s “proposal features are a risk to successful contract performance because WPS’ 

proposed staffing plan (including its management plan) will not provide knowledgeable, quality 

personnel in sufficient number in order to ensure quality base year performance starting on day 

one of operations . . . and throughout the remaining contract periods.” Id. at 7999. The CO’s 

criticism of WPS’s Staffing Plan addresses the potential for understaffing and her concerns 

regarding WPS’s proposed “level of management oversight,” and its “management span of 

control” for Provider Enrollment. Id. at 7998-99.

WPS argues that it provided sufficient information in its BOE to allay any concerns that 

CMS might have had about supervisor/staff ratios for Provider Enrollment. According to WPS, 

“[i]f CMS wanted additional information, or information provided in a different format, it could 

easily have included such a requirement in the RFP.” Pl.’s Mot. 47. WPS also asserts that it was 

unreasonable for CMS to downgrade its proposal for information that was merely desirable but 

not required. WPS further argues that CMS must have ignored relevant staffing information 

provided in the BOE.

As the court reads the RFP and WPS’s proposal, however, the CO could rationally find 

that WPS’s proposal narrative regarding the staffing of Provider Enrollment was “insufficient,” 

“unsupported,” “unclear,” and generally inadequate to ensure proper staffing and supervision for 

this MEF. AR 7998-99. The RFP requires that very specific information be included in the 

narrative section of the proposal that addresses staffing. Id. at 1897-98. It is irrelevant that 

WPS’s BOE allegedly included clarifying data that would have allayed the CO’s concerns, if

CMS had analyzed the data in certain cells of that spreadsheet in a certain way. See Sci. 

Applications Int’l Corp. v. United States, 108 Fed. Cl. 235, 263 (2012) (stating that the procuring 

agency is “not required to scour other [proposal] volumes for relevant material” (citing Vanguard 

Recovery Assistance v. United States, 101 Fed. Cl. 765, 786-87 (2011))). After all, it is the 

offeror’s responsibility to provide technical evaluators with a well-written proposal. KSC Boss 

All., LLC v. United States, 142 Fed. Cl. 368, 385 (2019) (citing Structural Assocs., Inc./Comfort 

Sys. USA (Syracuse) Joint Venture v. United States, 89 Fed. Cl. 735, 744 (2009)). In other 

words, the TEP and the CO were under no obligation to discern what WPS “intended to 

communicate,” because it was WPS’s obligation to “adequately address this important 

requirement.” See id. at 382. Here, because WPS did not clearly show how its Staffing Plan met 

RFP requirements for the Provider Enrollment MEF, the weakness assigned to WPS’s Staffing 

Plan survives arbitrary and capricious review.
-12-

b. Significant Weakness for Medical Review

Next, the CO assigned a significant weakness to WPS’s Medical Review MEF. Medical 

Review (“MR”) is difficult to summarize because it involves a great variety of tasks and 

strategies. AR 1902-03. WPS asserts that the overall goal for MR is to “reduce the claims 

payment error rate in the contractor’s jurisdiction.” Pl.’s Mot. 44 (citing AR 1563). NGS 

observes that the description of MR in the RFP shows that CMS was seeking a description of 

how the offeror would categorize claims, and then how it would prioritize the review of certain 

types of claims with the greatest risk, to show that its MR strategy would be adapted to

conditions specific to J6 and would produce maximal results. The court turns to the RFP for 

additional guidance.

The SOW contains the following general introduction to MR:

The MR program is designed to promote a structured approach in the 

interpretation and implementation of Medicare policy, most often requiring the 

evaluation of medical records to determine the medical necessity of Medicare 

claims. The goal of the Contractor’s MR program is to reduce the claims 

payment error rate by identifying, through analysis of data and evaluation of other 

information, program vulnerabilities concerning coverage and coding made by 

individual providers and by taking the necessary action to prevent or address the 

identified vulnerabilities.

AR 1563. The RFP also includes a number of statements in its instructions regarding the 

proposal narrative to be provided for MR. The first three bulleted statements in these 

instructions paint the MR MEF in broad strokes:

Provide your proposed strategy and approach to handling the proposed medical 

review workload volumes for this contract, to include: the workload category as 

defined in the RFP (prepay and postpay medical record provider specific probe 

review, etc.), separately for Part A, Home Health (if applicable), Hospice (if 

applicable), Part B and Durable Medical Equipment (if applicable) and the 

identification of the types of claims the Offeror will focus on for review (e.g., 

Skilled Nursing Facility (SNF), therapy services, etc.).

Describe your process for ensuring varied and quality medical reviews are 

conducted throughout the year. Include in this discussion your approach to 

conducting data analysis for the jurisdiction and how this proposed data analysis 

impacts the proposed focus of the claim reviews.

Describe how the Offeror’s understanding of the jurisdiction-specific risk points 

for this contract resulted in the Offeror’s anticipated claim-type reviews (and 

volume per claim type) and the expected benefits to the Medicare Program and/or 

return on investment the Offeror anticipates by focusing on these claim types. 

Indicate the number and the level of experienced staff proposed for conducting 
-13-

the activities identified in the prioritized problem list of the Offeror’s proposed 

strategy.

Id. at 1902-03.

The rationale for the significant weakness assigned to WPS’s MR MEF is multi-faceted. 

Part of the CO’s concern is related to WPS’s approach to the “implementation of a new 

jurisdiction” as a MAC. Id. at 7992-94. The other criticized aspects of WPS’s MR include the 

proposed workloads for certain tasks to be accomplished by line staff, and the proposed number 

and assigned roles of supervisors working on MR. Id. at 7993-94. The CO emphasized that MR 

“is a critical aspect of the contract,” id. at 7992, and concluded that “WPS’ proposed approach 

for this MAC mission-essential function does not demonstrate an understanding of the SOW 

requirements and will likely result in significant understaffing,” id. at 7994.

WPS only challenges the “implementation of a new jurisdiction” aspect of the significant 

weakness for MR, which has two consequences. First, the specific workload and supervisory 

flaws noted by the CO are unchallenged. Defendant argues that because WPS does not challenge 

these two bases for the significant weakness for MR, it cannot prevail on its MR argument: 

“WPS has also not challenged CMS’s other two findings that were the bases of WPS’s 

significant weakness for Medical Review. The Court should consider that argument abandoned 

and find in the Government’s favor.” Def.’s Reply 15 (citing PlanetSpace, Inc. v. United States, 

92 Fed. Cl. 520, 524 (2010)).5 Similarly, NGS contends that “even if WPS prevails on the single 

challenge it continues to pursue, it cannot demonstrate prejudice given that any one of the three 

bases cited by CMS would serve as the factual predicate for its negative evaluation finding.” 

NGS Reply 12. The record reflects that the two unchallenged flaws, standing alone, justify the 

significant weakness notwithstanding any potential error in the “new jurisdiction” finding of the 

CO. The court therefore concludes that plaintiff has not met its burden to establish that a 

significant, prejudicial procurement error invalidates the significant weakness that the CO 

assigned to WPS’s proposal for its MR MEF.

The second consequence of plaintiff’s sole focus on the “new jurisdiction” critique of its 

MR MEF is that to the extent that WPS could prevail with its narrow challenge, there is no need 

to discuss every MR flaw the CO found in WPS’s proposal. Instead, the court will restrict its 

discussion to the alleged errors that, according to WPS, invalidate the “new jurisdiction” aspect 

of the significant weakness. The first alleged error is that the CO should have recognized that 

WPS fully complied with the RFP’s requirement that the offeror demonstrate how its 

“understanding of the jurisdiction-specific risk points for this contract resulted in the Offeror’s 

anticipated claim-type reviews (and volume per claim type) and the expected benefits to the 

Medicare Program and/or return on investment the Offeror anticipates by focusing on these 

claim types.” AR 1902; see also id. at 1904 (noting that CMS would evaluate MEFs by 

determining whether the offeror’s approach “demonstrates an understanding of the requirements 

5

 The correct citation for this proposition is likely PlanetSpace, Inc., 92 Fed. Cl. at 540 

n.20. 
-14-

of the MAC mission-essential functions, the mission-essential workload requirements specific to 

the solicited jurisdiction, and the likelihood that its approach will result in high quality 

performance throughout the duration of the contract”). The second error alleged by WPS is that 

it received disparate treatment because CGS had the same [. . .] but CGS did not receive a 

weakness related to its failure to adapt its MR MEF strategy to a new jurisdiction.

6

 The court 

addresses these alleged errors in turn.

The CO’s assignment of a significant weakness to WPS’s MR is founded, in relevant 

part, on the requirement to tailor MR to J6. The CO was concerned that the most concrete 

tailoring of MR that was planned in WPS’s proposal was the apparent intent to [. . .].

7

 Id. at 

7993 (citing id. at 7037, and also quoting an unidentified cell of WPS’s BOE, with the quoted 

language matching text found in the administrative record at Tab 73, OY1 cell N1372). Based 

on its review of the RFP, WPS’s proposal, and the CO Determination Document, the court finds 

nothing arbitrary or capricious in this negative evaluation finding. The CO could rationally find 

that WPS’s MR approach was weak in demonstrating how [. . .] would be sufficiently tailored to

the circumstances in J6.

8

WPS’s second challenge to the “new jurisdiction” aspect of the significant weakness 

finding is one of alleged disparate treatment—that CGS was similarly situated on this exact 

issue, but CGS did not receive a weakness for the RFP requirement for a jurisdiction-specific 

MR strategy. Pl.’s Mot. 46 (asserting that the MR adaptation strategies of WPS and CGS are 

“identical”). The parties scour the text of both proposals and endeavor to show that either CGS 

had a better MR adaptation approach for J6, or that CGS’s proposal, like WPS’s, lacked a 

concrete MR adaptation strategy that meets the RFP requirement. Given the complexity of the 

offerors’ MR strategies, the court will not second-guess the CO’s assessment of the risk of 

unsuccessful contract performance. See E.W. Bliss, 77 F.3d at 449 (noting that the reviewing

court should not second-guess the procuring agency’s technical ratings). The court therefore 

defers, to a significant degree, to the technical expertise of CMS on the distinction between 

CGS’s proposal and WPS’s proposal. See Advanced Data Concepts, Inc., 216 F.3d at 1058

(noting that bid protest review is highly deferential).

The court finds, in any case, that the text of the MR strategy in CGS’s proposal frames 

the adaptation of its [. . .] to the situation in J6 in different terms, and thus is not identical to 

WPS’s MR adaptation strategy. AR 2547-55. CGS recognized the need for [. . .]. Id. at 2547. 

CGS also informed CMS that it had [. . .]. Id. 

In the WPS proposal sections criticized by the CO, WPS did not show how the risk points 

6

 [. . .].

7

 Other MR strategies would be adapted from WPS’s [. . .]. AR 7993-94.

8

 WPS argues that its [. . .].” Pl.’s Mot. 46. That statement is irrelevant to the RFP 

requirement that the offeror show that its MR strategy would be properly adapted to J6. 
-15-

for J6 affected WPS’s MR staffing in J6. Id. at 7140-44. Thus, the explanation in WPS’s 

proposal of the adaptation of MR priorities in J6 is qualitatively different than assertions

provided in CGS’s proposal.9 Although the distinctions between the adaptation of MR strategies

to J6 proposed by CGS and WPS are subtle, there is a qualitative difference and these two 

offerors are not similarly situated. The court sees no disparate treatment in the CO’s assignment 

of a significant weakness to WPS’s MR MEF, because the MR proposals of WPS and CGS are 

not “substantively indistinguishable.” Office Design Grp. v. United States, 951 F.3d 1366, 1373 

(Fed. Cir. 2020).

For all of the above reasons, the significant weakness assigned by the CO to WPS’s MR

MEF survives arbitrary and capricious review.

c. Significant Weakness for the Staffing of Multiple MEFs

The other significant weakness assigned to WPS’s technical proposal engenders the most 

convoluted arguments from the parties, although, at bottom, it simply reflects the CO’s 

overarching concern regarding the potential in WPS’s proposal for understaffing, and incorrectly 

staffing, certain MEFs. The descriptive language chosen by the CO for her overall critique of 

WPS’s staffing approach information certainly applies here as well: “contradictory,”

“ambiguous,” “conflicting,” and a general “fail[ure] to provide information and data that was 

required in the RFP.” AR 7992. The introductory sentence to the CO’s very detailed significant 

weakness analysis states: “WPS[] is assigned a significant weakness for [its] approach to staff 

multiple Mission Essential Functions (MEFs) because of WPS’ use of labor categories [that] are 

not intended to directly complete the type of workload proposed.” Id. at 7994-95. Five of the 

seven MEFs suffered from this perceived flaw. Id. at 7995, 7998.

To address the parties’ arguments, the court begins with the most pertinent sections of the 

RFP. Next, the court summarizes the CO’s specific criticism of WPS’s staffing of five of the 

seven MEFs. Then, the court addresses WPS’s primary arguments that attempt to invalidate the 

CO’s assignment of this significant weakness. Finally, the court considers WPS’s contention 

that the CO’s significant weakness constitutes disparate treatment because NGS also staffed 

some MEFs with labor categories that were just as objectionable under the CO’s evaluation 

framework.

i. RFP Guidance for the Staffing of MEFs

Turning first to the RFP, the court describes a few passages that include the guidance 

most referenced by the parties in their briefs. Each offeror was required to explain its staffing of

the MEFs by indicating the assumptions underlying the staffing data provided. The offeror was 

directed to “identify and describe all other significant (i.e. material impact on technical approach 

9

 The CO was particularly concerned that WPS’s high-level description of MR 

adaptation did not match its workload assumptions and its BOE. AR 7992-93. WPS has pointed 

to no analogous problem in CGS’s proposal.
-16-

or proposed costs) proposal assumptions (workload or otherwise) used in its technical and 

business proposals, not otherwise identified or described in other parts of the Offeror’s 

proposal.” AR 1889. Further, the assumptions proposal section could “also be used to provide

additional narrative in support of the Offeror’s completed BOE . . . .” Id.

As to the instructions for the BOE itself, two foundational terms of art are explained. 

CMS categorizes labor categories as either “productive” or “non-productive labor.” Id. at 1641. 

As stated in the RFP, productive labor is “labor that is solely dependent on workload volume; as 

workload volume increases, productive labor hours increase at a proportionate rate.” Id. 

Non-productive labor, in contrast, is “labor that is not solely driven by workload volume. 

Rather, ‘non-productive’ labor may be fixed labor with no ties to workload fluctuations, or it 

may be labor that increases based on other factors, such as manager hours that are based on 

management to staff ratios.” Id. 

In addition, certain cells in the offeror’s BOE would identify the “labor categories that 

will perform or support a workload subcategory.” Id. at 1645. As supporting information for the 

offeror’s labor categories, other cells in the spreadsheet would “describe the specific job tasks, 

qualifications, and experience for each proposed labor category.” Id. at 1646. The offerors were 

also provided with the following guidance: 

The Offeror shall use the workload subcategory names provided by CMS to 

identify the driver for a given productive labor category. In the event that 

workload does not drive the proposed level of effort for a given labor category, 

the Offeror shall classify its non-productive labor categories with the label “NonWorkload Estimating Factor” and group these rows at the end of the respective 

workload category section. (See Example tab.)

Id. at 1641.

Seen from a more general perspective, the BOE and other relevant proposal sections 

would be read in tandem to assist in the evaluation of the offeror’s Technical Approach:

The purpose of the Basis of Estimate (BOE) is to assist the Centers for Medicare 

& Medicaid Services (CMS) in its evaluation of the Offeror’s technical and 

business proposals. Specifically, the BOE and other relevant historical data 

available to CMS will be used as a baseline tool for measuring and understanding 

how the Offeror proposes to perform the Statement of Work (SOW) requirements 

in contrast to how the Offeror has historically performed similar Medicare 

Administrative Contractor (MAC) work. Variances between an Offeror’s 

proposed and historical productivity rates, total number of hours and skill mix 

will be examined. If these variances are not fully explained or supported in the 

proposal, the variances may result in a technical finding and/or a cost realism 

adjustment pursuant to Federal Acquisition Regulation (FAR) 15.404-1(d).

Id. at 1639. As one final piece of RFP guidance, for each specified Contract Line Item Number 

(“CLIN”) in the RFP, the offeror was required to provide the number of employee full-time 
-17-

equivalents (“FTEs”) that would staff each CLIN and each MEF. Id. at 1896. 

With these RFP terms in mind, the court turns next to the CO’s assignment of a 

significant weakness to WPS’s proposal for its staffing information regarding five of the seven 

MEFs. 

ii. The CO’s Assessment of a Significant Weakness for the Staffing of Five MEFs

The MEFs that were deemed to have problematic staffing information in WPS’s proposal 

were Provider Enrollment, Provider Customer Service Program, Claims Processing, Appeals, 

and Audit and Reimbursement.10 Id. at 7994-98. The overarching concerns were that WPS’s 

staffing plan would “not provide knowledgeable, quality personnel in sufficient number in order 

to ensure quality . . . performance,” and that non-productive staff were proposed for workload 

subcategories at significant percentages of the work to be accomplished. Id. The percentages of 

non-productive staff contributing to certain workload subcategories for these five MEFs, in the 

CO’s estimation, are as follows: [. . .]. Id. 

For the calculation of these percentages, the CO looked at position descriptions in WPS’s 

BOE, as well as the “primary labor category” for workloads that were identified in WPS’s 

technical proposal. Id. at 7995. The CO then identified productive and non-productive staff 

assigned to workload subcategories and calculated the percentage of work assigned to 

non-productive staff. Id. at 7995-98. The calculation of these percentages appears to be 

reasonable, and the accuracy of these figures, as a product of such an analysis, is not subject to 

debate. The focus of the parties’ dispute is whether the CO’s analytical framework was 

reasonable, a topic to which the court now turns. 

iii. WPS’s Challenge to the Significant Weakness

WPS’s primary contentions regarding the significant weakness are that it was “based on a 

misreading of WPS’s proposal and a misapplication of the instructions that CMS provided in the 

RFP.” Pl.’s Mot. 2. The parties focus on a general criticism that the CO lodged against the 

staffing of these five MEFs, which begins with a quotation from WPS’s proposal: 

“Due to the complexity and length of the [provider] enrollment process, WPS 

uses an assembly line approach to processing. This allows for a more focused 

effort on behalf of the employee and ensures that an appropriately skilled 

employee completes the next step in the process[.]” This proposed approach 

indicates that multiple labor categories will touch a single application and no 

single application is completed by one FTE. However, the WPS’ BOE divided 

10 Thus, the only MEF, aside from Implementation, that was not included in the CO’s 

analysis for this significant weakness was Medical Review, which was assigned its own 

significant weakness. See supra Section II.B.2.b. Pursuant to the RFP, an offeror’s staffing of 

the Implementation MEF was not subject to the same level of scrutiny as the other six MEFs. 

AR 1896. 
-18-

the RFP workloads into fractions across multiple labor categories totaling 100% 

of each RFP workload. However, this does not align with the assembly line 

approach described in the technical approach that would require multiple touches. 

Furthermore, the BOE indicates the proposed skill mix required to process the 

entirety of many key workloads included labor categories that do not process 

applications, i.e., [Quality Assurance (“QA”)] Analyst.

AR 7995 (citing id. at 7161). The court discerns in WPS’s detailed challenge to the CO’s 

analytical framework three primary assertions: (1) the CO’s characterization of some labor 

categories in WPS’s proposal as non-productive employees was flawed; (2) the BOE template, 

provided by CMS, was itself the source of the CO’s misunderstanding of WPS’s proposal; and 

(3) there is no inherent contradiction between WPS’s assembly line approach and the data 

provided in its BOE.

11 The court addresses each of these arguments in turn.

First, WPS argues that its proposed QA Analyst, and other proposed labor categories

determined to be non-productive by the CO, were mischaracterized as non-productive. WPS 

asserts, for example, that its treatment of such employees as productive was made clear by the 

entry of workload percentages for these employees in its BOE. See Pl.’s Mot. 38 (“WPS 

provided a percentage . . . for each of the labor categories associated by Provider Enrollment Part 

B Initial Applications precisely because each of those labor categories is productive[.]”). But the 

CO was not required to accept any such designation of these labor categories in the BOE when 

she reviewed the entirety of the proposal to determine the nature of these proposed positions. 

The RFP emphasized that the BOE was a tool for understanding the offeror’s technical 

proposal—these elements of the proposal were read together to provide an understanding of an

offeror’s staffing of the MEFs. AR 1888, 1896, 1904; see Banknote Corp. of Am., 365 F.3d at

1353 (“[W]e must consider the solicitation as a whole, interpreting it in a manner that 

harmonizes and gives reasonable meaning to all of its provisions.” (citing Coast Fed. Bank, FSB 

v. United States, 323 F.3d 1035, 1038 (Fed. Cir. 2003) (en banc))). Thus, WPS cannot rebut the 

CO’s characterization of its proposed employees as non-productive simply because its BOE 

included data for these labor categories in cells that were normally reserved for productive 

employees.

More fundamentally, WPS disagrees with the CO’s assessment that these proposed 

employees would not provide “labor that is solely dependent on workload volume.” Id. at 1641. 

In essence, WPS argues that it has a more accurate interpretation of the productive labor

categories definition established by the RFP, as applied to its proposed employees, than does the 

CO. But even WPS’s own gloss on that definition, as stated in its proposal, shows that WPS 

loosened CMS’s definition for the description of its staffing of the MEFs. Compare id. at 1641 

(“labor that is solely dependent on workload volume”), with id. at 7040 (“labor that is driven by 

11 WPS also argues that it was irrational for the CO to assign a significant weakness to a 

BOE and staffing approach that WPS has used in other MAC jurisdictions. However, the court’s 

concern here is whether the significant weakness assigned by the CO in this procurement was 

rational under the RFP and other controlling authorities. 
-19-

workload volumes”). The only other substantive argument presented by WPS on this topic is 

related to various statements regarding the QA Analyst position that can be found in its BOE.12 

Even when all of the referenced elements of the position description for QA Analyst are 

considered, the CO’s characterization of this labor category as non-productive in the context of

the Provider Enrollment MEF is reasonable.13 The court concludes that WPS has not met its 

burden to show that the CO’s concern regarding the non-productive labor categories proposed by 

WPS, and her concern regarding WPS’s stated intent that these employees would perform 

significant percentages of the workloads in five MEFs, were either arbitrary or capricious.

Second, WPS appears to blame any conflicts or shortcomings in its BOE, and any 

contradictions between its BOE and other parts of its proposal, on the formulas embedded into 

the spreadsheet template provided by CMS, as well as the RFP’s requirement that these formulas 

and certain cell values not be altered by the offeror. To the extent that WPS challenges the RFP 

as providing a flawed framework for the evaluation of the staffing of the MEFs, the time to 

challenge the BOE template and related staffing information required of offerors was before 

proposals were due on April 1, 2019. See Blue & Gold Fleet, L.P. v. United States, 492 F.3d 

1308, 1313 (Fed. Cir. 2007) (“We also hold that a party who has the opportunity to object to the 

terms of a government solicitation containing a patent error and fails to do so prior to the close of 

the bidding process waives its ability to raise the same objection subsequently in a bid protest 

action in the Court of Federal Claims.”). It is simply too late to argue that WPS could not clearly 

and successfully communicate its staffing information in the BOE template.14

12 WPS also relies on a statement supplied by the CO that was part of the GAO protest. 

AR 9983-87. Not only does this statement fail to illuminate any flaw in the significant weakness 

assigned to WPS, but its value as a post-hoc supplement to the contemporaneous record of the 

elimination decision is negligible. See, e.g., Vanguard Recovery Assistance v. United States, 99 

Fed. Cl. 81, 102 (2011) (“Post hoc declarations and arguments will be discounted or 

disregarded.”) 

13 The CO’s determinations regarding non-productive employees vary depending on the 

workload subcategory. A Medical Director may be deemed productive or non-productive, 

depending on the workload in question, as is true for a QA Analyst. AR 7995. The roles for 

these two labor categories in WPS’s BOE vary greatly per workload subcategory. See id. Tab 

73, Position Description cells D292-D311, D317-D349. 

14 In its reply brief, WPS suggests that a latent ambiguity in the RFP did not alert WPS to 

the potential for a negative evaluation of its staffing of the MEFs. This argument, which is based 

on information known to WPS well before this protest was filed, see AR 8170-71, is untimely, 

see Novosteel SA v. United States, 284 F.3d 1261, 1264 (Fed. Cir. 2002) (stating that arguments 

raised for the first time in a reply brief are waived). Even if this argument had been timely 

raised, the functioning of the BOE cells was apparent to WPS, and the inherent difficulty of 

presenting a clear and sufficiently detailed roadmap to WPS’s staffing of the MEFs through the 

BOE and other proposal sections was apparent as well. This aspect of the RFP is patent, and 

WPS concedes it encountered this aspect of the solicitation before this MAC competition. See

Pl.’s Reply 22 (stating that WPS had previously encountered an “identical . . . BOE template and 
-20-

Third, WPS contends that the CO misread its proposal because there was no contradiction 

between its BOE and its staffing approach. The parties’ arguments on this issue are wideranging and, at times, far removed from the text of the RFP, the CO Determination Document, 

and WPS’s proposal. The court returns to the CO’s overall critique of WPS’s staffing 

information, where she found that it was “contradictory,” “ambiguous,” and “conflicting,” and

that “WPS failed to provide information and data that was required in the RFP.” AR 7992. The 

court also reemphasizes the introductory sentence to the CO’s very detailed significant weakness 

analysis: “WPS[] is assigned a significant weakness for [its] approach to staff multiple Mission 

Essential Functions (MEFs) because of WPS’ use of labor categories [that] are not intended to 

directly complete the type of workload proposed.” Id. at 7994-95. Along with this broader view,

the CO states more specifically that “WPS’ BOE divided the RFP workloads into fractions 

across multiple labor categories totaling 100% of each RFP workload [but] this does not align 

with the assembly line approach described in the technical approach that would require multiple 

touches.” Id. at 7995. 

The record reflects that the CO could rationally find that WPS’s BOE data did not “align” 

with the other information regarding an assembly line approach that is found in various volumes

of WPS’s proposal. Only one citation to WPS’s proposal is required to show that there is 

adequate support for the reasonableness of the CO’s finding. WPS attempted to explain its BOE 

with the following passage in a section titled “WPS Basis of Estimate (BOE) Narrative”:

It should be noted that not all workloads are completed by a single position. 

There are situations in which multiple positions would work on the same 

workload either through collaboration (e.g., two people looking at one claim 

together) or through division of tasks (e.g., similar to an assembly line type 

process in which Position I performs task X and Position II performs task Y to 

complete all tasks required to process the workload). The Historical Percentage 

of Workload Processed by a Position should NOT be interpreted to mean that a 

position completes a percentage of the workload in its entirety. For example, the 

Percentage Workload Processed by Position may show a supervisor working 10% 

of a workload in an area, when they are only helping their team to resolve 

questions that may arise related to the workload.

Id. at 7032. At bottom, in this passage WPS communicated to CMS that its BOE cells, with

actual numbers representing percentages of workload performed by the identified labor 

categories, might not reflect the reality of its assembly line approach. This is an alignment 

problem that the CO rationally incorporated into the significant weakness she assigned to WPS’s 

staffing information for five of its seven MEFs.

According to NGS, “WPS provided no clarification or instruction for how CMS was to 

evaluate WPS’ proposal if CMS could not rely on the percentages listed in the BOE.” NGS Mot. 

instructions”).
-21-

27. WPS offers no direct rebuttal of this argument in its reply brief. Yet, WPS appears to 

concede that the BOE cells reporting the percentage of workload processed by labor category are

important to CMS for evaluation purposes. See Pl.’s Reply 20 (stating that “the relative level of 

effort required by each labor category, which is what the BOE was supposed to do,” would 

provide “useful information” (citing AR 1646-47)). The alignment problem noted by the CO 

thus is just one example of WPS’s “fail[ure] to provide information and data that was required in 

the RFP.” AR 7992. For these reasons, the alignment problem portion of the significant 

weakness assigned to WPS’s staffing information for five of seven MEFs survives arbitrary and 

capricious review.

The court concludes that the CO reasonably assigned WPS’s proposal a significant 

weakness for the staffing of five of the seven MEFs. WPS raises one final argument against this 

significant weakness, and it is to this argument that the court now turns.

iv. WPS’s Disparate Treatment Argument

WPS contends that disparate treatment invalidates the significant weakness assigned to 

its staffing of five of the seven MEFs. According to WPS, there was disparate treatment because 

NGS received merely a weakness, not a significant weakness, for non-productive staff proposed 

for some of the workloads of certain MEFs. WPS asserts that the only real “difference between 

the two findings [of the CO] is that WPS’s is associated with five MEFs whereas NGS’s is 

associated with four MEFs.” Pl.’s Mot. 27. There are two problems with WPS’s disparate 

treatment argument.15

First, the fact that the awardee was assigned a weakness for precisely the type of proposal 

risk that was discerned in WPS’s proposal is a sign of a consistent, fair, and rational evaluation 

approach. In other words, CMS rationally looked at the staffing of MEFs with non-productive 

staff as a problem whether it was in NGS’s proposal or in WPS’s proposal. The negative 

evaluation of this aspect of WPS’s proposal is supported, not necessarily undermined, by the 

CO’s similar finding regarding NGS’s proposal.

Second, the distinction between four or five MEFs having this staffing problem is not 

insubstantial, as argued by this passage in NGS’s motion:

CMS’ evaluation also demonstrates that in addition [to] NGS’ non-productive 

labor issue touching fewer MEFs, NGS’ Weakness covered a far smaller 

magnitude of CLINs and workload as well. For NGS, the TEP found that only 

15 WPS argues, too, that CGS’s receipt of two weaknesses for its staffing of MEFs for 

similar reasons, but not a significant weakness, is another example of disparate treatment. WPS 

is comparing apples to oranges with CGS. There is no mention of non-productive staff in the 

weaknesses assigned to CGS. See AR 8689-90, 8692-93. There may be parallels, but the CO’s 

assessment does not include the same evaluation commentary as that found in the negative 

ratings assigned to WPS and NGS.
-22-

four CLINs were impacted by the non-productive labor issue, and that the 

percentages of non-productive workload were not severe enough to impact 

performance significantly. This stands in stark contrast to CMS’ findings 

regarding WPS’ proposal, which covered 17 different CLINs over the five MEFs 

. . . .

NGS Mot. 25 (citing AR 8105-08, 8122-23). WPS did not rebut this argument.

A comparison of the significant weakness assigned to WPS and the weakness assigned to 

NGS shows that the CO could rationally find proposed non-productive staff for the MEFs to be a 

significant weakness for WPS and only a weakness for NGS. Compare AR 7994-98, with id. at 

8638-39. There is both the number of impacted CLINs to consider, and the fact that the 

significant weakness for WPS also took into account the additional issue of the alignment 

problem between WPS’s BOE and its assembly line approach. Because the proposals were not 

“substantively indistinguishable,” Office Design Grp., 951 F.3d at 1373, the court finds no 

disparate treatment in the significant weakness assigned to WPS for the staffing of five of the 

seven MEFs. Having considered all of WPS’s arguments, this significant weakness has not been 

shown to be arbitrary or capricious.

d. Reasonable Elimination Based on Unacceptable Rating for WPS’s Technical Approach

The court has tested every negative evaluation rating assigned to WPS’s Technical 

Approach under the arbitrary and capricious standard of review. Each weakness and each

significant weakness is rational and in accordance with the evaluation scheme of the RFP. 

Because these negative evaluation ratings are unobjectionable, so too is the elimination of WPS 

from this competition as technically unacceptable. Moreover, because the CO’s elimination of 

WPS’s proposal was based solely on the Unacceptable rating on Technical Approach, the 

parties’ dispute regarding WPS’s Low Confidence rating on Past Performance is moot.

3. Standing of an Eliminated Offeror to Challenge Subsequent Steps in Evaluation Process

Returning now to the standing concerns raised by NGS, the court considers whether 

WPS, properly eliminated from this competition, has standing to challenge agency actions that 

occurred after that elimination and that culminated in the award to NGS. It concludes that

because there could be no prejudice to WPS, an eliminated offeror, flowing from any 

procurement errors that later occurred in the selection of NGS as awardee, WPS lacks standing to 

assert its remaining protest grounds. Indeed, WPS makes no attempt to directly rebut this 

particular standing argument raised by NGS.

Instead, the court discerns three distinct arguments raised by WPS that might obliquely 

address the standing question as it applies to postelimination procurement events. First, relying 

on a bid protest decision of this court, WPS argues that CMS’s “irrational actions trigger a 

presumption of prejudice that neither the Government nor NGS can rebut.” Pl.’s Reply 4 (citing

HVF W., LLC v. United States, 146 Fed. Cl. 314, 331-32 (2019), denying reconsideration, 146 

Fed. Cl. 451 (2020), appeals docketed, Nos. 20-1414, 20-1583 (Fed. Cir. Jan. 30, 2020, Mar. 18, 
-23-

2020)). The court notes that the presumption of prejudice discussed in HVF West, LLC, as well 

as the presumption of prejudice discussed in the case quoted in HVF West, LLC, is a 

presumption for the determination of prejudice once the protestor has succeeded on the merits of 

its protest allegations, not a presumption for the purposes of determining standing. HVF W., 

LLC, 146 Fed. Cl. at 332 (quoting, in a parenthetical, Caddell Constr. Co. v. United States, 125 

Fed. Cl. 30, 50 (2016)). Thus, HVF West, LLC and Caddell Construction Co. have no bearing 

on the standing question presented here.

Second, WPS invokes hypothetical discussions with offerors and proposal revisions to 

buttress its prejudice allegations. It relies, in this regard, on another bid protest decision of this 

court, which concluded that the protestor was prejudiced by unequal discussions and that the 

outcome of the procurement could not be predicted with any certainty because of a likely 

opportunity for proposal revisions. See Centerra Grp., LLC v. United States, 138 Fed. Cl. 407, 

419-22 (2018). But the discussion of prejudice in Centerra Group, as in HVF West, LLC,

focused on the prejudicial effect of proven errors, not the prejudice required to establish 

standing. Further, Centerra Group is distinguishable because the protestor in that procurement 

was not rated technically unacceptable, and was not eliminated from the competition before the 

unequal discussions with its competitor occurred. Id. at 411-12. The court finds no support in 

Centerra Group for WPS’s standing to assert its remaining protest grounds.

Third, when arguing the merits of its OCI-related protest grounds, WPS contends that its 

elimination from the competition, even if that agency action is deemed proper by the court, 

would not change the prejudicial nature of an erroneous award to NGS: 

Moreover, WPS was prejudiced by CMS’s relaxation of the RFP’s requirements 

even if the Court agrees that WPS’s unacceptable technical rating was proper. 

This is because the record demonstrates a substantial chance that CMS would 

have conducted discussions to permit NGS to address the defects in its proposal, 

which would also have permitted WPS to revise its proposal.

Pl.’s Reply 14. But it would have been illogical for CMS, once it had addressed its OCI 

concerns with the apparent awardee, to reverse course and reinstate an offeror that had been 

eliminated from the competition as technically unacceptable four months earlier. The 

hypothetical scenario of WPS entering into discussions with CMS is not consistent with the 

record of this procurement. Palmetto and CGS were the only offerors who might have been 

prejudiced and, consequently, would have had standing to assert protest grounds such as the 

OCI-related protest grounds asserted by WPS, because they had not been eliminated for technical 

unacceptability reasons. 

As guided by the precedent of the United States Court of Appeals for the Federal Circuit 

(“Federal Circuit”), prejudicial errors are those that impede the protestor from receiving the 

contract award, or, in other words, that “interfere[] with its ability to receive the contract award.” 

Labatt Food Serv., 577 F.3d at 1380. For example, an offeror that submits an untimely proposal 

has no standing to complain of an irregularity in the consideration of timely proposals. See id. at 

1381 (noting that a procurement irregularity was “not relevant to [the protestor’s] removal from 
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the competition [because] [i]t was removed from the competition for an untimely submission”). 

Once an offeror has been properly removed from a competition, the agency’s erroneous actions 

vis-à-vis the remaining offerors are not prejudicial to that eliminated offeror bringing a bid 

protest in this court. This is so because the protestor’s “proposal would not have been improved 

and its chances of securing the contract would not have been increased if [the agency] cured the

[subsequent] error.” Id. at 1380-81.

 

Unless there is a “connection between the government’s [alleged] error and [the 

protestor’s] failure to secure the contract . . . , there is no injury to redress, and no standing to 

sue.” Id. at 1381. In the terms of the Federal Circuit’s Labatt Food Service opinion, prejudicial 

harm so as to support bid protest standing is “particularized harm.” Id. at 1380. Under this 

standard, WPS was not prejudiced by any of the alleged errors in its remaining protest grounds

and thus lacks standing to assert them. See, e.g., Commissioning Sols. Glob., LLC v. United 

States, 97 Fed. Cl. 1, 8 (2011) (holding that where the protestor was not in contention for the

award of two particular contracts because it lacked the required relevant experience, it had no 

standing to assert errors in the competition for those two contracts).

Even though WPS lacks standing to assert its OCI-related protest grounds, the court 

proceeds, in the alternative, to examine WPS’s remaining allegations of agency error under the 

arbitrary and capricious standard of review. It is often prudent, and it may further judicial 

economy, to examine all of the procurement errors alleged by the protestor. Consequently, the 

analysis that follows should not be construed as an advisory opinion. WPS’s remaining 

contentions focus on the OCIs that were the topic of the fifth volume of NGS’s proposal and that 

were the subject of extensive communications between CMS and NGS. 

4. OCI-related Protest Grounds

The court begins its discussion of OCIs by referencing the RFP, which uses the COI 

acronym.

16 The most detailed set of RFP instructions regarding the offeror’s disclosure of COIs 

is provided in Attachment J.10, “Contractor Business Ethics, Conflicts of Interest and 

Compliance Program Requirements.” AR 1635-38. Another set of instructions, Attachment 

J.11, “Contractor Personal Conflicts of Interest Financial Disclosure Template,” addresses the 

COIs of individuals. Id. at 694-702. Also, in the answers provided to offeror questions in 

Amendment 0002, CMS indicated that the notification procedures in FAR 9.504(e) “will be 

followed” for COIs. Id. at 1783-84. 

In addition, four other key provisions regarding COIs were included in the instructions 

for the submission of proposal Volume V.17 First, CMS noted that “[i]n accordance with FAR

16 The court returns to the OCI acronym, the more generally accepted term for this issue, 

in its discussion of WPS’s arguments.

17 Waiver of COIs, also discussed in the RFP, AR 1912 (citing FAR 9.503), is not an 

issue in this protest. 
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9.5, the Government must ensure that an Offeror and its proposed Subcontractor(s) is/are free of 

All Organizational/Personal Conflict of Interest (hereinafter collectively or individually referred 

to as COI).” Id. at 1911. Second, “[t]he Business Ethics, Conflicts of Interest and Compliance 

information is so material to the award of this contract that a proposal failing to provide the 

requirements identified in Attachment J.10 . . . may be ineligible for award.” Id. Third, offerors 

were notified that only the “apparent successful [o]fferor” would receive a review of its COIs, 

although that review would not produce an evaluation score or rating. Id. at 1912. Fourth, CMS 

indicated that COIs might be mitigated so as to permit award, pursuant to FAR 9.504(e), and that 

communications with the offeror to discuss mitigation would be permitted. Id.

Turning to NGS’s proposal Volume V and its review by CMS, NGS discussed therein a 

number of COIs, either actual, potential, or apparent, and also discussed its COI mitigation plan. 

AR Tab 22e. Once NGS was selected as the apparent successful offeror, extensive 

communications between CMS and NGS took place on the COI issue. Id. Tabs 34, 36-37, 39, 

41-44, 46-48. The CO eventually determined that “no significant actual or potential conflicts

were found that are not sufficiently mitigated.” Id. at 8635. 

WPS contends that the award to NGS was improper due to OCIs that rendered NGS 

ineligible for award. The nature of the OCIs in NGS’s proposal is that of impaired objectivity 

because, according to WPS, “NGS is affiliated with dozens of healthcare providers that will 

submit millions of dollars in [Medicare] claims that NGS will review and determine whether to 

pay under the contract.” Pl.’s Mot. 18 (citing AR 8233-34). WPS challenges the effectiveness

of the mitigation of NGS’s OCIs, as well as the propriety of the communications that were held 

between CMS and NGS to discuss OCIs and OCI mitigation. The court begins with the 

regulatory context that applies to WPS’s criticism of the effectiveness of NGS’s OCI mitigation 

plans.

a. Whether NGS’s Mitigation of OCIs Was in Accordance With Regulation

There appears to be no dispute that NGS has OCIs because of its affiliation with health 

care providers whose Medicare claims will be processed by the J6 MAC, and for other reasons as 

well. AR 8233-36, 8407-09. The questions for the court are whether NGS’s OCIs are 

significant, and if so, whether the mitigation of OCIs proposed by NGS is reasonable and in 

accordance with regulation. See FAR 9.504(a) (stating that the CO must “[a]void, neutralize, or 

mitigate significant potential conflicts before contract award”). The CO described NGS’s four 

OCIs in this manner: (1) “actual,” but “may not be significant” OCI; (2) “apparent,” with “the 

OCI concern . . . highly attenuated” OCI; (3) “clear potential personal” OCI; and (4) “potential” 

OCI. AR 8408-09. The record reflects that the OCIs discussed by the CO, in combination, are 

significant and trigger the CO’s obligation to ensure that the OCIs are effectively mitigated.18 

18 Defendant overreaches when it argues that the CO found NGS’s sole actual OCI to be 

insignificant because she stated that this OCI “may not be significant.” AR 8408. Although the 

court would defer to the CO’s judgment as to the significance of an OCI, see Turner Constr. Co. 

v. United States, 645 F.3d 1377, 1386 (Fed. Cir. 2011) (stating that a “CO has considerable 

discretion in determining whether a conflict is significant” (citing PAI Corp. v. United States, 
-26-

As to WPS’s assertion that NGS’s OCI mitigation plan was not reasonable, however, the 

court and WPS must part ways. The CO exercises considerable discretion in “the evaluation of 

mitigation proposals,” and her inquiry in this regard is “fact-specific.” Axiom Res. Mgmt., Inc. 

v. United States, 564 F.3d 1374, 1382 (Fed. Cir. 2009) (citing FAR 9.505; ARINC Eng’g Servs., 

LLC v. United States, 77 Fed. Cl. 196, 202 (2007)); see also PAI Corp., 614 F.3d at 1351 (noting 

that the court’s inquiry into OCI matters hinges on “whether the contracting officer failed to 

exercise proper discretion”). Here, the record shows that CMS undertook extensive 

communications with NGS to understand the OCIs inherent in the proposal and the mitigation 

strategies that would address significant potential conflicts. 

The court has reviewed NGS’s mitigation plan, its communications with CMS explaining 

how that plan would be effective, the CO’s review of all four remaining OCIs in NGS’s 

proposal, and the CO’s determination that “no significant actual or potential conflicts were found 

that are not sufficiently mitigated.” AR 8635. The record shows her “exercise of common 

sense, good judgment, and sound discretion . . . in both the decision on whether a significant 

potential conflict exists and, if it does, the development of an appropriate means for resolving it.” 

FAR 9.505. The court concludes that the CO’s acceptance of NGS’s OCI mitigation plan was in 

accordance with the broad framework provided for such reviews in the FAR.19 The court now 

turns to WPS’s other arguments challenging the reasonableness of NGS’s OCI mitigation plan, 

which require a closer look at the mitigation plan itself.

b. Whether NGS’s OCI Mitigation Plan Was in Accordance With the RFP and Other 

Authorities

NGS’s OCI mitigation plan is presented in its proposal Volume V, AR 5542-49, and 

again in its communications with CMS once it had been selected as the apparent successful 

offeror. One important difference in the OCI mitigation plan as originally proposed, and the OCI 

mitigation plan approved by the CO, flows from the divestment from NGS’s corporate family, in 

the interim period, of four health care providers that would have otherwise caused OCIs in J6. 

See id. at 8407-08 (noting that “[s]ignificant portions” of the communications between CMS and 

NGS regarding OCIs had focused on the OCIs related to these four health care providers). Thus, 

the amount of OCI mitigation required for NGS to perform as the J6 MAC was significantly 

reduced after it submitted its proposal. Id. at 8408.

614 F.3d 1347, 1352 (Fed. Cir. 2010))), the CO here did not clearly state that any of NGS’s OCIs 

were insignificant.

19 FAR 9.505 also states that “[e]ach individual contracting situation should be examined 

on the basis of its particular facts and the nature of the proposed contract.” NGS was the 

incumbent contractor in J6. AR 3860. The CO’s understanding of how NGS’s OCI mitigation 

plan would be effective in J6 where it had already been operating for several years is entitled to 

considerable deference. Cf. id. at 8409 (CO’s OCI analysis) (noting that, according to NGS, one 

potential OCI “has never happened to date, and is unlikely to ever happen”). 
-27-

NGS’s OCI mitigation plan is described as having [. . .]. Id. at 5542, 8209, 8408. WPS 

is most concerned with the [. . .] component;

20 for this reason the court will restrict its 

observations to this component of NGS’s OCI mitigation plan.21 WPS first contends that the

[. . .] violates various provisions of the RFP, and then argues that such an [. . .] is not reasonable 

in light of decisions of the GAO that have reviewed other OCI mitigation plans.22 The court 

turns first to WPS’s reliance on the RFP in its attempt to invalidate the [. . .] proposed by NGS in

its OCI mitigation plan.

WPS argues that there are two aspects of the [. . .] that violate the RFP: (1) NGS 

proposed to [. . .] but the practice of [. . .] was forbidden; and (2) NGS was required to disclose

[. . .] but did not. For the first issue, WPS points to this statement in the RFP: “CMS will not 

accept any type of management discount, corporate contribution, or corporate investment 

discount, or anything similar, that is proposed to lower an Offeror’s or subcontractor’s estimated 

cost.” Id. at 1910. Neither NGS nor defendant presented a timely rebuttal to this argument.

WPS’s argument, however, is not persuasive because the RFP does not categorically 

[. . .] by the offeror. Indeed, as WPS itself acknowledges, NGS included a [. . .]. Pl.’s Mot. 14 

(citing AR 4153). Further, CMS interpreted the RFP to permit [. . .] expenditures for OCI 

mitigation. See AR at 8037 (citing FAR 31.201-6 as support for NGS’s [. . .]). Nor is there any 

indication that NGS proposed a corporate discount or contribution, or that CMS framed the OCI 

mitigation plan costs in those terms. See id. ([. . .]); see also id. at 8154 (noting that NGS’s 

mitigation costs will not be treated as [. . .]). Finally, the RFP acknowledges the potential for 

[. . .] in the administration of the J6 MAC contract. See id. at 1811 (citing FAR 42.704(b)), 1812 

(citing FAR 52.216-7). WPS has not met its burden to show that the [. . .] of the [. . .] violated 

the RFP’s prohibition against corporate discounts, contributions, or similar cost reduction 

20 WPS did not criticize the effectiveness of the [. . .] of NGS’s OCI mitigation plan in its 

opening brief. Thus, any arguments regarding the effectiveness of these components raised in 

WPS’s reply brief are untimely. Novosteel SA, 284 F.3d at 1264. Even if WPS’s cursory 

argument in this regard had been timely raised, it is not persuasive. See Pl.’s Reply 16 (arguing 

that CMS cannot [. . .]). The court trusts that the CO appropriately found value in these [. . .] of 

NGS’s OCI mitigation plan and defers to her judgment in this regard. 

21 Other OCI mitigation plan components were discussed by CMS and NGS in their 

communications. See, e.g., AR 8194, 8200-01, 8209-14, 8228-32. Although the court’s 

discussion focuses on just one component of NGS’s OCI mitigation plan, the other components 

are not insubstantial and contribute to the effectiveness and reasonableness of the plan.

22 WPS casts a broad net for authority in its quest to impugn the reasonableness of the 

[. . .]. GAO decisions, however, provide the most specific statements upon which WPS relies. It 

would be inefficient to address every citation in WPS’s briefs and to do so would add nothing to 

the court’s analysis here, which, as explained above, is a holding in the alternative undertaken for 

the purpose of judicial economy. 
-28-

strategies.

As for NGS’s purported flouting of the RFP’s requirement that an offeror disclose its 

subcontractors, the parties debate whether this requirement applies to an as yet undetermined

[. . .] subcontractor. WPS asserts that the “RFP required offerors to identify all proposed 

subcontractors,” and that this requirement included [. . .] addressing OCIs. Pl.’s Mot. 14 n.7 

(citing AR 1884, 1909). The court agrees with NGS, however, that a rational interpretation of 

the RFP permits an offeror to not include an [. . .], to be chosen at a later date, in its disclosed 

subcontractors information, because the disclosure requirement in the RFP was tied to significant 

subcontractors performing SOW requirements. AR 1884, 1893, 1909. WPS fails to meet its 

burden to show that the [. . .] violated the RFP.

Finally, WPS asserts in emphatic terms that an [. . .] cannot mitigate the OCIs because 

NGS will have already performed the claims processing work that is compromised by the OCIs. 

WPS’s preferred formulation of this criticism is that the mitigation plan “mitigates nothing.” 

Pl.’s Mot. 17; Pl.’s Reply 14. Further, WPS asserts that the “only recognized mitigation strategy 

for NGS’s OCI is for one of NGS’s subcontractors to perform work involving NGS’s [. . .].” 

Pl.’s Mot. 20 (citing Leidos, Inc., B-417994, 2019 WL 7019036, at *9 (Comp. Gen. Dec. 17, 

2019)). In WPS’s view, NGS could not use an [. . .]—it needed to firewall certain Medicare 

claims processing tasks so that NGS never touched them.23

The court finds no merit in WPS’s challenge to the reasonableness of NGS’s OCI 

mitigation plan. The review of OCI mitigation plans is fact-specific and is committed to the 

discretion of the CO. PAI Corp., 614 F.3d at 1351; Axiom, 564 F.3d at 1382. In other words, 

simply because the GAO has found a firewall to be the proper OCI mitigation strategy in some 

protests is not determinative here. 

Further, the Leidos decision relied upon by WPS concerned an impaired objectivity OCI 

which was quite different in nature. The OCI in Leidos involved multiple government contracts 

and initiatives for which a proposed subcontractor for the protestor would be reviewing strategies 

and advising the government on projects where it could quite easily favor itself. 2019 WL 

7019036, at *9. Here, the NGS OCIs were attenuated, at least in part, and the CO concluded that

for these OCIs an [. . .] was reasonable and appropriate. Having reviewed the record of NGS’s 

OCI mitigation plan and the CO’s review of that plan, the CO’s decision falls well within a CO’s 

23 WPS also argues that NGS’s OCI mitigation plan could not be viewed as reasonable 

because it did not identify the [. . .], and thus lacked “the necessary level of detail.” Pl.’s Reply 

18 (quoting Cahaba Safeguard Administrators, LLC, B-401842.2, 2010 CPD ¶ 39 (Comp. Gen. 

Jan. 25, 2010)). However, the lack of a [. . .] is not analogous to the OCI mitigation plan in 

Cahaba that proposed three “potential approaches,” which was flawed because the approaches 

lacked “details explaining how any of the plans would work or when they would, or could, be 

implemented.” 2010 CPD ¶ 39. WPS’s contention that NGS’s OCI mitigation plan was not 

reasonable—merely because the identity of [. . .] was not specified—is not supported by the 

authority cited and is not, in any event, persuasive. 
-29-

“great latitude in handling OCIs.” Turner Constr. Co., 645 F.3d at 1384. The CO’s approval of 

NGS’s OCI mitigation plan was in accordance with the RFP and precedent and thus would 

survive arbitrary and capricious review if WPS had standing to assert this protest ground.

c. Whether CMS Entered Into Improper and Unequal Discussions With NGS Regarding 

OCI Mitigation

WPS’s final challenge to the CO’s acceptance of NGS’s OCI mitigation plan and the 

award of the J6 MAC contract is that NGS was allowed to modify its proposal through the 

communications held between CMS and NGS on the topic of OCI mitigation, and that these

modifications show that discussions were improperly held with only NGS and not the other 

offerors. To the extent that this challenge is based on alleged changes NGS was allowed to make 

to cure the alleged RFP “violations” in its OCI mitigation plan, as discussed above, that 

particular challenge fails because there were no violations of the RFP in the [. . .] aspect of the 

plan, or in the subcontractor disclosure aspect of the plan, that required modification of NGS’s 

proposal. What remains, then, is WPS’s challenge to the communications between CMS and 

NGS, labelled exchanges, on the basis that these communications were more substantive than 

clarifications and were actually discussions.

WPS alleges that “NGS’s [communications with CMS] revised the accounting policies 

and procedures on which NGS’s proposal was based” because NGS indicated it would [. . .] of 

its OCI mitigation plan. Pl.’s Mot. 15. Defendant argues, and the court must agree, that WPS 

has not identified any change in NGS’s OCI mitigation plan, technical volume, or business 

volume that can be tied to NGS’s statement that it would be treating its OCI mitigation plan costs 

[. . .]. See Def.’s Mot. 41 (“NGS merely responded to CMS’s clarifying questions with 

clarifying information—no proposal change, [hence] no discussions.”). Because the dividing 

line commonly drawn between clarifications and discussions is that proposal revisions can only 

be made through discussions, WPS has not shown that this aspect of the communications 

between CMS and NGS constitutes discussions. See, e.g., DynCorp Int’l LLC v. United States, 

76 Fed. Cl. 528, 541 (2007) (“Discussions . . . are ‘exchanges . . . between the Government and 

offerors, that are undertaken with the intent of allowing the offeror to revise its proposal.’”

(second alteration in original) (quoting FAR 15.306(d))).

 

Because WPS has identified no proposal revisions, WPS has not shown that CMS and 

NGS engaged in discussions. Without discussions, any allegation of improper or unequal 

discussions is unfounded. The court therefore concludes that the CO’s acceptance of NGS’s OCI 

mitigation plan and the award of the J6 MAC contract would survive arbitrary and capricious 

review if WPS could be considered to have standing to bring its OCI-related protest grounds.

III. CONCLUSION

The court has considered all of the parties’ arguments. To the extent not discussed 

herein, they are unpersuasive, without merit, or unnecessary for resolving the issues currently 

before the court. The court summarizes here its findings of fact and conclusions of law.
-30-

WPS has standing to contest its elimination from the competition. However, that 

elimination decision withstands arbitrary and capricious review. Consequently, WPS lacks 

standing to challenge subsequent procurement events leading to the award to NGS. In the 

alternative, even if WPS had standing for its OCI-related protest grounds, these protest grounds 

lack merit. 

Because WPS has not succeeded on the merits of its protest, the court need not discuss 

the factors that permit this court to award injunctive relief to a protestor. See Dell Fed. Sys., L.P. 

v. United States, 906 F.3d 982, 999 (Fed. Cir. 2018) (stating that “proving success on the merits 

is a necessary element for a permanent injunction”). 

The court therefore GRANTS in part and DENIES in part NGS’s motion to dismiss for 

lack of standing. The court GRANTS NGS’s and defendant’s motions for judgment on the 

administrative record. The court DENIES WPS’s motion for judgment on the administrative 

record. The clerk is directed to enter judgment accordingly and dismiss the case. No costs.

The court has filed this ruling under seal. The parties shall confer to determine agreed-to 

proposed redactions. Then, by no later than Tuesday, November 17, 2020, the parties shall 

file a joint status report indicating their agreement with the proposed redactions, attaching a 

copy of those pages of the court’s ruling containing proposed redactions, with all proposed 

redactions clearly indicated.

Further, the court reminds the parties of their obligation under paragraph 12 of the 

protective order filed on July 13, 2020, to file redacted versions of protected documents for the 

public record. If 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 Tuesday, November 17, 

2020, explaining the reason for the delay.

IT IS SO ORDERED.

s/ Margaret M. Sweeney 

MARGARET M. SWEENEY

Senior Judge