In the United States Court of Federal Claims

No. 18-542C

Filed Under Seal: February 15, 2019

Reissued: March 14, 2019*

NOT FOR PUBLICATION

IT CONCEPTS INCORPORATED,

Plaintiff,

v.

THE UNITED STATES,

Defendant,

v.

AVANTGARDE, LLC,

 Defendant-Intervenor.

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Post-Award Bid Protest; Motion For 

Judgment Upon The Administrative 

Record; RCFC 52.1; Injunctive Relief;

Corrective Action. 

Eric S. Crusius, Attorney of Record, Holland & Knight LLP, Tysons, VA; Mary Beth 

Bosco, Of Counsel, Rodney M. Perry, Of Counsel, Holland and Knight LLP, Washington, DC, 

for plaintiff.

Steven C. Hough, Trial Attorney, Elizabeth M. Hosford, Assistant Director, Robert E. 

Kirschman, Jr., Director, Joseph H. Hunt, Assistant Attorney General, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC; Abigail 

Nawrocki, Of Counsel, P. Russell Wong, Of Counsel, United States Patent and Trademark 

Office, for defendant.

William A. Shook, Counsel of Record, Law Offices of William A. Shook PLLC, 

Washington, DC, for defendant-intervenor.

 

* This Memorandum Opinion and Order was originally filed under seal on February 15, 2019

(docket entry no. 54). The parties were given an opportunity to advise the Court of their views

with respect to what information, if any, should be redacted from the Memorandum Opinion and

Order. The parties filed a joint status report on March 12, 2019 (docket entry no. 56)

proposing certain redactions, which the Court has adopted. And so, the Court is reissuing the

Memorandum Opinion and Order, dated February 15, 2019, with the agreed-upon redactions

indicated by three consecutive asterisks within brackets ([* * *]).
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MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

In this post-award bid protest matter, IT Concepts Incorporated, (“ITC”) challenges the 

decision of the United States Patent and Trademark Office (“USPTO”) to take certain corrective 

action in connection with a solicitation for human resource information systems division support 

services. See generally Am. Compl. The parties have filed cross-motions for judgment upon the 

administrative record on the issues of whether the USPTO’s decision to take corrective action—

and the scope of the proposed corrective action—were rational, pursuant to Rule 52.1 of the 

Rules of the United States Court of Federal Claims (“RCFC”). See generally Pl. Mot.; Def. 

Mot.; Def.-Int. Mot. For the reasons discussed below, the Court: (1) DENIES ITC’s motion for 

judgment upon the administrative record; (2) GRANTS the government’s and AvantGarde 

LLC’s (“AvantGarde”) respective cross-motions for judgment upon the administrative record; 

and (3) DISMISSES the complaint.

II. FACTUAL AND PROCEDURAL BACKGROUND1

A. Factual Background 

ITC is the current awardee of a government contract to provide human resource 

information system division support services (the “HRIS Contract”). AR Tab 33 at 1267. In this 

post-award bid protest matter, ITC challenges the USPTO’s decision to take certain corrective

action following the award of the HRIS Contract to ITC and the filing of a United States 

Government Accountability Office (“GAO”) protest related to the agency’s solicitation for that 

contract by AvantGarde. Am. Compl. at ¶ 1. Specifically, ITC alleges that the USPTO’s 

decision to take corrective action based upon the GAO protest is unreasonable under the 

circumstances and that the scope of the agency’s corrective action is overly broad. Id. at ¶¶ 31-

40. And so, ITC requests, among other things, that the Court declare that the USPTO’s decision 

 

1 The facts recited in this Memorandum Opinion and Order are taken from the administrative record 

(“AR”); plaintiff’s amended complaint (“Am. Compl.”); plaintiff’s motion for judgment upon the 

administrative record (“Pl. Mot.”); and the government’s and AvantGarde’s respective cross-motions for 

judgment upon the administrative record (“Def. Mot.” and “Def.-Int. Mot.”). Except where otherwise 

noted, all facts recited herein are undisputed.
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to take corrective action is unreasonable and enjoin the USPTO from awarding the HRIS 

Contract to any offeror other than ITC. Id. at Prayer for Relief.

1. The Solicitation 

On December 19, 2017, the USPTO issued solicitation number 272P1800032 for human 

resource information systems division support services as a United States Small Business 

Administration set-aside (the “Solicitation”). AR Tab 6 at 60-61. The Solicitation sought 

proposals to provide services that “support the HR Connect platform . . . report[] services for the 

purpose of generating analytical information . . . internal web-site administration, and business 

process review and improvement activities” and that “support the day to day operations and 

objectives” of the agency. Id. at 124-25. 

The Solicitation for the HRIS Contract involves an indefinite-delivery, indefinite-quantity 

(“IDIQ”) contract with a one-year base period and four one-year options. Id. at 61. Pursuant to 

the terms of the Solicitation, the USPTO intends to issue firm-fixed-price task orders against this 

IDIQ contract, with the first task order to be issued in accordance with the Statement of Work 

and future task orders issued on an “as required” basis. Id. 

The Solicitation provides that the USPTO would evaluate responsive proposals based 

upon three evaluation factors: (1) Technical Capabilities and Experience; (2) Past Performance; 

and (3) Price. Id. at 119. The Solicitation further provides that the USPTO will award the HRIS 

Contract based upon the “lowest evaluated price of responses meeting or exceeding the 

acceptability standards for non-price factors.” Id. at 121. 

Specifically relevant to this dispute, the Solicitation requires that offerors submit firmfixed-price quotes for the base year and four option year periods. Id. In this regard, the 

Solicitation provides that “[e]ach labor category represents a fully-burdened hourly rate for each 

skills classification.” Id. at 120. The Solicitation also provides that “[a]ll hourly rates are based 

on a 40 hour work week,” and that “[a] Full Time Equivalent (“FTE”) is calculated at 1900 hours 

per year.” Id. at 120-21. 

On January 11, 2018, the USPTO received responsive proposals to the Solicitation from 

ITC, AvantGarde, and another offeror—[* * *]. See generally AR Tabs 9-11. Because the 

USPTO found that these offerors submitted firm-fixed prices—and that there was “confusion” 

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[AvantGarde should] leave the 1900 hours in the block and just fill in the rate and 

total for the CLIN. The CLIN [0007] is optional but the CLIN table should still be 

completed to show what the price would be for the CLIN if it were in fact to be 

funded. 

AR Tab 17 at 468. Thereafter, AvantGarde telephoned the USPTO’s contracting officer “to 

clarify . . . that the Amended [Solicitation] remained a fixed price quote.” AR Tab 50 at 1582 

(“Is the government forcing me to bid exactly 1900 hours per FTE per CLIN or do I have the 

discretion since this is a fixed-price to bid less per FTE like for example, if I wanted to bid say 

1880 per year to further offer the government a discount, is that ok?”). The USPTO’s 

contracting officer responded, in error, that “[t]his is a fixed price contract evaluated by Fixed 

Price dollar amount for the base year plus option periods.” Id.2

2. Award To ITC 

On January 23, 2018, ITC and AvantGarde submitted revised proposals in response to the 

amended Solicitation. See generally AR Tabs 18-19. In their revised proposals, ITC and 

AvantGarde both submitted firm-fixed-prices. AR Tab 18 at 472 (stating that AvantGarde’s 

“Critical Assumptions” refer to “FP”); AR Tab 19 at 512 (“ITC’s pricing is provided as firm 

fixed price.”).

During the evaluation of the revised proposals, the UPSTO evaluated the lowest-priced 

offeror—AvantGarde—first, consistent with the terms of the Solicitation. See AR Tab 6 at 121. 

The agency determined that AvantGarde “submitted a price quote that does not conform to the 

instructions in the RFQ.” AR Tab 20 at 514. Specifically, the USPTO determined that 

AvantGarde: 

[P]roposed pricing for less than the minimum quantity of required hours. The RFQ 

states a minimum requirement of 13,300 hours which equates to 7 Full Time 

Equivalent (FTE) positions based upon the statement that 1,900 hours is equal to 1 

FTE. 

The vendor proposed [* * *]. This is not acceptable as it does not meet the minimum 

number of required hours as stated in the RFQ.

 

2 The administrative record reflects that the USPTO’s contracting officer “do[es] not remember the exact 

conversation that took place [with AvantGarde],” but does remember “confirming the contract type for 

the task orders to be issued against the IDIQ will be Firm-Fixed-Price,” and that he “never stated that 

decreasing or ‘discounting’ the hours would be acceptable.” AR Tab 46 at 1497.
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AR Tab 27 at 1197. And so, the USPTO concluded that AvantGarde’s proposal was 

unacceptable. AR Tab 31 at 1210. 

During the evaluation of ITC’s revised proposal, the USPTO determined that ITC’s 

“price quote was submitted in accordance with the instructions in the RFQ and is acceptable.” 

Id.; AR Tab 20 at 514. The USPTO also determined that ITC’s proposal was technically 

acceptable. AR Tab 30 at 1205-08; AR Tab 31 at 1210. And so, the USPTO awarded the HRIS 

Contract to ITC on January 30, 2018. AR Tab 33 at 1267. 

3. AvantGarde’s GAO Protest And The USPTO’s Corrective Action

On January 31, 2018, the USPTO notified AvantGarde that it had not been awarded the 

HRIS Contract. AR Tab 35 at 1275. On February 1, 2018, AvantGarde filed a protest before the 

GAO challenging the award of the HRIS Contract to ITC. See generally AR Tab 41. 

During the GAO protest, AvantGarde argued, among other things, that the Solicitation as 

amended contained a latent ambiguity “as to whether [an offeror] was required to bid 1900 hours 

for each position even though it was offering to perform all of the work in the Statement of Work 

for its annual fixed-price.” Id. at 1315. On February 14, 2018, the USPTO moved to dismiss 

AvantGarde’s protest upon the grounds that: (1) the Solicitation was unambiguous; (2) 

AvantGarde’s protest was untimely; and (3) AvantGarde lacked standing. AR Tab 46 at 1347-

51. On February 20, 2018, the GAO denied the USPTO’s motion to dismiss. AR Tab 51 at 

1614. 

After the GAO denied the USPTO’s motion to dismiss, the “USPTO determined that it is 

in the agency’s best interest to take corrective action” and the agency stated its intent to 

“amend[] the solicitation language, request[] updated proposals and conduct[] a new evaluation”

on February 27, 2018. AR Tab 53 at 1618. In reaching the decision to take this corrective 

action, the USPTO determined that “the language in the [amended Solicitation] may not have 

been clear enough for the [offerors] to understand the USPTO’s intentions.” AR Tab 70 at 1966-

67. And so, the agency concluded that “the purpose of the corrective action is to provide clarity 

as to the agency’s requirement, so that all parties have the same understanding of the contract 

type to be awarded and what the Agency is procuring (hours and not FTEs).” Id. at 1967. 
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4. United States Court Of Federal 

Claims Litigation And Remand Proceedings 

After ITC commenced this matter on April 13, 2018, the government successfully moved 

to stay and voluntarily remand this matter to the USPTO, to permit the agency to reconsider the

determination that it is in the agency’s best interest to take corrective action, and to further 

document the agency’s decision-making process. See generally Mot. to Remand, dated April 24, 

2018; see also Stay and Remand Order, dated April 25, 2018. 

On April 30, 2018, the USPTO issued two memoranda for the record stating the reasons 

for the agency’s decision to take corrective action and the plan for implementing the proposed 

corrective action. In the memoranda, the USPTO explained the reasons for its decision to take 

corrective action as follows:

The RFQ was issued with the anticipation that the vendors would respond by

quoting 1,900 hours per CLIN. . . . It was anticipated that an IDIQ contract would 

be awarded and the first Task Order would be issued for CLINs 0001– 0006 for a 

fixed price per CLIN requiring the vendor to deliver 1,900 hours for each of the 

labor categories described under CLINs 0001– 0006. 

AR Tab 70 at 1966. The USPTO further explained that:

There was a fundamental misunderstanding of the Agency’s requirement. The 

vendors each thought they were competing for a firm-fixed-price contract where 

the Government was procuring a fixed scope of work . . . . There were 

communications with the vendors that may have been construed that the Agency 

intended a firm-fixed-price contract as opposed to an IDIQ.

Id. at 1966-67. And so, the USPTO concluded that “[c]orrective action is needed to clarify this 

misunderstanding and to allow all parties to have the same understanding of the Agency’s 

requirement.” Id. at 1967.

In addition, the USPTO identifies several steps that it intends to take to implement the

proposed corrective action. See generally AR Tab 71. First, the USPTO states that:

[It] intends to revise the solicitation language to state that an Indefinite Delivery 

Indefinite Quantity (IDIQ) contract will be awarded and the contract type for Task 

Orders issued against the IDIQ will be Labor Hours. . . . It was determined that a 

Firm-Fixed-Price contract type for the Task Orders does not provide the flexibility 

the program office requires in order to operate successfully. The program officer’s 

requirements are fluid in nature and Firm-Fixed-Price is not conducive to fluid 

requirements. Labor Hours represents the best contract type to meet the 

requirements of the program office. 
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AR Tab 71 at 1968. Second, the USPTO states that it will change the evaluation process for the 

Solicitation from lowest price technically acceptable (“LPTA”) to a tradeoff, because the 

“Tradeoff Process will result in a contract award that best meets the requirements of the program 

office.” Id. 

Lastly, the USPTO states that it will add language to the Solicitation to explain the 

structure of the HRIS Contract. Id. In this regard, the USPTO explains that: 

Vendors will be required to respond to the solicitation with a price quote for the 

requirements of the first Task Order (CLINs 0001– 0006). CLIN 0007 is optional 

and if required, a separate Task Order will be issued. Additional Task Orders may 

be issued in the future for within scope requirements on an as required basis. 

Id. 

B. Procedural Background

On April 13, 2018, ITC filed the complaint in this bid protest matter. See generally

Compl. On April 16, 2018, AvantGarde filed a motion to intervene, which the Court granted on 

April 17, 2018. See generally Mot. to Intervene; Order, dated April 17, 2018. On April 17, 2018 

the Court entered a Protective Order in this matter. See generally Protective Order. 

On April 25, 2018, the Court granted the government’s motion to stay and voluntarily

remand this matter to the USPTO. See generally Stay and Remand Order, dated April 25, 2018. 

Following the remand period, the government filed the administrative record on May 2, 

2018. See generally AR. On May 16, 2018, ITC filed an amended complaint. See generally

Am. Compl. 

On May 23, 2018, ITC filed a motion for judgment upon the administrative record. See 

generally Pl. Mot. On August 3, 2018, the government and AvantGarde filed their respective 

cross-motions for judgment upon the administrative record and responses and oppositions to 

ITC’s motion for judgment upon the administrative record. See generally Def. Mot.; Def.-Int. 

Mot. 

On August 27, 2018, ITC filed a response and opposition to the government’s and 

AvantGarde’s respective cross-motions for judgment upon the administrative record. See 

generally Pl. Resp. On October 24, 2018, the government and AvantGarde filed their respective 
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reply briefs in support of their cross-motions for judgment upon the administrative record. See 

generally Def. Reply; Def.-Int. Reply.

These matters having been fully briefed, the Court resolves the pending motions. 

III. LEGAL STANDARDS 

A. Bid Protest Jurisdiction

The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid 

protests brought 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). This Court reviews agency actions in bid protest matters 

under the Administrative Procedure Act’s “arbitrary and capricious” standard. See 28 U.S.C. § 

1491(b)(4) (adopting the standard of review set forth in the Administrative Procedure Act). 

Under this standard, an award may be set aside if “‘(1) the procurement official’s decision lacked 

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

procedure.’” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) 

(quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 

(Fed. Cir. 2001)). In this regard, the United States Court of Appeals for the Federal Circuit has 

explained that:

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 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.

Id. at 1351 (internal citations omitted).

In reviewing an agency’s procurement decision, the Court also recognizes that the 

agency’s decision is entitled to a “presumption of regularity.” Citizens to Preserve Overton 

Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), abrogated on other grounds by Califano v. 

Sanders, 430 U.S. 99 (1977) (citations omitted). In addition, the Court should not substitute its 

judgment for that of the agency. Cincom Sys., Inc. v. United States, 37 Fed. Cl. 663, 672 (1997). 

And so, “‘[t]he protestor must show by a preponderance of the evidence that the agency’s actions 
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were either without a reasonable basis or in violation of applicable procurement law.’” Gentex 

Corp. v. United States, 58 Fed. Cl. 634, 648 (2003) (quoting Info. Tech. & Applications Corp. v. 

United States, 51 Fed. Cl. 340, 346 (2001), aff’d, 316 F.3d 1312 (Fed. Cir. 2003)).

This standard “is highly deferential.” Advanced Data Concepts, Inc. v. United States,

216 F.3d 1054, 1058 (Fed. Cir. 2000). As long as there is “a reasonable basis for the agency’s 

action, the court should stay its hand even though it might, as an original proposition, have 

reached a different conclusion . . . .” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. 

Cir. 1989) (citation omitted). But, if “the agency entirely fail[s] to consider an important aspect 

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

before the agency,” then the resulting action lacks a rational basis and, therefore, is defined as 

“arbitrary and capricious.” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 

1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. 

Co., 463 U.S. 29, 43 (1983)) (internal quotation marks omitted).

B. Judgment Upon The Administrative Record

Generally, RCFC 52.1 limits this Court’s review of an agency’s procurement decision to 

the administrative record. RCFC 52.1; see Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 

1374, 1379 (Fed. Cir. 2009) (“[T]he focal point for judicial review should be the administrative 

record already in existence.”). And so, unlike a summary judgment motion brought pursuant to 

RCFC 56, “the existence of genuine issues of material fact does not preclude judgment on the 

administrative record” under RCFC 52.1. Tech. Sys., Inc. v. United States, 98 Fed. Cl. 228, 242 

(2011) (citations omitted); RCFC 56. Rather, the Court’s inquiry is whether, “given all the 

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

record.” A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131 (2006).

C. Corrective Action 

An agency’s corrective actions are reviewed under the Administrative Procedure Act’s 

“highly deferential” “rational basis” standard. Dell Fed. Sys., L.P. v. United States, 906 F.3d 

982, 992 (Fed. Cir. 2018) (quoting Croman Corp. v. United States, 724 F.3d 1357, 1363 (Fed. 

Cir. 2013) (internal quotation marks and citation omitted); see also Raytheon Co. v. United 

States, 809 F.3d 590, 595 (Fed. Cir. 2015) (explaining that, “for us to uphold the [agency’s] 

decision to reopen the bidding process, it is sufficient . . . that the grounds relied on by the 
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[agency] . . . rationally justified the reopening under governing law”). The Federal Circuit has 

held that the rational basis test asks “whether the contracting agency provided a coherent and 

reasonable explanation of its exercise of discretion.” Dell Fed. Sys., 906 F.3d at 992 (quoting

Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (internal 

quotation marks and citation omitted)). 

This Court has also held that the government is not obliged to admit an error as a 

precondition to proposing corrective action, nor is it “necessary for an agency to conclude that 

the protest is certain to be sustained before it may take corrective action.” Data Monitor Sys., 

Inc. v. United States, 74 Fed. Cl. 66, 74 (2006) (quoting ManTech Telecomm. and Info. Sys. 

Corp. v. United States, 49 Fed. Cl. 57, 72 n.24) (2001) (citation omitted). And so, “where the 

agency has reasonable concern that there were errors in the procurement, even if the protest 

could be denied . . . it [is] within the agency’s discretion to take the corrective action.” Id.

The Federal Circuit has also observed that corrective action in the bid protest context is 

an “agency action, usually taken after a protest has been initiated, to correct a perceived prior 

error in the procurement process, or, in the absence of error, to act to improve the competitive 

process.” Dellew Corp. v. United States, 855 F.3d 1375, 1378 n.2 (Fed. Cir. 2017); see also Dell 

Fed. Sys., 906 F.3d at 986 n.1. And so, the task of the Court in assessing whether corrective 

action is reasonable is to determine: (1) whether the record supports the agency’s finding of 

flaws in the procurement process warrants corrective action and (2) whether the corrective action 

taken was reasonable under the circumstances. Sierra Nevada Corp. v. United States, 107 Fed. 

Cl. 735, 750 (2012).

D. Injunctive Relief 

Lastly, this Court “may award any relief [it] considers proper, including declaratory and 

injunctive relief” pursuant to its bid protest jurisdiction. 28 U.S.C. § 1491(b)(2); see also 

Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009). In deciding whether 

to issue a permanent injunction, the Court “considers: (1) whether . . . the plaintiff has succeeded 

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

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

the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive relief.” 

PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004) (citing Amoco Prod. Co. 
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v. Vill. of Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987) (“The standard for a preliminary 

injunction is essentially the same as for a permanent injunction with the exception that the 

plaintiff must show a likelihood of success on the merits rather than actual success.”); see also

Centech Grp., Inc., 554 F.3d at 1037. In this regard, the Federal Circuit has held that:

No one factor, taken individually, is necessarily dispositive. If a preliminary 

injunction is granted by the trial court, the weakness of the showing regarding one 

factor may be overborne by the strength of the others. If the injunction is denied, 

the absence of an adequate showing with regard to any one factor may be sufficient, 

given the weight or lack of it assigned the other factors, to justify the denial.

FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (citations omitted). 

A plaintiff who cannot demonstrate actual success upon the merits cannot prevail upon a 

motion for permanent injunctive relief. Cf. Nat’l Steel Car, Ltd. v. Canadian Pacific Ry., Ltd., 

357 F.3d 1319, 1325 (Fed. Cir. 2004) (finding that a plaintiff who cannot demonstrate likely 

success upon the merits cannot prevail upon its motion for preliminary injunctive relief). In this 

regard, this Court has also found success upon the merits to be “the most important factor for a 

court to consider when deciding whether to issue injunctive relief.” Dellew Corp. v. United 

States, 108 Fed. Cl. 357, 369 (2012) (citing Blue & Gold Fleet, L.P. v. United States, 492 F.3d 

1308, 1312 (Fed. Cir. 2007)). But, while success upon the merits is necessary, it is not sufficient 

alone for a plaintiff to establish that it is entitled to injunctive relief. See Contracting, 

Consulting, Eng’g LLC v. United States, 104 Fed. Cl. 334, 353 (2012) ((“Although plaintiff’s 

entitlement to injunctive relief depends on its succeeding on the merits, it is not determinative 

because the three equitable factors must be considered, as well.”) (citations omitted)). 

IV. LEGAL ANALYSIS 

The parties have filed cross-motions for judgment upon the administrative record on the 

issues of whether the USPTO’s decision to take corrective action in connection with the 

Solicitation for the HRIS Contract—and the scope of the proposed corrective action—are

rational under the circumstances presented in this case, pursuant to RCFC 52.1. See generally 

Pl. Mot.; Def. Mot.; Def.-Int. Mot. ITC argues in its motion for judgment upon the 

administrative record that the USPTO’s decision to take corrective action is irrational because: 

(1) the agency failed to articulate a reasonable explanation for this decision; (2) AvantGarde’s 

GAO protest would have been dismissed or denied; and (3) AvantGarde was not eligible for 
13

award of the HRIS Contract. Pl. Mot. at 8-18. ITC also argues that the scope of the USPTO’s 

proposed corrective action is “irrationally overbroad,” because any flaws in the procurement 

process for the HRIS Contract do not justify re-issuing the Solicitation and making a new award 

decision. Id. at 18-19. And so, ITC requests that the Court set aside the USPTO’s decision to 

take corrective action and declare that the USPTO properly awarded the HRIS Contract to ITC. 

Id. at 20. 

The government and AvantGarde counter in their respective cross-motions that the 

USPTO’s decision to take corrective action—and the scope of the proposed corrective action—

are rational under the circumstances presented in this case, because there is a need for the 

USPTO to: (1) clarify the type of contract being solicitated and that the USPTO is procuring 

labor hours; (2) respond to the issues raises in AvantGarde’s GAO protest; and (3) ensure that 

the services procured meet the agency’s needs. Def. Mot. at 14-21; Def.-Int. Mot. at 5. In 

addition, the government argues that the USPTO has properly documented and explained the 

decision to take corrective action in the administrative record. Def. Mot. at 15. And so, the 

government and AvantGarde request that the Court sustain the USPTO’s decision to take 

corrective action and dismiss this bid protest dispute. Def. Mot. at 31; see also Def.-Int. Mot. at 

2, 5.

For the reasons discussed below, the administrative record in this matter shows that the 

USPTO reasonably decided to take corrective action to address perceived prior flaws in the 

Solicitation for the HRIS Contract and that the scope of the agency’s proposed corrective action 

is reasonable considering AvantGarde’s GAO protest and the agency’s needs. And so, the Court: 

(1) DENIES ITC’s motion for judgment upon the administrative record; (2) GRANTS the 

government’s and AvantGarde’s respective cross-motions for judgment upon the administrative 

record; and (3) DISMISSES the complaint.

A. The USPTO’s Decision To Take Corrective Action Is Reasonable 

As an initial matter, the administrative record shows that the USPTO has provided a

reasonable and coherent explanation for its decision to take corrective action in connection with 

the Solicitation for the HRIS Contract. It is well-established that this Court reviews the 

USPTO’s decision to take corrective action under the Administrative Procedure Act’s “highly 

deferential” “rational basis” standard. Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 992 
14

(Fed. Cir. 2018) (quoting Croman Corp. v. United States, 724 F.3d 1357, 1363 (Fed. Cir. 2013) 

(internal quotation marks and citation omitted)). And so, the Court will not set aside the 

USPTO’s decision to take corrective action, unless the proposed corrective action is 

unreasonable under the circumstances presented in this case. Id. 

In its cross-motion for judgment upon the administrative record, the government argues 

that the USPTO appropriately determined that it was necessary to re-issue the Solicitation for the 

HRIS Contract, so that the agency could clarify the type of contract being solicited, clarify that 

the USPTO was procuring labor hours, and respond to the issues raised in AvantGarde’s GAO 

protest. Def. Mot. at 16-19. The government also argues that the administrative record shows 

that the USPTO’s decision to take this corrective action is reasonable for four reasons: (1) the 

USPTO determined that there was a fundamental misunderstanding among the offerors about the 

type of contract being procured by the USPTO; (2) the USPTO reasonably determined that it was 

necessary to clarify that the agency was procuring labor hours rather than FTEs; (3) corrective 

action is necessary to respond to AvantGarde’s GAO protest after the GAO denied the USPTO’s

motion to dismiss; and (4) taking corrective action would ensure that the services procured under 

the HRIS Contract meet the USPTO’s needs. Id. at 14-24. For the reasons set forth below, the 

Court agrees.

First, the administrative record shows that the USPTO reasonably determined that there 

was a “fundamental misunderstanding” among the offerors regarding the type of contract being 

solicited in connection with the HRIS Contract. Specifically, the administrative record shows 

that, during the procurement process for the HRIS Contract, several offerors raised questions, or 

made statements to the USPTO, indicating that it was unclear that the USPTO was soliciting 

proposals for an IDIQ contract. AR Tab 70 at 1966. 

In this regard, the Solicitation as amended provides that: 

The Government intends to award a single award Indefinite Delivery Indefinite 

Quantity (IDIQ) contract for a base year and four one-year option periods . . . . The 

Government intends to issue Firm-Fixed-Price Task Orders against the IDIQ. 

AR Tab 14 at 385. But, despite the agency’s desire to award an IDIQ contract, the 

administrative record shows that the USPTO determined that:
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There was a fundamental misunderstanding of the Agency’s requirement. The 

vendors each thought they were competing for a firm-fixed-price contract where

the Government was procuring a fixed scope of work . . . . There were 

communications with the vendors that may have been construed that the Agency 

intended a firm-fixed-price contract as opposed to an IDIQ. 

AR Tab 70 at 1966. And so, the administrative record also shows that the USPTO concluded 

that it needed to take corrective action to clarify the type of contact that the agency intended to 

award. 

The USPTO’s determination to take corrective action for this reason is reasonable. The 

administrative record makes clear that there was uncertainty about the type of contract that the 

USPTO was soliciting from the outset of this procurement. In fact, the record evidence shows 

that the USPTO found that the initial proposals submitted by several offerors—including 

AvantGarde and ITC—incorrectly assumed that the USPTO was procuring a firm-fixed-price 

contract. See AR Tab 9 at 207 (stating that AvantGarde’s “Critical Assumptions” refer to “FP”); 

AR Tab 10 at 258 (“ITC’s pricing is provided as firm fixed price.”); AR Tab 11 at 295 (“[* * *]

has included our firm-fixed price quote . . . .”).

The record evidence also shows that the USPTO’s efforts to correct this 

misunderstanding by amending the Solicitation were unsuccessful. See AR Tab 14 at 383. After 

AvantGarde inquired about whether the expectation was for the USPTO to receive a firm-fixedprice quote under the amended Solicitation, the USPTO’s contracting specialist responded in 

error that the agency expected to receive a firm-fixed-price quote. AR Tab 50 at 1582. The 

record evidence also shows that ITC and AvantGarde both submitted firm-fixed-prices in their 

revised proposals. AR Tab 18 at 472 (stating that AvantGarde’s “Critical Assumptions” refer to 

“FP”); AR Tab 19 at 512 (“ITCs pricing is provided as firm fixed price.”). And so, the 

government persuasively argues that the administrative record supports the USPTO’s 

determination that corrective action is necessary to address misperceptions about the type of 

contract that the agency intends to award.

While somewhat less persuasive, the government’s argument that corrective action is also 

necessary in this case to clarify that the USPTO is procuring labor hours rather than FTEs under 

the HRIS Contract has some support in the administrative record. 
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The administrative record shows that there was confusion—at least on the part of 

AvantGarde—about whether the USPTO intended to procure labor hours during the procurement 

process for the HRIS Contract. Specifically, the administrative record shows that, during the 

initial round of the procurement, the USPTO found that AvantGarde was unclear regarding 

whether the agency was procuring labor hours or FTEs. AR Tab 13 at 379-80; AR Tab 70 at 

1966; see also AR Tab 18 at 472 (stating that AvantGarde’s critical assumptions state “basis of 

hours on FTE at 1880 (discounted for USPTO from standard 1900)”). To clarify that the agency 

was in fact seeking labor hours, rather than FTEs, the USPTO amended the Solicitation by 

updating the pricing table to show “1900” as the “Quantity” for each CLIN and stating that CLIN 

0007 was “Optional.” See AR Tab 14 at 383–87. 

The agency also responded to a question from AvantGarde regarding the labor hours for 

CLIN 0007 Data Analytics by stating that:

[AvantGarde should] leave the 1900 hours in the block and just fill in the rate and 

total for the CLIN. The CLIN [0007] is optional but the CLIN table should still be 

completed to show what the price would be for the CLIN if it were in fact to be 

funded. 

AR Tab 17 at 468. The administrative record shows, however, that AvantGarde remained 

unclear about whether the USPTO required labor hours or FTEs. See AR Tab 20 at 514 (stating 

that AvantGarde “submitted a price quote [in its revised proposal] that [did] not conform to the 

instructions in the RFQ”). And so, there is some support in the record evidence for the USPTO’s 

decision to take corrective action to clarify that the agency intends to procure labor hours.

3

The Court is also not persuaded by ITC’s argument that the USPTO’s decision to take 

corrective action is irrational, because the amended Solicitation is not ambiguous with regards to 

the agency’s requirements. Pl. Mot. at 9-14. As the Federal Circuit has recognized, the USPTO 

may take corrective action within the context of this bid protest “to correct perceived prior error 

in the procurement process or, in the absence of error, to act to improve the competitive 

process.” Dellew Corp. v. United States, 855 F.3d 1375, 1378 n.2 (Fed. Cir. 2017); see also Dell 

Fed. Sys., 906 F.3d at 986 n.1. And so here, the Court need not find that the amended 

 

3 As ITC correctly observes in its motion for judgment upon the administrative record, the administrative 

record also shows that ITC and other offerors complied with USPTO’s requirement. Pl. Mot. at 11; AR 

Tab 19 at 502; AR Tab 22 at 598. But, AvantGarde’s confusion about the USPTO’s requirement is borne 

out in the administrative record. 
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Solicitation is ambiguous to conclude that the USPTO reasonably decided to take steps to correct 

prior perceived flaws in the Solicitation regarding the agency’s requirements. 

The record evidence also shows that the USPTO appropriately decided to take corrective 

action in response to AvantGarde’s GAO protest, after the GAO denied the agency’s motion to 

dismiss. In its motion for judgment upon the administrative record, ITC argues that the 

USPTO’s decision to take corrective action in response to AvantGarde’s GAO protest is 

irrational, because that protest would have been denied or dismissed. Pl. Mot. at 15. But, as this 

Court has long recognized, it is not necessary for the USPTO to conclude that the protest is 

certain to be sustained before it may take corrective action. Data Monitor Sys., Inc. v. United 

States, 74 Fed. Cl. 66, 74 (2006) (citations omitted). 

In this case, the administrative record also shows that the USPTO reasonably decided to 

take steps to clarify its requirements for the HRIS Contract after the GAO denied the agency’s 

motion to dismiss AvantGarde’s GAO protest. Notably, the administrative record makes clear

that the USPTO unsuccessfully moved to dismiss that protest upon the grounds that AvantGarde 

lacked standing, the protest was untimely, and that the amended Solicitation was not ambiguous. 

AR Tab 46 at 1347-51; AR Tab 51 at 1614. While ITC makes similar arguments in this 

litigation—to show that the USPTO’s decision to take corrective action is irrational—the GAO 

rejected these arguments and allowed AvantGarde’s protest to proceed. AR Tab 51 at 1614. 

Given this, ITC simply has not shown that the USPTO’s decision to take corrective action in 

response to AvantGarde’s GAO protest lacks a rational basis.4 

Lastly, the government persuasively argues that the USPTO reasonably determined that 

taking corrective action in this case will ensure that the services procured under the HRIS 

Contract meet the agency’s needs. In its April 30, 2018, memorandum regarding implementation 

of the agency’s proposed corrective action, the USPTO explains that, “a firm-Fixed-Price 

contract type for the Task Orders [to be issued under the HRIS Contract] does not provide the 

flexibility that the program office requires to operate successfully.” AR Tab 71 at 1968. The 

agency also explains that it needs to change the source selection process from lowest price 

 

4 The Court is also not persuaded by ITC’s argument that the USPTO’s decision to take corrective action 

is irrational because AvantGarde is not eligible for award of the HRIS Contract. As discussed above, it is 

not necessary for AvantGarde’s protest to be sustained in order for the USPTO to take corrective action in 

this case. Data Monitor Sys., Inc. v. United States, 74 Fed. Cl. 66, 74 (2006).
18

technically acceptable to tradeoff, because “a Tradeoff Process will result in a contract award 

that best meets the requirements of the [agency’s] program office.”5Id. Because the record 

evidence shows that the USPTO has provided a reasonable and coherent explanation for its 

decision to take corrective action to ensure that the HRIS Contract best meet the agency’s 

procurement needs, the Court will not set aside the agency’s decision.

B. The Scope Of The USPTO’s Corrective Action Is Reasonable 

ITC’s claim that the scope of the USPTO’s corrective action is overly broad, because it 

“bears no rational relation to the purported procurement flaws and must be set aside,” also lacks 

support in the administrative record. Pl. Mot at 19. In its motion for judgement upon the 

administrative record, ITC argues that the Court should enjoin the USPTO from re-issuing the 

Solicitation for the HRIS Contract and accepting new proposals, because the USPTO could use 

data contained in AvantGarde’s current proposal to determine AvantGarde’s proposed price. Id. 

at 18-19. 

But, as the Federal Circuit recently confirmed in Dell Federal Systems, L.P. v. United 

States, “corrective action only requires a rational basis for its implementation.” Dell Fed. Sys., 

906 F.3d at 991. And so, the USPTO’s corrective action plan in this case need not be the only—

or even the best—plan for correcting the perceived prior flaws in the procurement process for the 

HRIS Contract. Rather, the USPTO’s corrective action must simply be rational. 

As discussed above, the record evidence in this case shows that the USPTO’s proposed 

corrective action will clarify the agency’s requirements and make changes to the procurement

process for the HRIS Contract to best meet the agency’s needs. See generally AR Tabs 70-71. 

And so, ITC has simply not shown that the scope of the USPTO’s corrective action is irrational 

or overly broad based upon the circumstances of this case. 

C. ITC Is Not Entitled To Injunctive Relief 

As a final matter, ITC has also not demonstrated that it is entitled to the injunctive relief

that it seeks in this matter because, ITC has not prevailed upon the merits of any of its claims. 

 

5 The administrative record also shows that the USPTO adequately documented the reasons for the 

agency’s corrective action in the agency’s two memoranda for the record, which set forth the reasons for 

the decision to take corrective action and the plan for implementing the corrective action. See generally 

AR Tabs 70-71.
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This Court has held that a plaintiff that has not succeeded upon the merits of its claims cannot 

prevail upon a request for injunctive relief. Argencord Mach. & Equip., Inc. v. United States, 68 

Fed. Cl. 167, 176 (2005). And so, the Court must DENY ITC’s request for injunctive relief.

V. CONCLUSION 

In sum, ITC has not shown that any of its challenges to the USPTO’s decision to take 

corrective action are supported by the administrative record. Rather, the record evidence in this 

case shows that the USPTO reasonably decided to take corrective action after determining that 

there were “fundamental misunderstandings” among offerors about the agency’s requirements 

during the procurement process for the HRIS Contract. The record evidence also shows that the 

scope of the agency’s proposed corrective action is reasonable under the circumstances of this 

case.

And so, for the foregoing reasons, the Court: 

1. DENIES ITC’s motion for judgment upon the administrative record;

2. GRANTS the government’s and AvantGarde’s respective cross-motions for 

judgment upon the administrative record; and 

3. DISMISSES the complaint. 

The Clerk shall enter judgment accordingly. 

Each party shall bear their own costs.

Some of the information contained in this Memorandum Opinion and Order may be 

considered protected information subject to the Protective Order entered in this matter on April 

17, 2018. This Memorandum Opinion and Order shall therefore be filed UNDER SEAL. The 

parties shall review the Memorandum Opinion and Order to determine whether, in their view, 

any information should be redacted in accordance with the terms of the Protective Order prior to 
20

publication. The parties shall FILE a joint status report identifying the information, if any, that 

they contend should be redacted, together with an explanation of the basis for each proposed 

redaction on or before March 15, 2019. 

IT IS SO ORDERED.

s/ Lydia Kay Griggsby 

LYDIA KAY GRIGGSBY

Judge