In the United States Court of Federal Claims

No. 20-849C

(Filed: December 24, 2020)

VSOLVIT, LLC,

Plaintiff,

 v.

THE UNITED STATES,

Defendant.

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Solicitation bid protest; RCFC 52.1;

administrative record 

supplementation; organizational 

conflicts of interest; unequal access 

to information; Federal Supply 

Schedule; small business set aside; 

rule of two; FAR Part 8.

Jon D. Levin, Maynard, Cooper & Gale, PC, Huntsville, AL, for Plaintiff. With him on 

the briefs were W. Brad English, Emily J. Chancey, and Michael W. Rich.

Jimmy S. McBirney, United States Department of Justice, Civil Division, Washington, 

D.C., for Defendant. With him on the briefs were Jeffrey Bossert Clark, Acting Assistant 

Attorney General, Civil Division, Robert E. Kirschman, Jr., Director, and Misha Preheim, 

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

Department of Justice, Washington, D.C. 

OPINION AND ORDER

SOLOMSON, Judge.

In April 2020, the United States Department of Agriculture (“USDA” or the 

“Agency”) issued Request for Quotes No. 12639520Q0130 (the “Solicitation”), an 

unrestricted solicitation under Schedule 70 of the General Services Administration 

(“GSA”) Federal Supply Schedule (“FSS”), to obtain information technology (“IT”)

operations and maintenance support services for the Agency’s Livestock Mandatory 

Price Reporting System (“LMPRS”) and Market Analysis & Reporting Services 

(“MARS”). In this pre-award protest challenging the Solicitation, Plaintiff, VSolvit, LLC 

(“VSolvit”), claims that the USDA: (1) failed to provide sufficient information in the 

Solicitation necessary for offerors to compete intelligently; (2) failed to address the 

possibility that the incumbent service provider had unfair access to relevant 

information; and (3) failed to consider whether a small business set aside was required 

before issuing the unrestricted Solicitation under the FSS. VSolvit seeks permanent 
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injunctive relief precluding the USDA from awarding a contract pursuant to the 

Solicitation until VSolvit’s concerns are remedied. Defendant, the United States, 

counters that VSolvit fails to demonstrate that the Agency has violated any 

procurement statute or regulation in connection with the Solicitation. Before the Court 

are Plaintiff’s motions for judgment on the administrative record and to supplement the 

administrative record, as well as Defendant’s cross-motion for judgment on the 

administrative record and opposition to Plaintiff’s motion to supplement the 

administrative record.

1

For the reasons explained below, the Court grants VSolvit’s motion to 

supplement the administrative record, but denies VSolvit’s motion for judgment on the 

administrative record. The Court grants the government’s cross-motion for judgment.

I. Factual And Procedural Background2

A. LMPRS And MARS

The USDA’s Agricultural Marketing Service (“AMS”) maintains two data 

collection and reporting systems, LMPRS and MARS, which the Agency utilizes to 

provide to “farmers, producers, and other agricultural businesses the information they 

need to evaluate market conditions, identify trends, make purchasing decisions, 

monitor price patterns, evaluate transportation equipment needs, and accurately assess 

movement.” ECF No. 16 at 138 (AR 130).3 LMPRS is congressionally mandated and

used exclusively to collect and analyze data from the livestock and dairy industries.4 Id.

at 29, 138–39 (AR 21, 130–31). MARS is a voluntary collection of information on a 

broader range of commodities under the USDA’s purview. Id. at 138–39 (AR 130–31). 

These systems are used to generate approximately 1000 market reports each day. Id. at 

23 (AR 15).

Historically, the USDA procured IT operations and maintenance support services 

for LMPRS and MARS under two separate contract vehicles. Id. at 29 (AR 21). Digital 

1 VSolvit also filed a motion to strike a portion of the government’s motion for judgment on the 

administrative record, which the government opposed. ECF No. 22, 27. The Court denies that 

motion as moot, as the issue VSolvit raised does not impact the resolution of this case.

2 The background section that follows constitutes findings of fact by the Court drawn from the 

Administrative Record (“AR”). See, infra, Section III.B.

3 Throughout this opinion, the dual citations to the Administrative Record account for the 

discrepancy between the page number indicated in the Court’s CM/ECF stamp on the PDF 

document and the AR page cite.

4 See Livestock Mandatory Reporting Act of 1999, Pub. L. No. 106-78 § 911, 113 Stat. 1135, codified 

at 7 U.S.C. § 1635(1), (3); Mandatory Price Reporting Act of 2010, Pub. L. No. 111-239, 124 Stat. 

2501, codified at 7 U.S.C. § 1637b.
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Management, Inc. (“DMI”), a Maryland-based contractor, is the incumbent on both of 

these contracts. Id. at 408, 442, 615 (AR 401, 434, 607). DMI was awarded the contract 

for LMPRS in 2010 and, again, in 2015; DMI was awarded the contract for MARS in 

2014 and, again, in 2018. Id. at 615 (AR 607). Because “LMPRS and MARS continue to 

be heavily integrated,” the Agency recognized that cost savings could be realized “by 

consolidating the support contracts for both systems” into one support contract. ECF 

No. 16 at 17, 29 (AR 9, 21).

B. The Solicitation

On April 14, 2020, the USDA issued Solicitation No. 12639520Q0130. ECF No. 16 

at 133 (AR 125). The Solicitation seeks to award a firm fixed price contract to provide IT 

support services, including “monitoring system performance, providing help desk 

support, maintaining system documentation, troubleshooting and implementing 

software solutions, as well as providing system upgrades to ensure continued 

uninterrupted operations” for LMPRS and MARS. Id. at 138 (AR 130). While the 

Agency initially had contemplated competing this requirement on an existing 

department-wide blanket purchase agreement, the Agency ultimately issued the 

Solicitation through the GSA FSS Schedule 70, using Federal Acquisition Regulation 

(“FAR”) Part 8.4 procedures. Id. at 31, 615 (AR 23, 607). Both large and small business 

concerns were eligible to submit offers; the Solicitation did not restrict the competition 

to small businesses. See id. at 138 (AR 130).

As relevant to VSolvit’s protest, the Solicitation differentiated between two 

different “environments”: the technical (sometimes referred to as “testing”)

environment and the development environment. Id. at 140, 145 (AR 132, 137).5 The 

Solicitation explained that the Agency hosts the LMPRS and MARS technical 

environments at the National Information Technical Center in Kansas City, Missouri.

Id. at 140 (AR 132). The Agency further provided 130 pages of information regarding 

the LMPRS technical environment and 34 pages of information regarding the MARS 

technical environment. Id. at 201–331, 332–66 (AR 193–323, 324–58). Among other 

things, these documents included extensive information relating to the software and 

hardware construction, servers, platform, and web server setup and deployment of the 

5 In the IT context, “environment” refers to an entity’s integrated collection of technology 

mechanisms, including infrastructure, software, hardware, and systems. See 

https://www.techopedia.com/definition/8989/production-environment (last visited Dec. 18, 

2020).
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technical environments of LMPRS and MARS. Id. at 241–63, 332–41 (AR 233–55, 324-

33). 

Concerning the development environment, the Solicitation clarified that “[t]he 

Contractor shall be responsible for maintaining . . . the development environment 

hosted at their facility at no cost to the government” and provided as follows:

The environment on which LMPRS/MARS is developed 

should be reasonably compatible with and configured to 

realistically represent the AMS production environment 

described in the Technical Environment to which it will be 

deployed. The contractor shall fully test LMPRS/MARS 

according to contract specifications in the contractor’s environment

prior to deployment in the AMS environment.

Id. at 145, 165 (AR 137, 157) (emphasis added). The Solicitation required the contractor 

to maintain its own development environment and explained that “[t]he contractor is 

not required to make this environment available to AMS to access unless it feels access 

would improve efficiency for supporting LMPRS/MARS.” Id. at 165 (AR 157). The 

Agency made additional information available through a Zoom videoconference 

presentation on April 23, 2020 and responded to 135 questions from potential offerors

during the question-and-answer period, which were later released to all potential 

offerors. Id. at 406, 408–30 (AR 398, 400–22); see id. at 3 (Index to AR at 3) (noting the 

Agency’s release of all the question-and-answers). The Agency made clear to potential 

offerors that the development environment used by DMI, the incumbent contractor, is 

proprietary and that the Agency “does not hold new vendor responsible for what is in 

incumbent [development] environment.” See id. at 421 (AR 413).

Proposals were due May 18, 2020, but the closing date subsequently was 

extended to May 28, 2020 and then again to June 4, 2020. Id. at 384, 395–96 (AR 376, 

387–88). USDA has yet to make an award determination. See id. at 408 (AR 400).

C. Procedural History

VSolvit is a California-based small business technology services provider that 

offers, among other things, IT support services.6 ECF No. 12 (“Am. Compl.”) at ¶ 3. On 

May 5, 2020, VSolvit filed an agency-level protest with the USDA, arguing that the 

Solicitation should not have been issued on an unrestricted basis. ECF No. 16 at 514–16

(AR 506–08). Eight days later, on May 13, 2020, VSolvit sent another letter to the USDA, 

contending that the Solicitation failed to provide offerors with sufficient detail about the 

6 See https://www.vsolvit.com/ (last visited Dec. 21, 2020).
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LMPRS and MARS environments in order to properly estimate costs. Id. at 527–30 (AR 

519–22). Following VSolvit’s unsuccessful efforts with the Agency, on May 26, 2020, 

VSolvit filed a pre-award bid protest with the Government Accountability Office 

(“GAO”). Id. at 545–53 (AR 537–45). 

On July 13, 2020, before GAO rendered a decision, VSolvit filed its initial 

complaint against the United States, in this Court. ECF No. 1. That same day, VSolvit 

notified GAO of the newly filed bid protest with this Court, and, on July 15, 2020, GAO 

dismissed VSolvit’s GAO protest due to a protest action “currently pending before a 

court of competent jurisdiction.” ECF No. 16 at 855, 867–68 (AR 847, 859–60). On July 

24, 2020, VSolvit filed an amended complaint in this case. Am. Compl. at 1. In the 

amended complaint, VSolvit claimed that the Agency: (1) failed to include in the 

Solicitation “essential, routine information” about the existing development 

environment for offerors to compete on an intelligent and equal basis; (2) failed to 

address the possibility that DMI, the incumbent service provider, “has a competitive 

advantage and an unequal access organizational conflict of interest”; and (3) failed to 

consider whether a small business set aside was required before issuing the unrestricted 

solicitation under the FSS. Am. Compl. at ¶¶ 37–55. Accordingly, VSolvit seeks 

injunctive relief, preventing the Agency from awarding a contract under the Solicitation 

until the Agency remedies the alleged Solicitation defects. Id. at 13.

On August 5, 2020, the government filed the Administrative Record in this 

matter. ECF No. 16. On August 26, 2020, VSolvit filed its motion to supplement the 

Administrative Record with the declaration of Mr. Harry Lee, ECF No. 18 (“Pl. Mot. to 

Supp. AR”), and its motion for judgment on the administrative record. ECF No. 19 (“Pl. 

MJAR”). On September 9, 2020, the government filed its cross-motion for judgment on 

the administrative record, ECF No. 20 (“Def. MJAR”), and a response to VSolvit’s 

motion to supplement the administrative record. ECF No. 21 (“Def. Resp. to Pl. Mot. to 

Supp. AR”). On September 16, 2020, VSolvit filed its motion to strike portions of the 

government’s cross-motion for judgment on the administrative record, ECF No. 22 (“Pl. 

Mot. to Strike”), a reply in support of its motion to supplement the administrative 

record, ECF No. 23 (“Pl. Reply in Support of Mot. to Supp. AR”), and a response in 

opposition to the government’s cross-motion for judgment on the administrative record. 

ECF No 24 (“Pl. Resp. to Def. MJAR”). On September 23, 2020, the government filed its 

reply in support of its cross-motion for judgment on the administrative record. ECF No. 

25 (“Def. Reply in Support of MJAR”). On September 30, 2020, the government filed its 

response to VSolvit’s motion to strike portions of the government’s cross-motion for 

judgment on the administrative record. ECF No. 27 (Def. Resp. to Pl. Mot. to Strike”). 

On October 1, 2020, the Court held oral argument. ECF No. 26.
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II. Jurisdiction And Standing

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

1996 (“ADRA”), Pub. L. No. 104-320, 110 Stat. 3870, provides this Court with 

“jurisdiction to render judgment on an action by an interested party objecting to a 

solicitation by a Federal agency for bids or proposals for a proposed contract or to a 

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

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

§ 1491(b)(1). In a pre-award solicitation protest, an interested party is “‘an actual or 

prospective bidder or offeror whose direct economic interest would be effected by the 

award of the contract.’” CGI Fed. Inc. v. United States, 779 F.3d 1346, 1348 (Fed. Cir. 

2015) (quoting Am. Fed’n of Gov’t Emps. v. United States, 258 F.3d 1294, 1299 (Fed. Cir. 

2001)). A prospective bidder is one who, but for the alleged deficiencies in the 

procurement process, would have submitted a bid and diligently pursues its interests

before the solicitation period ends. CGI Fed., 779 F.3d at 1349–51; see MLS-Multinational 

Logistic Servs., Ltd. v. United States, 143 Fed. Cl. 341, 356–59 (2019). 

VSolvit alleges that “it could and would have submitted a bid” but for its various 

concerns with the Solicitation as currently structured. Pl. MJAR at 5. VSolvit also has 

diligently pursued relief with the Agency, GAO, and, now, this Court, all prior to the 

June 4, 2020 due date for proposals. ECF No. 16 at 514, 545, 855 (AR 506, 537, 847). 

Accordingly, VSolvit is an interested party with standing to pursue this matter.

III. Standard Of Review

A. Pre-Award Solicitation Protests

In any action brought under Section 1491(b)(1), the Court reviews “the agency’s 

actions according to the standards set forth in the Administrative Procedure Act, 5 

U.S.C. § 706.” Nat’l Gov't Servs., Inc. v. United States, 923 F.3d 977, 981 (Fed. Cir. 2019) 

(citing 28 U.S.C. § 1491(b)(4)). “In applying this standard of review, we determine 

whether ‘(1) the procurement official’s decision lacked a rational basis; or (2) the 

procurement procedure involved a violation of regulation or procedure.’” Id. (quoting

Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009)). “When a 

challenge is brought on the first ground, the test is ‘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 [agency’s] 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.’” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 
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2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 

1332–33 (Fed. Cir. 2001)) (citation omitted). 

B. Judgment On The Administrative Record And Motion To Supplement 

The Administrative Record

Judgment on the administrative record, pursuant to RCFC 52.1, “is properly 

understood as intending to provide for an expedited trial on the record.” Bannum, Inc. 

v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005). The rule requires the Court “to 

make factual findings from the record evidence as if it were conducting a trial on the 

record.” Id. at 1354. The Court asks whether, given all the disputed and undisputed 

facts, a party has met its burden of proof based on the evidence in the record. See id. 

at 1356–57.

“’[T]he focal point for judicial review should be the administrative record 

already in existence, not some new record made initially in the reviewing court.’” 

Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379 (Fed. Cir. 2009) (quoting 

Camp v. Pitts, 411 U.S. 138, 142 (1973)). Supplementing the existing record is 

appropriate, however, when “the omission of extra-record evidence precludes effective 

judicial review.” Id. at 1380 (internal quotation omitted). This may include “tacit 

knowledge possessed by offeror and agency personnel of a highly technical and 

complex nature, requiring explication via affidavits or expert testimony” or “relevant 

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

discipline, which was inappropriately ignored by an agency.” East West, Inc. v. United 

States, 100 Fed. Cl. 53, 57 (2011) (citations omitted).

IV. The Court Grants VSolvit’s Motion To Supplement The Administrative 

Record

VSolvit seeks to supplement the Administrative Record with the declaration of 

Harry Lee (“Lee Decl.”). Pl. Mot. to Supp. AR at 1. Mr. Lee is a former Acting Chief 

Information Officer with the U.S. Census Bureau, who during that time “reviewed 

requests for proposals and proposal responses for a number of mission-critical 

information technology systems and services . . . within the Department of Commerce.” 

Lee Decl. at ¶ 2. Having reviewed the Solicitation and associated documents, Mr. Lee 

avers that the Solicitation was missing five categories of information that he “would 

have provided . . . so that bidders can submit a quality technical and cost proposal at 

low risk to the contractor and to the Agency,” including:

a. More technical information and detailed configurations 

on ALL environments, including the Development 

Environment; 
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b. Clarification if the contractor is also to provide a 

Development Environment to be used for Unit Testing 

and System Testing, and clarification as to where 

Integration Testing . . . and Environmental Testing will be 

performed;

c. Documentation on how configuration management and 

change management are to be performed so that “the 

environment on which LMPRS\MARS is developed 

should be reasonably compatible with and configured to 

realistically represent the AMS production environment.” 

This requires ALL environments to be properly 

configured, managed and maintained/changed;

d. Documentation on how source code will be promoted 

from environment to environment prior to being released 

into production; and 

e. Details on how to be able to access existing source code 

and test scripts from the incumbent during transition.

Id. at ¶¶ 5–7. Mr. Lee concluded that, “[w]ithout the above information, [he] feel[s] that 

there is insufficient documentation for a bidder to estimate the work to replicate and 

maintain a working development environment” and that “an incumbent contractor is at 

an unfair advantage.” Id. at ¶ 8. 

VSolvit contends that “supplementing the record with [the Lee Declaration] is 

appropriate to assist the Court in understanding [the] technical or complex issues”

associated with this IT support solicitation and to “identify the information an offeror 

would need to intelligently respond to the Solicitation.” Pl. Mot. to Supp. AR at 2; see 

Pl. Reply in Support of Mot. to Supp. AR at 2 (“Protests like this one, which focus on the 

absence of information, create a natural tension between effective judicial review and 

the traditional makeup of the administrative record.” (emphasis in original)). The 

government opposes VSolvit’s motion, arguing that VSolvit has not met its burden “to 

demonstrate why the existing record is so ‘technical or complex’ as to preclude this 

Court’s effective judicial review of the merits.” Def. Resp. to Pl. Mot. to Supp. AR at 4.

The Court grants VSolvit’s motion to supplement the administrative record with 

the Lee Declaration. VSolvit’s protest generally alleges that the Solicitation omitted 

information that was necessary for offerors to compete on an intelligent and equal basis. 

See Pl. MJAR at 6. The Court cannot conceive of a way, except in the rarest of cases, that 

a protestor plausibly could succeed on the merits of this particular type of solicitation 
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challenge without introducing extra-record evidence as to the information that the 

protestor believes was missing from a solicitation and why such information was

necessary to enable offerors to compete on an intelligent and equal basis. Put 

differently, the Court is highly skeptical that an administrative record would ever 

contain the evidence that would allow a protestor to succeed on the merits of this type 

of solicitation challenge.

7

 See Orion Intern. Tech. v. United States, 60 Fed. Cl. 338, 343 

(2004) (“[T]he record may be supplemented with . . . relevant information that by its 

very nature would not be found in an agency record . . . .”). Further, given the 

complexity and highly technical nature of the Agency’s requirements for creating a 

suitable environment for LMPRS and MARS, the Court finds that the Lee Declaration is 

the type of testimony that may be offered to assist in understanding the issues here. See 

Palantir USG, Inc. v. United States, 129 Fed. Cl. 218, 241–42 (2016) (admitting expert 

declaration given the “highly technical nature” of the issues raised in the bid protest). 

The Lee Declaration potentially provides additional insight into the type of 

clarifications and documentation that an offeror would find necessary in preparing a 

proposal in response to such a solicitation. Accordingly, supplementation of the 

Administrative Record with the Lee Declaration is appropriate.8 

V. The Court Denies VSolvit’s Motion For Judgment On The Administrative 

Record And Grants The Government’s Cross-Motion For Judgment On The 

Administrative Record

VSolvit’s motion for judgment on the administrative record presents three 

claims: (1) the Solicitation failed to “provide offerors the information needed to 

compete on an intelligent and common basis,” (2) the Agency failed to “investigate 

and/or address the potential [organizational conflict of interest] arising from the DMI’s 

unequal access to information,” and (3) the Agency failed to “conduct adequate market 

research before issuing the Solicitation on an unrestricted basis.” Pl. MJAR at 5. The 

government, in its cross-MJAR, counters that (1) the Solicitation was “adequate to allow 

offerors to compete on an intelligent and common basis,” (2) the incumbent’s 

7 Imagine, for a moment, the documents that an administrative record would need to contain 

for a protestor to succeed on a challenge that a solicitation failed to provide the necessary 

information to enable intelligent and fair competition. An agency contracting official essentially 

would, in writing, need to admit that the agency believed (or considered the possibility) that its 

solicitation was deficient, that the agency considered providing more information to enable 

intelligent and fair competition, and that the agency nevertheless, and without any rational 

basis, decided against providing the information. 

8 To be sure, this is only a determination that the Lee Declaration is the kind of extra-record 

testimony that the Court should consider, but that does not mean that the declaration 

adequately supports the merits of the protestor’s claims, which are discussed infra, Section V.A.
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“knowledge of its current proprietary development environment [does not] create an 

impermissible OCI,” and (3) the Agency properly issued the Solicitation through the 

FSS using FAR Part 8.4 procedures and thus did not need to consider whether to set 

aside the procurement for small businesses. Def. MJAR at 5–6. The Court agrees with 

the government.

A. VSolvit Has Not Shown That The Solicitation Failed To Provide 

Offerors With Enough Information To Compete On An Intelligent And 

Equal Basis

As a general rule, “’there is no legal requirement that a competition be based on 

specifications drafted in such detail as to eliminate completely any risk for the 

contractor or that the procuring agency remove all uncertainty from the mind of every 

prospective offeror.’” FirstLine Transp. Sec., Inc. v. United States, 107 Fed. Cl. 189, 208 

(2012) (quoting Richen Mgmt., LLC, B-406850, 2012 CPD ¶ 215, 2012 WL 3105118, *3 (Jul. 

31, 2012)). Only “[w]hen a solicitation lacks sufficient detail and permits each offeror to 

define the specification for itself, and to the extent they do so differently, the 

offerors are not competing on an equal basis.” Glenn Def. Marine (Asia) PTE Ltd. v. 

United States, 97 Fed. Cl. 568, 578 (2011). This is an objective, not a subjective, test. Id.

VSolvit first argues that, because “[t]he Solicitation expected the successful 

offeror to transfer the entire development environment to its own facility,” the 

Solicitation lacked sufficient detail about DMI’s development environment. Pl. MJAR at 

7. According to VSolvit, the Solicitation should have included “the state of the 

[incumbent’s development] environment; the testing and management processes the 

incumbent uses; the software used in the [incumbent’s development] environment; the 

software versions the incumbent uses; and how to make all of that compatible with the 

Agency’s environment, so it can be migrated to the Agency’s servers.” Id. VSolvit 

additionally contends that “[t]he Solicitation contained an incomplete list of the 

software DMI uses, . . . did not identify the applicable versions,” and “did not describe 

the processes DMI uses to maintain and promote its environment, such as its quality 

control and testing processes.” Id. From VSolvit’s vantage point, the Lee Declaration 

further bolsters this point, as he asserts that the Solicitation was lacking sufficient 

information regarding the current development environment to allow for offerors to 

determine how to submit a reasonable proposal. Id. 

VSolvit’s argument, and in turn the Lee Declaration, misunderstand the 

requirements of the Solicitation. A successful offeror was required to create its own 

development environment that is “reasonably compatible with and configured to 

realistically represent the AMS production environment described in the Technical 

Environment to which it will be deployed,” ECF No. 16 at 165 (AR 157), not to transfer 

DMI’s existing environment to the successful offeror’s facilities. Indeed, in response to 
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one of the potential offeror’s questions, the Agency expressly provided that “AMS does 

not hold new vendor responsible for what is in incumbent [development] 

environment.” Id. at 421 (AR 413). For that reason alone, the Agency simply was not 

required to provide VSolvit or any other offerors with information regarding DMI’s 

development environment.

VSolvit next, in its reply brief, offers various arguments in an attempt to 

demonstrate that the Solicitation lacked critical information about the Agency’s 

technical environments, thereby preventing offerors from “determin[ing] the type 

of . . . environment necessary to perform the work.” Pl. Resp. to Def. MJAR at 6.

9

 None 

of these arguments are persuasive. 

First, VSolvit suggests that a few of the questions submitted during the questionand-answer period demonstrate that the information in the Solicitation about the 

technical environments was “incomplete” and “confusing (at best).” Id. at 6–7. Two of 

those selected questions asked whether “the Government [could] please update the 

architecture diagrams to show exactly where each technology and tool is used” and 

whether the Agency could provide narrative explanations for “all [the technologies]

mentioned in the solicitation.” Id. (quoting ECF No. 16 at 421–24 (AR 413–16)). VSolvit 

also notes that in response to a third inquiry questioning how some of the technology 

combinations listed for MARS work together, the Agency directed the offeror to a chart 

that, in VSolvit’s opinion, failed to address the problem. Id. at 7. But these possible 

ambiguities must be viewed in the greater context of the information about the technical 

environments that the Agency did provide to offerors. As noted earlier, the Agency 

provided, as part of the Solicitation, 164 pages of detailed information regarding the 

LMPRS and MARS technical environments, respectively, including software and 

hardware construction, servers, platform, and web server setup and deployment of the 

technical environments. ECF No. 16 at 201–331, 332–66 (AR 193–323, 324–58). The 

Agency further supplemented this information through numerous question-and9 VSolvit raises its arguments about the lack of information regarding the Agency’s technical 

environments for the first time in its reply brief. While the Federal Circuit has held that new 

arguments made by the moving party in a reply brief should be disregarded “[a]s a matter of 

litigation fairness” to the non-moving party, see Novosteel SA v. United States, 284 F.3d 1261, 1274 

(Fed. Cir. 2002), this rule is not jurisdictional but rather vests the trial court with discretion to 

consider the arguments. AM Gen., LLC v. United States, 115 Fed. Cl. 653, 667 (2014). As the 

government has responded to the new arguments in VSolvit’s reply brief, see Def. Reply in 

Support of MJAR at 2–5, any possible unfairness to the non-moving party is eliminated, and 

thus the Court will address the merits of the arguments.
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answers that addressed technical aspects of LMPRS and MARS.10 Id. at 408–30 (AR 400–

22). Considering all of this information, the Court must conclude that VSolvit’s alleged 

uncertainties do not result in an impermissibly vague solicitation and are not of 

sufficient “magnitude to justify judicial intervention in this procurement process.” 

Firstline, 107 Fed. Cl. at 211.

Second, VSolvit contends that “[t]he Agency did not even provide version 

information for most of the software it identified” and asserts that “[c]ode that works 

on one version might destroy another.” Id. at 7. VSolvit points to a table in the 

Administrative Record of “MARS Technical Components” that includes a “Version” 

column, in which the Agency placed several “X’s” and alleges that the Solicitation is 

deficient because “[c]ode that works on one version might destroy another.” Id. (citing 

ECF No. 16 at 339–41 (AR at 331–33)). VSolvit has failed to demonstrate, however, that

any particular item of software included in the table even has multiple versions, and the 

Court cannot assume that to be the case absent proof, which VSolvit has the burden to 

provide or demonstrate using the record.

11

 See Am. Contract Servs., Inc., B-256.196, 94-1 

CPD ¶ 342, 1994 WL 263227, *1 (June 2, 1994) (“The mere allegation that a solicitation is 

ambiguous does not make it so.”).12 And, even if certain software does have more than 

one version, VSolvit has not established that the lack of version information impaired 

VSolvit’s ability to compete intelligently. An IT programmer, who is reasonably skilled 

in the art of designing databases, plausibly would understand how to appropriately 

deploy the necessary code. VSolvit’s conclusory assertion that “[c]ode that works on 

one version might destroy another” is not evidence that helps VSolvit meet its “heavy 

10 See Firstline, 107 Fed. Cl. at 209–10 (“[T]he Court is aware of no affirmative rule–in either the 

FAR, statute, or case law–that an agency must make all information that is relevant to a given 

procurement available within the four corners of the solicitation.”). 

11 The Court remains skeptical that certain software even has multiple versions. For example, 

the Agency lists “SQL Server 2012 Enterprise Edition” and includes an “X” in the “Version” 

column. ECF No. 16 at 339 (AR at 331). It seems entirely plausible that the 2012 Enterprise

Edition of SQL Server is the “Version” and, thus, there was no reason for the Agency to list that 

information again in the “Version” column. In sum, simply pointing to a chart that includes 

“X’s” does not establish that the “X’s” are unreasonable. 

12 “Though GAO opinions are not binding on this court, . . . this court may draw on GAO’s 

opinions for its application of this expertise.” Allied Tech. Grp., Inc. United States, 649 F.3d 1320, 

1331 n.1 (Fed. Cir. 2011); see Tech. Innovation All. LLC v. United States, 149 Fed. Cl. 105, 140 n.6 

(2020) (“GAO decisions are not binding on this Court but may be treated as persuasive 

authority in light of GAO’s expertise in the bid protest arena.”).
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burden” that the Agency has acted arbitrarily or irrationally.

13

 See Banknote, 365 F.3d at 

1351. 

B. VSolvit Has Not Demonstrated An Unequal-Access-To-Information

Organizational Conflict Of Interest

VSolvit further asserts that the Agency failed to exercise reasonable discretion in

investigating or addressing a potential unequal-access-to-information organizational 

conflict of interest (“OCI”) given that “DMI is the incumbent and has exclusive access”

to all the IT information necessary for a successful proposal and that this failure “dooms 

this procurement.” Pl. MJAR at 8–10. 

The FAR requires agencies to avoid conflicts of interest in the procurement 

process, including those based upon an offeror’s unequal access to information that “is 

relevant to the contract but is not available to all competitors, and such information 

would assist that contractor in obtaining the contract.” FAR § 9.505(b).14 Critically, 

“[t]he mere existence of a prior or current contractual relationship between a 

contracting agency and a firm does not create an unfair competitive advantage.” PAI 

Corp. v. United States, 614 F.3d 1347, 1353–54 (Fed. Cir. 2010) (quotation omitted). 

Rather, a protestor must provide “hard facts” whereas “a mere inference or suspicion of 

an actual or apparent conflict is not enough” to show that a procurement has been

compromised by an OCI. Turner Const. Co., Inc. v. United States, 645 F.3d 1377, 1387 

(Fed. Cir. 2011) (quotation omitted).

In support of its unequal access OCI claim, VSolvit argues that “DMI is the 

incumbent and has exclusive access to the development environment for the 

LMPRS/MARS systems. . . . [Whereas o]ther offerors face significant risk by guessing at 

requirements.” Pl. MJAR at 9 (emphasis in original). VSolvit further suggests that DMI 

has access to “the exact hardware, software, and configuration of the Agency’s 

production environment . . . which gives it a substantial advantage over other offerors 

that must propose blindly while still remaining competitive against DMI’s alreadydeveloped test environment.” Pl. Resp. to Def. MJAR at 10. But this claim cannot 

succeed as this “attack is short on specifics and long on innuendo–the antithesis of what 

13 For example, the protestor should need to introduce evidence that a certain version of “NPM 

(Node Package Manager)” is only compatible with a certain version of “TWIG (Drupal 8 

Templating Tool)” and that, by not providing the version information, the offeror cannot 

reasonably propose a solution. 

14 The FAR Part 9.5 also regulates two other groups of OCIs, referred to in the case law as 

“biased ground rules” and “impaired objectivity.” See generally Daniel I. Gordon, Organizational 

Conflicts of Interest: A Growing Integrity Challenge, 35 Pub. Cont. L.J. 25, 32 (2005). VSolvit does 

not allege either of these other forms of OCI in their amended complaint. See Am. Compl. at 11.
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the decisional law requires.” ARINC Eng’g Servs., LLC v. United States, 77 Fed. Cl. 196, 

205 (2007). Similar to VSolvit’s first claim, VSolvit has failed to provide this Court with 

specific evidence of non-public information to which DMI has access that provides DMI 

with an unfair competitive advantage. The Agency provided all offerors extensive 

information, 164-pages worth, about the LMPRS and MARS technical environments and 

further sought to clarify any uncertainties through the question-and-answer period. 

ECF No. 16 at 201–331, 332–66 (AR 193–323, 324–58) (information included in 

Solicitation); id. at 408–30 (AR 400–22) (question-and-answers). Conclusory assertions 

and speculation about possible unequal access are insufficient. See AAR Mfg., Inc. v. 

United States, 149 Fed. Cl. 514, 529 (2020); cf. Ernst & Young, LLP v. United States, 136 Fed. 

Cl. 475, 510 (2018) (emphasizing that unequal access OCI must be reflected by evidence 

in the administrative record). Lacking “hard facts,” this Court cannot conclude that 

DMI “had the kind of specific, sensitive information that would create an OCI,” 

Sys. Plus, Inc. v. United States, 69 Fed. Cl. 757, 772 (2006), or that the Agency acted in an 

arbitrary and capricious manner by not taking steps to mitigate an alleged conflict of 

interest. See Aegis Tech. Grp., Inc. v. United States, 128 Fed. Cl. 561, 575 (2016).

Moreover, upon review of VSolvit’s briefs, its real complaint appears to be that 

the incumbent simply is better positioned for the procurement at issue. While this 

might be a legitimate business concern for VSolvit, our case law is clear that “mere 

incumbency does not give rise to an [OCI]” and “that the government need not forego 

the benefits of incumbency in ensuring a level playing field.” ARINC Eng’g Servs., 77 

Fed. at 203–04, 206; see Sys. Plus, 69 Fed. Cl. at 771 (“Incumbent status, without more, 

typically does not constitute ‘unequal access to information’ for purposes of showing an 

OCI.”). GAO decisions similarly confirm that “the government is not necessarily 

required to equalize competition to compensate for such an advantage, unless there is 

evidence of preferential treatment or other improper action.” Superlative Tech., Inc., B415405.2, 2018 CPD ¶ 19, 2018 WL 585679, *5 (Jan. 5, 2018); see also Lovelace Sci. & Tech. 

Servs., B-412345, 2016 CPD ¶ 23, 2016 WL 359122, *8 (Jan. 19, 2016); QinetiQ N. Am., Inc., 

B-405008.2, 2011 CPD ¶ 154, 2011 WL 357875, *9 (July 27, 2011). Nothing in VSolvit’s 

allegations even suggests that DMI has accessed proprietary government information 

“without proper authorization” or “source selection information” that is unavailable to 

other offerors. Superlative Tech., Inc., B-415405.2 at *4 (alterations omitted). 

The Court recognizes that DMI, as the incumbent for LMPRS and MARS, may 

possess a better understanding of the government’s technical environments based on 

DMI’s past experience supporting LMPRS and MARS, but this is merely an “inherent 

incumbent advantage” that the FAR does not prohibit. M7 Aerospace, LLC, B-415252.5, 

2018 CPD ¶ 387, 2018 WL 6191073, *10 (Nov. 9, 2018); see Lovelace Sci. & Tech. Servs., B412345 at *8 (“The existence of an advantage, in and of itself, does not constitute 

preferential treatment by the agency, nor is such a normally occurring advantage 
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necessarily unfair.”). In sum, “[w]hile difficulties sometimes may be encountered in 

distinguishing between the benefits of incumbency and unequal access of the sort that 

gives rise to an [OCI], such is not the case here–as Locke once said, ‘[t]hough no man 

can draw a stroke between the confines of night and day, still light and darkness are on 

the whole tolerably distinguishable.’” ARINC Eng’g Servs., 77 Fed. at 206 (third 

alteration in original).

C. The Agency Was Not Required To Determine Whether The Solicitation 

Should Have Been A Small Business Set-Aside Before Using The FSS

Finally, VSolvit claims that the Agency was required, pursuant to FAR 19.502-

2(b) (“Rule of Two”), to conduct market research to determine whether the solicitation 

should be structured as a small business set aside under a different contract vehicle 

before deciding to use an unrestricted FSS solicitation. See Pl. MJAR at 10–12 (citing FAR 

10.001(a)(2), (3)(viii) (“Agencies shall . . . [c]onduct market research appropriate for the 

circumstances . . . [and u]se the results of market research to . . . [d]etermine whether 

the acquisition should utilize any of the small business programs in accordance with 

part 19[.]”)); Pl. Resp. to Def. MJAR at 11. Although VSolvit concedes, as it must, that 

once the Agency decided to use the FSS, it was not required to set aside the 

procurement for small businesses because FAR 8.404(a) provides that the Rule of Two

does not apply to FSS solicitations, VSolvit contends that the Rule of Two framework 

requires that the Agency reasonably consider alternative contract vehicles at the

beginning of the procurement process. Id. Accordingly, VSolvit concludes that given the 

Agency’s prior usage of small business set-asides for supporting IT staffing 

requirements for LMPRS and MARS, “[h]ad the Agency performed a reasonable 

analysis, it would have concluded that this work’s small business history militated in 

favor of a set aside for small businesses.” Pl. Resp. to Def. MJAR at 11.

This argument fails, however, because, as this Court recently noted, “where the 

FAR intends to make the Rule of Two entirely inapplicable to the selection of a particular 

procurement vehicle, the FAR knows how to do so.” Tolliver Grp., Inc. v. United States, –

– Fed. Cl. ––, 2020 WL 7022493, *37 (Nov. 30, 2020) (emphasis added). In Tolliver, this 

Court explained that FAR Part 8 explicitly exempts agencies from conducting the Rule 

of Two analysis before placing orders against FSS contracts. Id. Thus, “there is no 

requirement for an agency to apply the Rule of Two prior to an agency’s electing to use 

a FAR Part 8 FSS procurement, although the agency has discretion to set-aside such 

procurements after deciding to utilize FAR Part 8.” Id. (emphasis in original). Only 

when an agency intends to select a contract vehicle that does not have an exemption

similar to FAR 8.404(a), does the Rule of Two set-aside determination apply. Id. at *32–

*34, *37 n.64. GAO similarly has observed that there is no “requirement on agencies to 

first evaluate whether a solicitation should be set aside for small businesses before 
- 16 -

purchasing the goods or services through the FSS program.” Walker Dev. & Trading 

Grp., Inc., B-411357, 2015 CPD ¶ 217, 2015 WL 4116859, *2 (July 8, 2015).

D. VSolvit’s Request For Injunctive Relief Is Denied

In evaluating whether permanent injunctive relief is warranted in a particular 

case, see 28 U.S.C. § 1491(b)(2), the Court must consider: (1) whether the plaintiff has 

succeeded on the merits; (2) whether the plaintiff has shown it will suffer irreparable 

harm in the absence of an injunction; (3) whether the balance of the harms favors 

injunctive relief; and (4) whether an injunction serves the public interest. PGBA v. 

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

As VSolvit has failed to succeed on the merits of its various claims in this case, 

the Court does not evaluate the remaining injunctive relief criteria. See Phoenix Mgmt., 

Inc. v. United States, 127 Fed. Cl. 358, 371 (2016) (denying injunctive relief based solely 

on the plaintiff’s failure to succeed on the merits).

CONCLUSION

For all of the above reasons, the Court GRANTS Plaintiff’s motion to 

supplement the administrative record, but DENIES Plaintiff’s motion for judgment on 

the administrative record. The Court GRANTS the government’s cross-motion for 

judgment. Accordingly, Plaintiff’s motion to strike portions of the government’s crossmotion for judgment on the administrative record is DENIED as moot. The Clerk shall 

enter JUDGMENT for Defendant.

IT IS SO ORDERED.

s/Matthew H. Solomson 

Matthew H. Solomson

Judge