No. 21-1394C 

(Filed: September 23, 2021)

(Re-Filed: November 10, 2021)

1

* * * * * * * * * * * * * * * * * * * * * 

INTUITIVE RESEARCH AND 

TECHNOLOGY CORPORATION, 

Plaintiffs, 

v.

THE UNITED STATES, 

Defendant

and

BOOZ ALLEN HAMILTON INC., 

Intervenor.

* * * * * * * * * * * * * * * * * * * * * 

Jon D. Levin, Huntsville, AL, for plaintiff, with whom was W. Brad 

English, Emily J. Chancey, J. Dale Gipson, and Nicholas P. Greer.

Geoffrey M. Long, Trial Attorney, United States Department of 

Justice, Civil Division, with whom were Brian M. Boynton, Acting Assistant 

Attorney General, Martin F. Hockey, Jr., Acting Director, and Elizabeth M. 

Hosford, Assistant Director, for defendant. Philip Aubart and Benjamin H. 

Jarrell, United States Army, of counsel.

1 This opinion was originally issued under seal in order to afford the parties 

an opportunity to propose redactions of protected material. The parties did 

not propose any reductions; thus it appears in full.

Bid protest; post-award bid 

protest; price realism; 

unstated evaluation 

criteria; unequal treatment; 

best value determination
2

Gary J. Campbell, Washington, DC, for intervenor, with whom was 

G. Matthew Koehl and Lidiya Kurin, of counsel.

OPINION

This is a bid protest of the Department of the Army’s decision to 

award a task order to Booze Allen Hamilton, Inc. (“intervenor” or “Booze 

Allen”) for technical support services for its Prototype Integration Facility

(“PIF”), a unit that provides integration of new technology into weapons 

systems. The task order was issued on a best value basis pursuant to a 

Department of Defense (“DOD”) blanket purchase agreement (“BPA”). 

Plaintiff complains that the Army applied unstated evaluation criteria and

failed to perform a sufficient price realism analysis. The matter is fully 

briefed on cross-motions for judgment on the administrative record, and oral 

argument was held on September 3, 2021. Because we find no error in the 

agency’s evaluation, we deny the protest for the reasons set out below.

BACKGROUND

The United States Army Contracting Command (“AMCOM”) issued 

the request for quotations (“RFQ”) for the task order at issue on September 

25, 2020, which was then twice amended within a month. The RFQ was 

issued under AMCOM’s existing professional and engineering services 

BPA, known as the EXPRESS BPA. As such, it was subject to the 

requirements of Federal Acquisition Regulation (“FAR”) part 8.405-3. The 

EXPRESS BPA was between AMCOM and holders of certain General 

Services Administration Federal Supply Schedule contractors for support, 

technical, and engineering services. See Administrative Record (“AR”) 5-6 

(Acquisition Strategy EXPRESS Evergreen (Nov. 9, 2016)). This particular 

task order was classified under the North American Industry Classification 

System as non-research and development engineering services. 

The solicited task order was to be a hybrid of a firm-fixed-price and a 

time-and-materials contract. The initial Technical Direction would be 

performed for a fixed price, which coincided with the initial 12-month 

performance period.2 The five option years would be priced based on time 

and materials. In the RFQ, the agency promised to award to the bidder that 

represented the best value to the government as outlined in Attachment 4 to 

2 The initial Technical Direction is a section of the RFQ that contains the 

background, objectives, and work requirements for the first 12-month 

performance period of the task order.
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the solicitation. That document promised that a tradeoff analysis would be 

performed by the agency to balance price against technical ratings to arrive

at the best value. As is normally the case in best value procurements, this 

meant that the agency might not award to the lowest priced offeror. Price 

was the least important factor, but the solicitation warned that its importance 

would increase “as the differences between the evaluation results for the 

other criteria decrease.” AR 1561.

Attachment 4 to the RFQ promised that award would be based on the 

Army’s consideration of three factors: (1) Technical Expertise, (2) Risk 

Mitigation and Management, and (3) Price. Technical Expertise and Risk 

Mitigation were equally important to the agency and were each individually 

more important than Price. About Price, the agency stated that it “is not 

expected to be the controlling criterion in the selection, but its importance 

will increase as the differences between the evaluation results for the other 

criteria decrease.” AR 205.

The RFQ instructed that the first two factors would be rated 

adjectively with possible scores of Outstanding, Good, Acceptable, or 

Unacceptable. An Outstanding rating in Technical Expertise meant that the 

“[q]uotation meets requirements and indicates an exceptional level of 

expertise and an understanding of the requirements. Strengths far outweigh 

any weaknesses. Risk of unsuccessful performance is very low.” AR 206. 

Similarly, an Outstanding rating in Risk Mitigation and Management meant 

that the “[q]uotation meets requirements and indicates an exceptional Risk 

Mitigation and Management approach. Strengths far outweigh any 

weaknesses. Risk of unsuccessful performance is low.” AR 207. Price,

meanwhile, would be evaluated “to assess the level of effort and the mix of 

labor proposed to perform the tasks outlined in the PWS.” AR 208. Price 

would also be evaluated for price reasonableness (“i.e., a price that a prudent 

businessperson would pay for an item or service under competitive market 

conditions, given a reasonable knowledge of the marketplace”) and price 

realism (“ensur[ing] the proposed pricing is realistic for the work to be 

performed, reflects a clear understanding of the requirements, and is 

consistent with the various elements of the other parts of the quotation”). Id.

Plaintiff, Intuitive Research and Technology Corporation 

(“Intuitive”), and intervenor timely submitted quotations on October 30, 

2020. Following their submissions, the government used a five-person

Evaluation Team to examine the quotations. The Evaluation Team rated both 

intervenor and plaintiff as Outstanding in both Technical Expertise and Risk 

Mitigation and Management. Under Technical Expertise, the Evaluation 
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Team found that plaintiff had nine strengths, covering five out of eight 

critical PWS requirements, and intervenor had five strengths, covering four 

of the eight critical requirements. Under Risk Mitigation and Management, 

the Evaluation Team found that plaintiff and intervenor had three strengths 

each.

On March 12, 2021, the contracting officer (“CO”) issued a “Best 

Value and Fair and Reasonable Determination.” AR 1538. In her 

determination, the CO first set forth and then summarized the Evaluation 

Team’s analysis of the quotations. She then examined both the plaintiff’s 

and intervenor’s proposed pricing schemes, finding them to be reasonable 

and realistic. 

The CO then began her discussion of which quotation presented the 

best value to the government. The CO first noted that she agreed with all of 

the Evaluation Team’s analyses. The CO next went through, factor-byfactor, each of the offeror’s quotations, summarizing their strengths. She 

noted, once again, that both plaintiff and intervenor received Outstanding 

ratings in both Technical Expertise and Risk Mitigation and Management. 

The CO recognized that in the Technical Expertise factor intervenor had five 

strengths, “exceeding performance capability requirements in four of the 

eight critical areas of the PWS [Performance Work Statement,” while 

plaintiff had nine strengths, “exceed[ing] specified performance capability 

requirements in five of the eight critical areas of the PWS.” AR 1566. The 

CO also noted, however, that plaintiff’s price was $322,901,764.69 while 

intervenor’s was $291,450,904,76, a difference of 10.8 percent. Ultimately, 

Price was the distinguishing factor for the CO because, “[a]lthough Price is 

not the controlling factor, its importance increases as the differences between 

competing proposals decreases.” Id. “Despite the differences between 

[plaintiff’s] proposed technical solutions versus [intervenor] . . . the variation 

in pricing was significant enough in determining [intervenor] as the best 

value to the government.” Id. Furthermore, intervenor was “more 

advantageous to the Government because it was more collaborative, 

distinctive and efficient solution.” Id.

Following the award of the task order to intervenor, plaintiff filed an 

unsuccessful agency-level bid protest with the Army on March 31, 2021.

Following the CO’s denial of the protest on May 5, 2021, plaintiff filed the 

present bid protest on May 25, 2021. The government filed the administrative 

record, and the parties submitted the case on cross-motions for judgment. 

Oral argument was held September 3, 2021. We denied plaintiff’s motion 
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and granted defendant’s and intervenor’s motions by short order on 

September 7, 2021. Judgment was deferred pending this opinion.

DISCUSSION

We review bid protests using the standards set forth in the 

Administrative Procedures Act. Banknote Corp. of Am., Inc. v. United States, 

365 F.3d 1345,1350–51 (Fed. Cir. 2004). Unless the agency’s decision was 

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law,” it will remain undisturbed. 5 U.S.C. § 706(2)(A) (2018). Put 

differently, if the agency’s decision was reasonable and not in violation of 

any law or regulation, it will be upheld. This standard is “highly deferential.” 

Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. 

Cir. 2000). Furthermore, any agency’s error must have prejudiced the 

protestor before relief can be considered. Office Design Grp. v. United 

States, 951 F.3d 1366, 1373 (Fed. Cir. 2020) (citing Glenn Def. Marine 

(ASIA), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir. 2013)). “To 

establish prejudicial error, a protestor must show that but for that error, the 

protestor had a substantial chance of receiving a contract award.” Id. at 

1373–74 (citing Alfa Laval Separation, Inc. v. United States 175 F.3d 1365, 

1367 (Fed. Cir. 1999)).

Plaintiff presents multiple bases for its protest. First, plaintiff argues 

that the agency improperly conducted its price realism analysis. Next, 

plaintiff claims that the agency applied unstated evaluation criteria when 

evaluating its quotation. Plaintiff then argues that the agency evaluated the 

quotations unequally. Finally, plaintiff claims that the agency unreasonably 

failed to assign strengths to its quotation.3 Plaintiff claims that the above 

errors prejudiced it, warranting a permanent injunction against performance 

of this task order. For the reasons below, we find plaintiff’s arguments 

unavailing.

I. The Agency Reasonably Conducted Its Price Realism Analysis

First, plaintiff argues that the CO’s determination showed that the 

agency did not perform a price realism analysis. Plaintiff claims that the only 

relevant language in the CO’s determination was a “high level comment” 

that:

3 Plaintiff also argues that the agency’s tradeoff analysis was arbitrary and 

irrational, but this assertion largely comprises arguments made and addressed 

in connection with other arguments.
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The technical evaluation team considered three Offerors’ Basis 

of Estimate to reflect a clear understanding of the requirement 

and to be consistent with the other parts of the quotations. Upon 

review of the price quotations and the IGE basis (historical 

rates and escalation), it is determined that three proposals are 

realistic for the work to be performed.

AR 1560. Plaintiff asserts that this lone comment shows that the agency did 

not perform a price analysis, and if it had, it would have rejected the 

intervenor’s proposal due to performance risks. 

To the extent that an analysis was done, plaintiff argues that it was

flawed because intervenor’s Technical Direction price was unrealistically 

low and proposed labor mix was insufficient. Plaintiff claims that the 

Technical Direction, fixed-price section of the RFQ required a contractor to 

perform a wide variety of tasks for Configuration Management and Quality 

Management services. Under Configuration Management, a contractor 

would provide “expertise for the centralized planning, direction, and control 

of configuration management and data management of PIF quality data,

documentation, databases, and logs.” AR 181. Under Quality Management, 

a contractor would perform a variety of services, including managing 

multiple logs, being responsible for customer feedback, and managing PIF 

metrics and data. Plaintiff then linked those requirements under the 

Technical Direction section to a broader set of requirements under the same 

headings in the PWS.

Plaintiff takes issue with intervenor’s proposed division of work 

requirements. For the 12,240 firm-fixed-price Technical Direction hours 

required by the agency, intervenor proposed that an Administrative Specialist 

and Lead Engineer perform the work with a 75 percent and 25 percent labor 

hour split at a total price of $970,292.67. Plaintiff argues that an 

Administrative Specialist “is not capable of performing [the Technical 

Direction] tasks or not likely to perform those tasks at the low price paid for 

the position.” Pl.’s Mot. at 17. An Administrative Specialist, according to 

plaintiff, is essentially a support role, such as a secretary or a clerk, that only 

requires a high school degree or equivalent. Plaintiff claims that, based on 

the contractor’s duties under Configuration Management and Quality 

Management, an Administrative Specialist would not be able to meet 

Technical Direction’s requirements. Plaintiff also argues that the 

intervenor’s Lead Engineer would not be able to fulfill the Technical 

Direction’s requirements either. Plaintiff claims that the division of labor 
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hours between the Administrative Specialist and Lead Engineer at 

intervenor’s given price meant that it was not realistic that intervenor could 

have performed under the task order and that intervenor did not have a clear 

understanding of the work. Therefore, the agency improperly conducted the 

price realism analysis, and intervenor should have been eliminated from the 

competition, says plaintiff.

Defendant presents multiple rebuttals to plaintiff’s assertions. First, 

defendant alleges that plaintiff would not be able to show prejudice from a 

faulty price realism analysis. According to defendant, the firm-fixed-price 

Technical Direction aspect of the task order only “comprise[d] 12,240 hours 

of effort, out of the 3,595,032 total hours of effort proposed by [intervenor].” 

Def.’s Mot. at 23. The difference in price in the firm-fixed-price element 

between the two offerors is $515,904.50, as plaintiff’s proposal was 

$1,672,298.50 and intervenor’s was $1,156,394. Defendant claims that this

difference is far too small to constitute prejudice as it is only 1.6 percent of 

the difference between the two proposals and 0.2 percent of intervenor’s total 

proposed price. Defendant argues that the 10.8 percent differences in prices 

would be reduced to 10.6 percent (if intervenor’s proposal were 

hypothetically priced up to match plaintiff’s price), which would not have 

affected the CO’s decision and could not have constituted prejudice. 

Defendant also argues that the price realism analysis was performed 

correctly, and that intervenor’s price was realistic. Defendant contends that 

plaintiff misunderstood intervenor’s proposal regarding the initial Technical 

Direction. According to defendant, the initial Technical Direction (the first 

year of performance under the task order) was to “provide quality 

management support for aviation and missile activities.” AR 180. “The 

objective was to manage a corrective action log and provide weekly 

communication to ensure appropriate responses and follow-up activities are 

performed,” and other objectives were to “manage the PIF’s Process 

Deviation Log, organize PIF Customer feedback, and manage quality data 

using Sharepoint.” Def.’s Mot. at 24. Defendant argues that the initial 

Technical Direction did not encompass all the requirements from the PWS, 

contrary to plaintiff’s understanding. 

As it pertains to the merits, we agree with defendant.4 The initial 

Technical Direction subsections of the RFQ containing the requirements for 

Quality and Configuration Management are far narrower than the respective 

4 Because we are deciding this issue on the merits, we need not decide the 

issue of prejudice.
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sections in the PWS. For example, as defendant notes, plaintiff claimed that 

a part of Configuration Management under the PWS “mandated that the 

contractor designate a single technical authority with program responsibility 

to manage all configuration management (including acquisition) and work 

directly with the Agency’s senior configuration manager.” AR 166. The 

initial Technical Direction contains no such requirement. Instead, as 

described in the initial Technical Direction, the firm-fixed-price section 

largely consists of simpler tasks, such as managing various logs, organizing 

information, and ensuring weekly communications. See AR 181. Intervenor 

included in its proposal an explanation detailing how an Administrative 

Specialist and Lead Engineer on a 75-25 percent effort split would perform 

the initial Technical Direction. The agency reasonably believed, based on 

that proposal, that intervenor understood the work and would realistically be 

able to perform with that personnel at its given price. Because that 

determination was reasonable, we will not interfere with the agency’s 

decision.

II. The CO Reasonably Concluded That Intervenor’s Proposal 

Represented the Best Value to the Government

Plaintiff next argues that the CO applied unstated evaluation criteria 

when making her best value determination. Plaintiff alleges that the CO 

awarded the task order to intervenor because she found intervenor’s proposal 

to be “more advantageous to the Government because it was more 

collaborative, distinctive, and efficient,” factors not found in the RFQ. AR 

1566. Plaintiff further alleges that the government doubled down on this 

finding, stating in the debrief notice that the intervenor’s proposal was “more 

efficient, transparent, and collaborative.” AR 1670. Plaintiff argues that 

none of those “loosey-goosey, business-lite terms” appear in any PWS 

section and the evaluation board made no findings based on those terms. 

Pl.’s Mot. at 9. Instead, the “Source Selection Authority injected these cutfrom-whole-cloth differentiators without mentioning where they came 

from.” Id.

Defendant responds that plaintiff myopically focuses on a single 

sentence while ignoring the context of the statement and the CO’s overall 

analysis. The CO followed the best-value tradeoff approach outlined in the 

RFQ. Defendant claims that the CO was presented with two Outstanding 

proposals, and according to the RFQ, while Price was the least important 

factor, “its importance will increase as the differences between the evaluation 

results for the other criteria decrease.” AR 1561. Therefore, although 

Plaintiff had more strengths and in more critical areas of the PWS than 
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intervenor, “the variation in pricing was significant enough in determining 

[intervenor] as the best value to the government.” AR 1566. Defendant 

argues that the agency’s methodology and analysis is clear, and the focus on 

this single sentence in the CO’s determination is unwarranted. Defendant 

claims that the sentence can “simply be disregarded, as there is no evidence 

that its inclusion had any impact on the best-value tradeoff analysis.” Def.’s 

Mot. at 22.

In substance, we agree with defendant. While we cannot ignore the 

CO’s comment, defendant is correct that it appears to be surplusage, which 

had no impact on her analysis and no role in her decision. It is clear that the 

CO’s decision came down to Price. It is evident throughout the CO’s best 

value determination that she was aware of the offerors’ proposals and their 

relative strengths. She recounted in great detail the Evaluation Team’s 

findings and noted the strengths of each offeror’s proposal, along with how 

both plaintiff and intervenor were rated as Outstanding in both Technical 

Expertise and Risk Mitigation and Management. The CO agreed with the 

Evaluation Team’s findings, and during her best value discussion, she again 

went through, factor-by-factor, each offerors’ proposal discussing their 

strengths and finding each one Outstanding. 

Throughout the CO’s discussion, she repeatedly referenced the 

evaluation scheme from the RFQ, stating, “Price is not expected to be the 

controlling criterion in the selection, but its importance will increase as the 

differences between the evaluation results for the other criteria decrease.” 

AR 1561. Although the CO found that, under the Technical Expertise factor 

plaintiff had nine strengths covering five of eight critical areas under the 

PWS while intervenor only had five strengths covering four of the eight 

critical areas, she decided that “[d]espite the differences between [plaintiff]’s 

proposed technical solutions versus [intervenor]... the variation in pricing 

was significant enough in determining [intervenor] as the best value to the 

government.” AR 1566. The CO found that she had two Outstanding, 

comparable proposals that both indicated each offeror would succeed in the 

given task order. Intervenor’s proposal, however, cost $31,450,859.93 less 

than plaintiff’s proposal, a difference of 10.8 percent. While the CO did use 

“loosey-goosey” language that had no source in the RFQ and therefore no 

place in her best value determination, we cannot conclude that it had any 

impact on her decision. As the CO repeatedly stated, price was the 

differentiating factor here.

III. The Agency Did Not Engage in Unequal Evaluations
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Plaintiff’s next argument is that the agency did not evaluate the 

offerors’ proposals equally. The crux of plaintiff’s argument is that plaintiff 

and intervenor both proposed to use the same computer programs, Windchill 

and other commercial-off-the-shelf (“COTS”) tools, for the Configuration 

Management section of the PWS, but only intervenor received a strength for 

them in its proposal. Plaintiff claims that the failure of the agency to assign 

it a strength for that aspect of its proposal is arbitrary and irrational. 

Defendant responds that, while both plaintiff and intervenor did propose 

using the same programs for Configuration Management, the anticipated

uses set out in the two proposals were not “substantively indistinguishable or 

nearly identical.” Def.’s Mot. at 27. Intervenor proposed to use Windchill 

and the other COTS tools in different ways from plaintiff, meriting the 

strength it received. 

We agree with defendant. “The Federal Acquisition Regulation 

requires an agency to treat offerors fairly and impartially.” Office Design 

Grp., 951 F.3d at 1372 (citing 48 C.F.R. § 1.602-2(b)). For a protestor to 

succeed on a disparate evaluation claim, the “protestor must show that the 

agency unreasonably downgraded its proposal for deficiencies that were 

‘substantively indistinguishable’ or nearly identical from those contained in 

other proposals.” Id. The proposed use of Windchill and other COTS tools 

was not substantively indistinguishable between the two proposals. As

defendant noted, intervenor proposed to use Windchill for the analysis of 

equipment failure data, while plaintiff’s proposal contained no such use. The 

proposals, therefore, are not substantively indistinguishable. Because the 

agency had a rational basis for distinguishing between the proposals, we will 

not disturb its decision.

IV. The Agency Did Not Unreasonably Fail to Assign Strengths to 

Plaintiff’s Proposal

Lastly, plaintiff argues that it should have been assigned four other 

strengths for its proposal. For example, plaintiff claims that it should have 

been assigned a strength under the PWS’s Quality Management requirement 

that the “contractor... flow all applicable Quality Management System 

requirements to all team members and subcontractors” because it had 

exceeded the requirements. AR 167. Defendant responds that plaintiff has 

not shown how the agency’s assignment of strengths was irrational or 

violated the terms of the solicitation. 

As stated before, if an agency’s action was reasonable, we cannot 

interfere. This reluctance to second guess is particularly appropriate when 
11

an agency is assigning strengths to proposals. Plaintiff has not shown how 

the agency’s assignment of strengths to proposals was irrational; it merely 

reflects disagreement with the assignment. We will not disturb the agency’s 

decision.

CONCLUSION

Plaintiff argues that the agency erred in multiple ways during the 

agency’s evaluation of the proposals and best value determination, however, 

it has not shown irrationality or legal error by the agency. Accordingly, 

plaintiff’s motion for judgment on the administrative record (ECF No. 21) is 

denied. Defendant’s and intervenor’s motions for judgment on the 

administrative record (ECF Nos. 23, 24) are granted. The Clerk of the Court 

is directed to enter judgment for defendant.

s/Eric G. Bruggink 

ERIC G. BRUGGINK

Senior Judge