# In the United States Court of Federal Claims

No. 19

- 1421C

Filed: April 3

, 2020
Redacted Version Issued for Publication : April 2 6 , 2020 1

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- Award; Bid Protest; Small

Business Administr ation ; Exhaustion ; Technical Evaluation;

Best Value Trade

- Off

. HARMONIA HOLDINGS GROUP,
LLC

,

Protestor

,

v.

UNITED STATES,

Defendant

,

v

. ALETHIX, LLC,

Defendant

- Interven or.

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W. Brad English, Maynard Cooper & Gale , Huntsville, AL , for protestor. With him

was Emily J. Chancey and Michael W. Rich , Maynard Cooper & Gale, Huntsville, AL

.

Bryan M. Byrd , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him was Zachary
J. Sullivan , Trial Attorney, Commercial Litigation Branch Patricia M. McCarthy

, Assistant Director, C ommercial Litigati on Branch, Robert E. Kirschman, Jr. , Director, Commercial Litigation Branch, and Joseph H. Hunt , Assistant Attorney General , Civil

Division . Of counsel was Wilmary Bernal and James Latoff , Attorney, United States Department Commerce, and Karen L. Hunter, A ttorney, Small Business Administration.

Jonathan M. Baker, Crowell & Moring LLP

, Washington, DC, for intervenor . With

him were Eric M. Ransom and Zachary H. Schroeder

, Crowell & Moring LLP

, Washington, DC

.

1 This Opinion was issued under seal on April 3, 2020 . The parties were asked to propose

redactions prior to public release of the Opinion. This Opinion is issued with some of the redactions that the parties proposed in response to the court’s request. Word s which are redacted are reflected with the notation: “[redacted].”2 O P I N I O N

HORN, J.

Protestor

, Harmonia H oldings Group, LLC (Harmonia)

, filed a post

- award bid protest in the United States Court of Federal Claims challenging the decision of the United
States Department of Commerce, Economics and Statistics Administration , United States Census Bureau, Applicati ons Development and Services Division (the Agency) to award

a task order to Alethix, LLC (Alethix)

, the intervenor.

FINDINGS OF FACT

On June 3, 2019, the Agency issued a Request for Quotations (RFQ) YA 1323

- 19

- KA

- 0001

. 2 By way of background, the RFQ in dicated :

T he U. S. Census Bureau is the primary source of basic statistics about the population and economy of the Nation. These statistics assist the Congress, the executive branch of the Federal Government, state and local governments, the public, and t he private sector in the development and
evaluation of social and economic activities. The USCB’s [United States
Census Bureau ’s ] major programs are the periodic censuses, Current Surveys, and a wide range of reimbursable work for other agencies.

The RFQ explained that “[t]o fulfill the critical and continually expanding mission to meet the data requirements of users and to reduce growth in operating costs, the USCB has become increasingly reliant upon Information Technology (IT),” and the IT “resources

en able staff to develop, process, and mainta in enormous collections of basic data about the people and economy of the Nation. The importance of maintaining a state of the art capability to accomplish the mission of the USCB is imperative.” The RFQ continued:

“ The Applications Development and Services Division (ADSD) of the USCB has primary responsibility for establishing and maintaining the USCB’s capability to conduct field survey and data collection operations for multiple programs, including the decennial census, economic surveys, American Community Survey (ACS), and current surveys programs.” The RFQ noted “[a]s the USCB’s principle provider of system solutions for automating mission

- critical survey/data field data collection and related activities, the
ADSD [ Applications Development and Services Division ] is responsible for investment in the portfolio of systems and applications that support survey and data collection operations.”

The RFQ stated that the Applications Development and Services Divisi on

“ specializes in the design, deve lopment, implementation, and support of data warehousing systems used to gather and report on paradata and response data coming from the data capture case management and cost systems ,” and that “[t] he Unified

2 On June 12, 2019, the Agency subsequently issued Amendment #A001 to the RFQ. The court refers to the language of the Amendment #A001 in describing the requirements
of the RFQ.3

Tracking Sys tem Development Branch (UTSDB) is responsible for the business analysis, IT systems design, development, and support for the Enterprise Reporting System. ” The
RFQ continued: “ The Enterprise Reporting System serves as a data warehouse system that provides a view of survey data ov er time, across surveys, and from different data capture and cost sources at one time; all of the data is in one place to view, analyze, and
make more efficient and effective decisions.” Regarding the Enterprise Reporting System,

the RFQ explained :

T he E nterprise Reporting System has two major components: currents surveys and economic surveys. The Enterprise Reporting System for current surveys is the cost, progress, and quality data warehouse/reporting system for all surveys and th eir field data collecti on operations. The Enterprise Reporting System for economic surveys tracks the daily check

in data against progress goals and serves as the internet paradata repository.

The RFQ explained

[t] he purpose of this task order is to pr ocure contractor services to provide SAS programming and database programming support for the Enterprise Reporting System project inside of ADSD. The Enterprise Reporting System supports Demographic and Economic surveys with cost, progress & quality report s as p art of our broader mission to enable Adaptive Design and providing Business Intelligence Tools. This work will support services to aid in the design, build and maintenance of the Enterprise Reporting System. Contractor support services will include s ystem development support, high

- level and detailed system/application design support. System development support will include, but is not limited to, the following: authoring software to ingest data, aggregate data, generate reports, create

emails and othe r acti vities on a daily basis.

The RFQ made clear “[t]his is a notice that this order is a total set aside for women

ow n ed small businesses. Only quotes submitted by women

- owned small businesses will be accepted by the Government. Any quote that is submit ted by a contractor that is not a

women

- owned small business will not be considered for award.” 3 The Formal Acquisition

Plan for Enterprise Reporting System Support Solicitation #YA1323

- 19

- KD

- 0001 explained, by way of background:

Enterprise Reporting Syst em Support, Decennial Reporting System Support, and Decennial Census Data Lake (CDL) support is currently being

3 The award decision memo reflects that after market research, the Agency identified four

woman

- owned small b usinesses the Agency believed were capable of performing the task order: Protestor Harmonia, [redacted] and [redacted] . Subsequently, [redacted]

con tacted the contract specialist that it was no “ longer be eligible to participate in the competition of this acquisition. ” In addition, on June 6, 2019, i ntervenor Alethix express interest in “parti ci pating in this procurement,” and the Agency sent the RFQ to Alethix.4

provided by Accenture Federal Services under one task order

- #YA1323

- 14

- NC

- 0112. The original task order was set

- aside for small businesses on
the NIH CIO

- SP3 Small Business Government

- Wide Acquisition Contract (GWAC). Agilex Technologies was awarded the original task order. During contract performance, Agilex Technologies was acquired by Accenture
Federal Services. The task order w as officially novated through a formal modification on October 12, 2016. The current period of performance is due to expire September 30, 2019.

In the RFQ, t he Agency stated that it “intends to issue a Time and Materials task

order under the General Service Administra tion ’ s (GSA) IT Schedule 70 awarded to a

small business for a 12

- month base period and six (6) additional twelve (12) month option periods.” Regarding the period of performance, the RFQ indicated:

The seven (7) year life cycle i ncludes a one

- year base pe riod plus six (6)

one

- year option periods as follows:

Base Period: July 1, 2019

– June 30, 2020 Option Period 1: July 1, 2020

– June 30, 2021 Option Period 2: July 1, 2021

– June 30, 2022 Option Period 3: July 1, 2022

– June 30, 2023 Option Period 4: July 1, 2023

– June 30, 2024 Option Period 5: July 1, 2024

– June 30, 2025 Option Period 6: July 1, 2025

– June 30, 2026

The RFQ noted that

, pursuant to FAR 52.217

- 8, 4 the period of performance, could be

extended from July 1, 2026 to December 31, 2026.

For the evaluation of the offerors’ proposals, the RFQ indicated that:

The proposals will be evaluated against the Government’s following five (5)

factors :

4 FAR 52.217

- 8 , “ Option To Extend Services,” states:

The Government may require continued per formance of any services within the limits and at the rates specified in the contract. These rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary of Labor. The option provision may be exercised more than

o nce, but the total extension of performance hereunder shall not exceed 6 months. The Contracting Officer may exercise the option by wri tten notice to the Contractor within ___ [insert the period of time within which the Contracting Officer may exercise the option].

48 C.F.R § 52.217

- 8 (2019). The RFQ provided the contracting officer three days within

the contract end date to exercise the option.5

Factor 1

– Technical

Factor 2

– Key Personnel

Factor 3

– Management

Factor 4

– Similar Exp erience and Past Performance

Factor 5

– Price

(emphasis in original). The RFQ explained that the “[f]actors one through four are referred to as the Technical Factors. Factor five is a Price Factor that will be evaluated separately and applied in the deter mination of best value. The rated technical evaluation criteria are sig nificantly more important than price.”

Regarding the first factor, Technical, the RFQ indicated that an offeror’s technical approach would be evaluated to determine the extent to whi ch it meets the requirements in performance work statement. Additionally, the RFQ stated “[t]he Government’s evaluation of the Offeror’s technical approach will also include an assessment of the Contractor’s capability and inn ovation of the approach, metho ds, and procedures for completing the tasks,” and “[a]ll information will be evaluated to determine the degree it demonstrates the likelihood that the Offeror will successfully complete the requirements.” For the Key Personnel factor, the RFQ stated that: “ Key Personnel will be evaluated on the qualifications, experience, knowledge and adequacy of the proposed key personnel deemed necessary to satisfy the solicitation's requirements. The Government will evaluate the background, professional credentials, and relevant experience of key personnel in performing the required tasks.” The RFQ also noted :

Th e information presented in the Offeror’s proposal together with information from any other sources available to the Government will provide the primary input f or evaluation of this factor. The Government’s evaluation of the Offeror’s proposal will consider the strengths, weaknesses and risks associated with each of the key personnel as well as the entire team of key

per sonnel

.

For the Management factor, the of feror’s proposal was to be “ evaluated to

determine the extent to which the Offeror has developed an effective and efficient Contract Management Plan,” and to “ successfully manage and fulfill the requirements of
the Performance Work Statement. The Governmen t’s evaluation of Factor 3: Management will consider the strength s, weaknesses and risks of the Offeror’s management approach.” For the Similar Experience and Past Performance factor, the RFQ provided that “[e]valuation of past performance will allow the G overnment to determine whether the Offeror consistently delivered quality services in a timely manner. Past performance will be evaluated for contracts performed by the Offeror during the last three (3) years consistent with the size, scope and complexity of this solicitation. ”

For the Price factor, the RFQ noted

, “[t]he price evaluation will be based on price reasonableness, total evaluated price, and a comparison with independent government cost estimate, if available,” and “[t]he price evaluation will include price completeness and accuracy, price reasonableness, and total evaluated price. ” In addition, “ [r]easonableness6

determinations will be made by determining if competition exists, by comparing bid labor rate price with established General Services Administration price schedules, and by comparing total bid pri ces wit h the Independent Government Cost Estimate (IGCE).”

The RFQ explained that award would be made after a best value determination, noting that:

The USCB’s evaluation will be based on bes t value principles. Accordingly,

an award will be made to the responsible and technically acceptable Offeror whose proposal provides the greatest overall value to the Government, price and other factors considered. This best value determination will be

acc omplished by comparing the value of the differences in the tec hnical factors for competing offers, based on their strengths, weaknesses, and risks, with differences in their price to the Government. In making this comparison, the Government is more concern ed with obtaining superior technical and management capabiliti es than with making an award at the lowest overall cost to the Government. However, the Government will not

make an award at a higher overall price to the Government to achieve slightly superior technical skills.

Three offerors submitted timely proposals: protestor Harmonia, intervenor Alethix,

and [redacted] . On September 3, 2019, the Technical Evaluation Team issued the Final Conesus Technical Report. The Final Conesus Technical Report explai ned

[f] rom June 24, 2019 through July 1, 2019, the individual TET [Technical Evaluation Team] members reviewed the offerors’ proposals independently. An evaluation template was provided to the TET as a guideline and they were instructed to keep all notes . The individual TET members evaluated the written technical proposals in accordance with Section M

– Evaluation

Factors for Award of the solicitation. The TET members reviewed and documented their independent assessments of the vendors’ responses for

each factor. Each TET mem ber independently evaluated the strengths, weaknesses and risks of each of the offerors’ proposals.

The TET then came together throughout the period of July 2, 2019 through July 9, 2019 for multiple consensus meetings.

. . . The team recorded the group’s consensus findings for strengths, weaknesses and risks for the offerors’ proposals for each factor. The consensus findings documented in this report served as the input to the Trade

- Offs/Best Value

Recommendation conducted with the Pri ce Evaluation Team.

T he Final Conesus Technical Report continued: “After thoroughly reviewing the technical proposals for each offeror and evaluating them against the criteria in Section M of the solicitation, the TET reached a consensus on the technical ranking. ” The Technical Evaluation Team ranked the offerors in the following order:7

1. Alethix

2. Harmonia

3. [redacted]

For Factor 1, the Technical factor, Alethix’s technical proposal received 9 strengths, 1 weakness and 2 risks. For Factor 2, the Key Personnel factor, Alethix’s technical proposal received 2 strengths, 0 weakness and 0 risks. For t he Management factor , Factor 3, Alethix’s technical proposal received 11 strengths, 0 weakness and 2 risks, and for the Similar Experience and Past Performance factor

, Factor 4, Alethix received 1 strength, 0

weakness and 0 risks. The Technical Evaluation Team ’s narrative summary noted that

The TET ranked Alethix #1 for their technical proposal. The Offeror provided a thorough technical proposal that demonstrated signif icant strengths presenting numerous benefits to the Government. Alethix’s technical proposal had no notable or significant weaknesses or risks. The offeror’s technical approach demonstrated Alethix’s capability t o successfully perform th e requirements as w ell as provide innovative approaches, methods, and procedures for completing the tasks. Alethix’s experience with the work and systems being used by Enterprise Reporting directly correlate to the work required in Section C and increase t he likelihood of

su ccessfully meeting the requirements. In addition, Alethix proposed [redacted] and utilizing [redacted]

.

The narrative summary for Factor 1 stated “the offeror proposed utilizing cutting edge, next generation technologies [redacted] which could im prove quality, and increase efficiencies/team performance.” The narrative summary also noted :

T he offeror proposes a strong subcontracting partnership [redacted] . This greatly minimizes the impact of transition and maintains knowledge of Enterprise Reporti ng System. Although risks/weaknesses were identified,

there were no weaknesses or risks found for Factor 1 that influenced the evaluation team’s ranking which would create a work stoppage in the development or a mismanagement in Census operations.

The Awar d Decision Memorand um summarized the Technical Evaluation Team’s analysis o f Alethix’s technical proposal:

The TET ranked Alethix’s technical proposal the highest, #1. The Offeror provided a thorough technical proposal that demonstrated significant strengths presenting numer ous benefits to the Government. Alethix’s technical proposal had no notable or significa nt weakness or risks. The offeror’s technical approach demonstrated Alethix’s capability to successfully perform the requirements as well as provide innovative approach es, methods, and procedures for completing the tasks. Alethix’s experience with the work and systems being used by Enterprise Reporting directly correlate to the work required in Section C and increase the8

likelihood of successfully meeting the requirement s. In addition, Alethix proposed [redacted]

.

As noted above, the Technical Evaluation Team ranked Harmonia second, and determined that for the Technical factor, Factor 1, Harmonia’s technical proposal received 9 strengths, 0 weakness and 2 risks, and fo r Factor 2, the Key Personnel factor,

Harmoni a ’s technical proposal received 1 strength, 0 weakness and 0 risks. For t he Management factor , Factor 3, Harmonia’s technical proposal received 4 strengths, 0 weakness and 2 risks, and for the Similar Experience and Past Performance factor, Factor 4, Harmonia received 2 strength, 0 weakness and 0 risks.

The Technical Evaluation Team’s narrative summary for Harmonia noted : “T he TET ranked Harmonia #2 for their technical proposal. The offeror ha d a strong technic al approach with a few innovative ideas utilizing new technologies and received outstanding ratings for two of the past performances provided. ” The narrative summary for Factor 1

stated :

For Factor 1, the offeror proposed utilizing cutti ng edge, next gene ration technologies such as introducing a [redacted] into the ERS [Enterprise Reporting System] architecture and utilizing [redacted] . These technologies could improve system performance and create efficiencies while improving team performance. The offeror also proposed utilizing [redacted] , which would give USCB greater visibility into the resource utilization of the entire

team. The o fferor proposed training the [redacted] . This would lead to standardized processes for gathering requirements and improving quality. Although weaknesses/risks were identified, they were considered easily mitigated and would not create a work stoppage in de velopment or a mismanagement of Census Operations.

T he T echnical Evaluation Team identified nine strengthens for Factor 1 for Harmonia , as follows:

Strengths:

1. Technical approach

– RFP C.3.1/Proposal Page 2

- 1, Section 2.1.
The offeror’s proposal demonstrates vast experience in implementing agile methodologies. This is significant because this would benefit the
Government in improving development and project management

processes.

2. Technical approach

– RFP C.3.6.2.7/Proposal Page 2

- 1, Se ction

2.A3. The offeror’s proposal shows they are ISO 9001:2015 and CMMI Level 3 certified. This is significant because it would ensure q uality output in all aspects of contract performance.9

3. Technical approach

– RFP C.3.6.2.7/Proposal Page 2

- 1, Section

2.A4. The offeror proposes a Quality and Processes team to audit each project quarterly to ensure compliance with the ISO and CMMI requi rements. This is significant because it would result in better quality assurance for the government.

4. Technical appr oach

– RFP C.3.1/Proposal Page 2

- 3, Section 2.1. The offeror proposes implementation of [redacted] , which introduces a cohesive approach to managing both development and operations and maintenance support activities across the team. This is significant bec ause this would provide a level of transparency and accountability that would allow the Government to more effectively manage resources a cross the team. This creates transparency in the development process, improving ADSD’s [Applications Development and Se rvices Division ’s ] relationship with

customers.

5. Technical approach

– RFP C.3.1/Proposal Page 2

- 6, Section 2.2.1. The offeror proposed the use of code templates. This is significant because this would benefit the Government by creating more efficient de velopment and troubleshooting processes.

6. Technical approach

– RFP C.3.1/Proposal Page 2

- 6, Section 2.2.1. The offeror proposes cross

- training of development staff. This is significant because this would eliminate single points of failure/dependencies o n individuals and make the overall team (Government and Contractor) more efficient in responding to inquiries and issues.

7. Technical a pproach

– RFP C.3.1/Proposal Page 2

- 7, Section 2.2.1. The offeror proposes the introduction of a [redacted] into the En terprise Reporting System architecture. This is significant because this would introduce a new technology stack capable of handling large volumes of data and introduce new capabilities such as:

• Dealing with structured, semi

- structured, and unstructured dat a

• Performing advanced analytics

• Data discovery

• Integration of machine learning logic

• Providing increased access for data users across the agency

8. Technical approach

– RFP C.3.1/Proposal Page 2

- 8, Section 2.2.1. The offeror proposes the introduction of [redacted] . This is significant because this would create efficiencies in the development cycle that will save time and, potentially, mone y allowing developers to be more efficient.

9. Technical approach

– RFP C.3.2/Proposal Page 2

- 9, Section 2.2.2. The offeror proposes training all business analysts in the [redacted] . This is10

significant because this would create consistent requirements ga thering, improving software quality.

(emphasis in original).

The Techn ical Evaluation Team indicated there were no weaknesses for Factor 1 for Harmonia’s proposal , and w ith regards to the risks for Factor 1 , the Technical Evaluation

Team stated:

Risks :

1. Technical approach

– RFP C.3.1/Proposal Page 2

- 6, Section 2.2.1. The

offeror proposes cross

- training of development staff and peer testing of other developer’s code. Cross

- training of staff or peer testing could cause delays in delivery of software. This is considered a low risk since ADSD [Applications Development and Serv ices Division] monitors contractor performance and tasking to maintain cost controls.

2. Technical approach

– RFP C.3.1/Proposal Page 2

- 8, Section 2.2.1. The

offeror proposes the introduc tion of [redacted] . However, as of now, it is

unclear if [redacted] is compatible with existing USCB [United States Census Bureau] systems, it could create significant integration issues leading to an increase of costs, lost development time, and schedule delays.

This is considered a moderate risk since this could introduce a level of complexity to our environment making issues harder to troubleshoot and

software tools harder to integrate.

(emphasis in original).

The Award Decision Memorandum summarized the Technical Evaluation Team’s analysis of Harmonia’s technical proposal: “ The offeror had a strong technical approach with a few innovative ideas utilizing new technologies and received outstanding ratings

for two of the past performances provided

. ” 5

5 The Award Decision Memorandum also summarized Technical Evaluation Team’s analysis o f [redacted] technical p roposal , noting, “[t] he offeror presented a technical approach which provides experience with [redacted] and received outstanding ratings for two of the past perfo r mances provided .” As noted above, the Technical Evaluation Team

ranked [redacted] third, and determined that for the Technical factor, Factor 1, [redacted] technical proposal received 5 strengths, 1 weakness and 2 risks, and for Factor 2, the Key Personnel factor, [redacted] technical proposal received 1 strength, 0 weakness and

0 risks. For t he Management factor , Fa ctor 3, [redacted] technical proposal received 6 strengths, 0 weakness and 1 risk, and for the Similar Experience and Past Performance

factor , Factor 4, [redacted] received 2 strength s, 1 weakness

, and 0 risks. The Technical

Evaluation Team’s narrative sum mary for [redacted] stated: “ The TET ranked [redacted] #3 for their technical proposal. The offeror presented a technical approach which provides11

The Agency also conducted a Price Evaluation and the Price Evaluation Team

indicated:

The price evaluation team concluded the following price ranking (1 being the lowest in price, 3 being the highest in price).

RANKING TOTAL PRICE FOR TASK ORDER

Offero r Name Ranking (Low to High) Price

[redacted] 1 $ [redacted] Harmonia Holdings 2 $37,168,903.23

Alethix 3 $38,216,255.80

The Price Evaluation also provided :

Price Completeness and Accuracy

- All Offerors were determined to have submitted complete and accurate price proposals in accordance with Section L of the solicitation. A price proposal submitted in accordance with the instructions specified in Section L of the solicitation demonstrated that each Offeror understood the price proposal instructions and properly completed the rate schedules, or price proposal worksheets, as found in

solicitation Attachment J.4 Price Proposal Worksheet. All proposals applied arithmetic formulas correctly and were appropriately formatted. All Offerors completed the Atta ched J.4 price proposal worksheet, used the governments estimated amount of hours for each contract role and mapped

all contract role to the each Offero rs GSA IT 70 Schedule labor categories. All proposals were found to be complete and accurate.

(emphasis in original). The Price Evaluation Team also conducted a price reasonableness analysis, and stated that :

Price Reasonableness

- Reasonableness determinations were made by determining if competition exists, by comparing bid labor rate price with

establis hed General Services Administration price schedules, and by comparing total bid prices with the Independent Government Cost Estimat e (IGCE). The Price team had the following findings regarding price

reasonableness :

• Per FAR Part 8.405

- 1(d)(3)(ii), for prop osed orders exceeding the simplified acquisitio n threshold, the ordering activity contracting officer shall provide the solicitation to as many schedule contractors as practicable, consistent with market

experience with [redacted] and received outstanding ratings for two of the past performan ces provided. ”12 research appropriate to the circumstances, to reason ably ensure that quotes will be received from at least three contractors that can fulfill the requirements. This task order solicitation was competed in accordance with the market research report findings amongst women

- owned small
businesses under GSA IT S chedule 70 contract holders. In

accordance with FAR Part 8.405

- 1(d)(3)(ii), the solicitation was released to a total of five (5) vendors. In response to the solicitation a total of three (3) vendors provided proposals. As of the proposal submission due dat e, Alethix, [redacted] , and Harmonia Holdings su bmitted proposals in response to

YA1323

- 19

- KD

- 0001. Therefore, it is concluded that

reasonable competition in response to this solicitation exists.

• (emphasis in original).

The Price Evaluation Team next e xamined the prices for price reasonableness.

The Price Evaluation Team stated: “In determination of price reasonableness, a comparison was made between the IGCE and each of the Offeror’s proposed prices. ”

The Price Evaluation Team concluded :

Total Propos ed Price

Vendor Tot al Proposed Price Lower/Higher than
IGCE Amount Difference from IGCE

[redacted] $ [redacted] [redacted] $ [redacted]

Harmonia $ 37,168,903.23 [redacted] $ [redacted]

Alethix $ 38,216,255.80 [redacted] $ [redacted]

IGCE $ [redacted]

The Price Evaluation Team determined that all three offeror’s price proposals were lower than the IGCE, and indicated:

[redacted] proposed the lowest total estimated price which was [redacted]
below the IGCE. Harmonia proposed the second lowest price whi ch was [redacted] below the IGCE. Alethix proposed the highest price which was [redacted] below the IGCE. Even though the overall prices proposed by

each offeror are below the IGCE, all vendors proposed the same level of effort per the instructions in the solicitation. The difference in price is the result of competition which drove vendors to provide significant discounts in rates and the difference in alignment of the GSA Schedule 70 LCATS [ 6 ] to
the Government’s Task Or der Labor Categories. The evaluation team found
that the GSA IT Schedule 70 LCATS proposed appropriately mapped to the
Government’s task order roles for each vendor. Based on the price team’s findings, the prices proposed by the Offeror’s are reasonable fo r the work to be performed.

6 “LCAT” appears to refer to labor categories

.13

In summ ary, the Price Evaluation Team reiterated that the price rankings were: 1) [redacted] , 2) Harmonia, and 3) Alethix, and noted that :

The above analysis and findings support a determination that in the case of

all of the Offerors. All of the proposals recei ved in response to this solicitation were reasonable in price. Based on the individual analysis of the Offerors’ proposals, it was determined that the Offerors’ proposals included

labor rates that were fair and reaso nable. This determination is based on

th e fact that three (3) proposals were received in response to the solicitation therefore establishing competition, and the Offerors proposed fully burdened hourly rates that, for a majority of offerors, included disco unts off posted GSA IT Schedule contract rates. Furthermore, the General Services Administration (GSA) concluded that posted contract rates were fair and reasonable upon Schedule 70 contract award.

Subsequently, the lead from the Technical Evaluation Team and the lead from the

Price Evaluation Team conducted a Best Value Recommendation and Trade

- Off Analysis . After summarizing the technical evaluation and the price evaluation, the Best

Value Recommendation and Trade

- Off Analysis determined :

Alethix provided a thorough technical proposal that de monstrated significant strengths presenting numerous benefits to the Government. Alethix’s technical proposal had no notable or significant weaknesses or risks. Alethix’s technical approach demonstrated their capability to successfully perform the requirem ents and introduces innovative approaches, methods, and procedures that would benefit programs across
the USCB [United States Census Bureau] for years to come.

The Best Value Recommendation and Trade

- O ff Analysis noted that “[o]verall, Alethix proposed ut ilizing cutting edge, next generation technologies, developing [redacted] that could not only create efficiencies in our team performance, but improve quality and reduce costs for operations across the enterprise. ”

The Best Value Recommendation and Trade

- Off Anal ysis discussed the other two

offerors as well , in comparison to Alethix:

[redacted] and Harmonia Holdings Group’s proposals presented a few notable strengths. [redacted] proposal included utilizing [r edacted]

. Harmonia Holdings Group, LLC’s proposal incl uded introducing a [redacted]
into the ERS [Enterprise Reporting System] architecture and utilizing [redacted]

. Harmonia’s significant strengths provides USCB with a new technology offering new capabili ties, as well as development cycle

efficiencies. Aleth ix presented significant strengths that go beyond the approaches and present greater benefits t o the USCB than the technical strengths submitted by [redacted] and Harmonia Holdings Group,14

[redacted] . Alethix offers knowledge of the current Enterprise Repor ting System, as well as numerous USCB programs. Experience with the current Enterprise Reporting System is a significant asset to the successful completion to the task order requirements. Additionally, Alethix proposed

the utilization of [redacted] , which can provide efficiencies in new repor t building, software system design, requirement analysis, code migration,

and failure identification. Furthermore, Alethix has the ability to significa ntly

reduce the transition

- in period due to [redacted] . Overall, Ale thix proposed

numerous innovations to improve efficiencies and successfully meet the requirements. [redacted] and Harmonia Holdings Group are unable to

match thes e significant strengths an d correlating benefits to the USCB. Thus, Alethix’s proposal justifi es the increased price of $ [redacted] over [redacted] proposal and the increased price of $1,047,352.57 over Harmonia Holdings Group’s proposal.

The Best Value Recommendation and Trade

- Of f Analysis determined:

Alethix’s price proposal was the third lowe st at $38,216,255.80. This proposed price is [redacted] lower than the IGCE at $ [redacted] . In comparison to the IGCE, this provides the Government a cost savings of $ [redacted] over the life of the task order [sic] When considering the comparative strengt hs and risks of Alethix’s proposal, as well as the strengths, weaknesses and risks of Harmonia Holdings Group and [redacted] offers the best value to the Government ev en though Alethix’s

overall price is $1,047,352.57 higher than Harmonia Holdings Group an d $ [redacted] higher than [redacted] . Despite the total overall price in comparison to other vendor’s proposal, Alethix’s proposed price is $ [redacted] less than the G overnment’s estimate. The Technical proposal presented by Alethix warrants the higher ove rall tas k order price as outlined

above.

Finally, the Best Value Recommendation and Trade

- Off Analysis concluded:

Alethix’s technical proposal, based on the narrative in the TET consensus report, as well as Section 6

- Trade

- Off Analysis and Section 7

- Best Value Recommendation, was technically superior to the proposals submitted by other Offerors and had the highest price of $38,216,255.80 for the base and

o ption periods. Comparing the relative strengths, weaknesses, and risks as

documented in the TET c onsensus report, Alethix’s proposal possessed the highest quality strengths in the technical proposal, without any notable or significant weaknesses and risks. In conclusion, Alethix’s proposal provides the Best Value to the Government. With price and othe r factors considered,

it is the PET [Price Evaluation Team] and TET’s recommendation that

Alethix’s proposal is the best value for the Government in comparison to all
the other Offerors. Alethix is recommended for award at a total estimated price of $38,21 6,255.80 for the base and option periods. Alethix proposed15

a technically superior approach to meeting task order requirements that will provide innovation and price benefit to the Government.

On September 5, 2019, the contracting officer issued an Award Decision

Memorandum. 7 The twenty page Award Decision Memorandum recounted the purpose of the RFQ, the background on the Agency, the market history, procurement history, the type and length of the task order to be awarded, the evaluations, both technical an d price

for all three offerors, and the best value trade off analysis. The Award Decision

Memorandum indicated:

A draft Trade

- Offs/Best Value Recommendation report was prepared on July 16, 2019 which included the technical and price trade

- offs that should

be considered in the best value decision. The TET and PET reconvened following legal review/input on August 14, 2019 through August 16

, 2019. The TET and the PET took into consideration the information gathered and

the consensus was that the best value t o the Government would b e achieved by awarding to Alethix

, LLC at a total task order value of $38.216,255.80. In conjunction with his own independent j udgemnet [sic], the Contracting Officer

, Dijon Ferdinand

, took into consideration the Best

Value Recommend ation presented by th e TET and PET in his award

determination outlined below.

The Award Decision Memorandum, in the section titled: “Award Determination,”

concluded:

Alethix ’ s technical proposal

, based on the narrative in the TET consensus report, as w ell as Section 6

- Trade

- Off Analysis , an d Section 7

- Best Value Recommendation of the Best Value Recommendation document, was technically superior to the proposals submitted by other Offerors.
Com paring the relative strengths

, weaknesses, and risks as d ocumented in the TET consensus report

, Alethix ’ s proposal possessed the highest quality strengths in the technical proposal

, without any notable or significant weaknesses and risks. In conclusion, Al ethix ’ s proposal provides the Best
Value to the Govern m en t. With price and other factors considered

, it is the Contracting O ff icer ’ s determination

, Dijon Ferdinand, [sic] that Alethix ’ s proposal is the best value for the Government in comparison to all the other Offerors. The Contracting Officer, Dijon Ferdinand

, has determined award

to Alethix

, LLC at a total estimated price of $38,216,255.80 for the base and option periods is in the best interest to the Government. Alethix proposed a technically superior approach to meeting task order requirements that will

pro vide innovation and price benefit to the Government

.

On September 5, 2019, the Agency informed Harmonia and [redacted] by email they would not receive the award

. S ubsequently, on September 6, 2019, award was made

7 The Award Decision Memorandum was prepared by the contract specialist and approved by the contracting officer.16

to Alethix. On September 10, 2019, the Age ncy provided a written explanation by email for why Harmonia’s proposal was not selected. The explanation attached to the email

stated

, in part , with language similar to the T echni cal Evaluation Team ’s analysis :

There were some weaknesses/risks identifie d in the proposal, however,

those risks could potentially be mitigated in order to prevent any work stoppage in development or a mismanagement of Census Operations. Examples of those risks were as follows:

Technical approach

– RFP C.3.1/Proposal Page 2

- 6, Section 2.2.1. Harmonia Holding Group, LLC, proposes cross

- training of development staff and peer testing of other developer’s code. Cross

- training of staff or

peer testing could cause delays in delivery of software. This is considered

a low risk since AD SD monitors contractor performance and tasking to

maintain cost controls.

Technical approach

– RFP C.3.1/Proposal Page 2

- 8, Section 2.2.1. Harmonia Holding Group, LLC, proposes the introduction of [redacted]

. However, as of now, it is unclear if [redacte d] is compatible with existing USCB systems, it could create significant integration issues leading to an increase of costs, lost development time, and schedule delays. This is considered a moderate risk since this could introduce a level of complexity

to our environment making issues harder to troubleshoot and software tools harder to integrate.

(emphasis in original).

Thereafter, protestor filed its bid protest in this court. Protestor’s amended complaint 8 sets forth three counts, which relate to speci fic evaluations made by the Agency which protestor argues were “arbitrary and irrational.” Count 1 focuses on the two weaknesses identified by the September 10 , 2019 Agency letter and asserts that “ [t] he Agenc y assigned Harmonia a risk for proposing that i t would cross

- train its staff and peer

test other developers’ code,” and argues that “ [c]ross

- training gives Harmonia a nimble staff and assures that work continues with fewer failure points in surge situation s, turnover situations, and during employee lea ve,” and “[f] ar from creating a risk of delay, this practice saves development and patch cycles by catching bugs before release. Yet the Agency claimed that cross

- training presented a risk of delay.” Protestor also noted that

t he Agency assigned Harmonia a risk for its inclusion of [redacted] , and “[e]ven though Harmonia tentatively proposed the use of an [redacted] was an optional aspect of that proposal. It was arbitrary and capricious to assign a risk based on an optional proposal
element.” (emphasis in original). The protestor notes “the Agency also assigned

8 At the initial hearing, the court instructed protestor to file corrected ver sion of the complaint in compliance with the court’s Rules. Protestor subsequently filed a corrected complaint. Subsequently, protestor filed an amended complaint. Unless otherwis e indicated, the court refers to protestor’s amended complaint in this Opinio n.17

Harmonia’s proposal strengths in the very same factor for the use of cross

- training and [redacted] ,” and “[t]his inconsistency is the epitome of arbitra ry and irrational evaluation.”

In Count 2 of th e a mended c omplaint, protestor argues that “[t]he Agency’s failure to recognize the ostensible subcontractor issue apparent on the face of Alethix’s proposal
and refer Alethix to the SBA [ Small Business Administration] for a Status Determination

was irra tional and contrary to regulation.” Protestor argued that Alethix’s subcontractor, [redacted] , “was other than small for purposes of this acquisition ,” and “Alethix’s proposal made it apparent on its face that [redacted] was only an ostensible subcontracto r, rendering it an affiliate of Alethix and Alethix other than small.”

Count 3 of protestor’s amended complaint alleges that “[t] he Solicitation stated that the Agency would not choose a higher

- p riced offeror’s proposal unless it presented

material techni cal advantages over other proposals . What it did was worse. ” Protestor claims that “[i]f Factor 1 was the determining factor, then Harmonia should have won award, particularly as it proposed a lower price than Alethix. The Agency acted irrationally

when it made award to a lower

- rated, more

- expensive offeror contrary to the Solicitation’s terms.” Protestor continues: “The source selection authority’s independent review should

have reco gnized the ostensible subcontractor issue in Alethix’s proposals, and requ ired the contracting officer to refer Alethix to the SBA. It was unreasonable for the source selection authority not to do so,” and, moreover, “the source selection authority’s indep endent review should have revealed the irrational risks assigned to Harmon ia’s proposal under Factor 1, which almost certainly would have tipped the award to Harmonia.” Protestor contends, therefore, the award decision was irrational.

After the filing of the amended complaint, the parties filed cross

- motions for judgment on the Administrative Record, and the defendant and intervenor filed motions to dismiss protestor’s claim that the Agency was obligated to refer Alethix to the Small

Business Administratio n ( SBA ) for a Status Determination. Intervenor claims that “[t]his

court d oes not possess jurisdiction to make an initial size determination, which is exactly what Harmonia requests,” and defendant argues that the court should “ dismiss this size protest fi led by plaintiff, Harmonia Holdings Group, LLC (Harmonia), because Harmoni a challenges the size of the awardee and Harmonia did not exhaust its administrative

remedies. ” Regarding Counts 1 and 3 of protestor’s amended complaint, defendant argues “[t] he c ourt s hould r eject Harmonia’s c hallenge to the a ssignment of t wo r isks t o it s t echnical p roposal ,” and “Harmonia’s challenge to the best

- value determination lacks
merit.” Similarly, intervenor argues “[t]he Agency reasonably evaluated Harmonia’s proposal,” and that “[t]he Agency conducted a proper best

- value determination.”

DISC USSION

Before addressing Count 1 and Count 3 which the parties have filed cross

- motions for judgment on the Administrative Record, the court first turns to Count 2, and considers
defendant’s motion and intervenor’s motion to dismiss for failure to exhaust adminis trative

remedies. In protestor’s motion for judgment on the Administrative Record, protestor argues that “Alethix’s proposal should have put the contracting officer on notice that18

[redacted] was an ostensible subcontractor, triggering his duty to r efer the matter to the
Small Business Administration. ” Defendant contends that Harmonia’s size protest “must
be dismissed because Harmonia failed to exhaust its administrative remedies.” Similarly,

i ntervenor argues that “ Harmonia’s protest challenging the Agency’ s failure to refer Alethix to the SBA for a size determination should be dismissed,” because protestor did not follow the administrative procedures for a size protest at the SBA.

“T he doctrine of exhaustion of administrative remedies is one among related

doctrines

— including abstention, finality, and ripeness

— that govern the timing of federal

court decision making.” McCarthy v. Madigan , 503 U.S. 140, 144 (1992), superseded by

statute as recognized in Woodford v. Ngo , 548 U.S. 81 (2006 ). The Supreme Court has
held “ ‘ that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.’” McKart v. United States , 395 U.S. 185, 194 (1969) (quoting Myers v. Bethlehem Shipbuilding Cor p. , 303 U.S. 41, 50

- 51 (1938)); see also Woodford v. Ngo , 548 U.S. 81, 88 (2006); Sandvik Steel Co. v. United
States , 164 F.3d 596, 599 (Fed. Cir. 1998) (The general rule is that “no one is entitled to judicial relief for a supposed or threatened injury un til the prescribed administrative remedy has been exhausted.”); Burlington N. R.R. Co. v. United States , 752 F.2d 62 7, 629 (Fed. Cir. 1985).

“Exhaustion of administrative remedies serves two main purposes.” Woodford v. Ngo , 548 U.S. at 89; see also In re DBC , 545 F.3d 1373, 1378 (Fed. Cir. 2008). As described by the United States Supreme Court, the first, and primary, purpose i s the development of a proper factual background:

A primary purpose is, of course, the avoidance of premature interruption of

the administrative process. The agency, like a trial court, is created for the purpose of applying a statute in the first instanc e. Accordingly, it is normally desirable to let the agency develop the necessary factual background upon

which decisions should be based. And since agency decisions are frequently of a discretionary nature or frequently require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise.

McKart v. United States , 395 U.S. at 193

– 94; se e also Kappos v. Hyatt , 132 S. Ct. 1690, 1692 (2012) (noting that “‘the avoidance of premature interruption of the administrative process’” is the “primary purpose” of the doctrine of administrative exhaustion) . The United States Supreme Court has describe d this purpose of the exhaustion doctrine “recognizes the notion, grounded in deference to Congress ’ delegation of authority to coordinate branches of Government, that agencies, not the courts, ought to have primary responsibility for the programs that Con gress has charged them to administer.” McCarthy v. Madigan , 503 U.S. at 145. Under this theory , “[t]he administrative agency is created as a separate entity and invested with certain powers and duties. The courts ordinarily should not interfere with an ag ency until it has completed its action, or else has clearly exceeded its jurisdiction.” McKart v. United States , 395 U.S. at 194. “Exhaustion gives an agency ‘an opportunity to correct its own mistakes with respect to the programs19

it administers before it is hauled into federal court,’ and it discourages ‘disregard of [the agency's] procedures.’” Wo odford v. Ngo , 548 U.S. at 89 (quoting McKart v. United
States , 395 U.S. at 195) (alteration in original); Palladian Partners , Inc. v. United States

, 783 F.3d 12 43, 1254 (Fed. Cir. 2015); In re DBC , 545 F.3d at 1378; see also Kentucky v.
United States , 62 Fed. Cl. 445, 453 (2004) (“‘When administrative remedies have not been exhausted, “judicial review of administrative action is inappropriate,” since it is “a

gen eral rule that courts should not topple over administrative decisions unless the

administrative body not only has erred but has erred against objection made at the time appropriate under its practice.”’” (quoting Sandvik Steel Co. v. United States , 164 F.3 d at 599 (quoting Sharp Corp. v. United States , 837 F.2d 1058, 1062 (Fed. Cir. 1988))), aff’d

, 424 F.3d 1222 (Fed. Cir. 2005); see also McCarthy v. Madigan , 503 U.S. at 145 (“Correlatively, exhaustion principles apply with special force when ‘frequent and deliberate flouting of administrative processes’ could weaken an agency's effectiveness by enco uraging disregard of its procedures.” (quoting McKart v. United States , 395 U.S. at 195)).

The second purpose for requiring exhaustion of administrative remedie s is judicial economy. “And of course it is generally more efficient for the administrative process to go forward without interruption than it is to permit the parti es to seek aid from the courts at various intermediate stages.” McKart v. United States , 39 5 U.S. at 194 ; see also Palladian

Partners , Inc. v. United States , 783 F.3d a t 1254

- 55

. “Claims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court. In some cases, claims are sett led at the administrative level, and in others, the proceedings before the ag ency convince the losing party not to pursue the
matter in federal court.” Woodford v. Ngo , 548 U.S. at 88; see also McCarthy v. Madigan

, 503 U.S. at 145 (“When an agency has the opportunity to correct its own errors, a judicial controversy may well be moo ted, or at least piecemeal appeals may be avoided.”). “And it can serve judicial efficiency by promoting development of an agency record that is adequate for later court review an d by giving an agency a full opportunity to correct errors and thereby narrow or even eliminate disputes needing judicial resolution.” Itochu Bldg.
Products v. United States , 733 F.3d 1140, 1145 (Fed. Cir. 2013); Kentucky v. United
States , 62 Fed. Cl. at 4 59; Forest Products Nw., Inc. v. United States , 62 Fed. Cl. 109, 122 (2004), aff’d , 453 F.3d 1355 (Fed. Cir. 2006); see also Weinberger v. Salfi , 422 U.S. 749 (1975) (the doctrine of administrative exhaustion may allow an agency “to compile a

record which is adequate for judicial review”).

“Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its pr oceedings.” Woodford v. Ngo , 548
U.S . at 90

- 91; see also Arctic Slope Native Assoc., Ltd. v. Sebelius , 583 F.3d 785, 793 (Fed. Cir. 2009) (“Statutory time restrictions on the submission of administrative claims are a part of the requirement that a party mu st satisfy to properly exhaust admin istrative remedies.”), reh’g and reh’g en banc denied (Fed. Cir.), cert. denied , 131 S. Ct. 144 (2010); Kellogg Brown & Root Servs., Inc. v. United States , 115 Fed. Cl. 46, 51 (2014); Paradigm Learning, Inc. v. United St ates , 93 Fed. Cl. 465, 473 (2010). “ The fact that the administrative remedy was provided by a regulation rather than by a statute does not20

make the exhaustion doctrine inapplicable or inappropriate.” Sandvik Steel Co. v. United
States , 164 F.3d at 600; see also Itochu Bldg. Products v. Unite d States , 733 F.3d at 1145 n.1 (“Failure to exploit an available agency remedy, even if not specifically required, can constitute a failure to exhaust in appropriate circumstances.” (citing Corus Staal BV
v. United State s , 502 F.3d 1370, 1379 (Fed. Cir. 20 07) (“The exhaustion requirement in this context is therefore not simply a creature of court decision, as is sometimes the case, but is a requirement explicitly imposed by the agency as a prerequisite to judicial

review. ")).

The facts of a particular cas e, however, can call for an exception to otherwise requiring administrative exhaustion. See

, e.g.

, McKart v. United States , 395 U.S. at 197 (“We cannot agree that application of the exhaustion doctrine would be proper in the circumstances of the present ca se.”). “‘[A]dministrative remedies need not be pursued if the litigant's interests in immediate judicial review outweigh the government's interests in the efficiency or administrative autonomy that the exhaustion doctrin e is designed to
further.’” McCarthy v. Madigan , 503 U.S. at 146 (quoting West v. Bergland , 611 F.2d 710, 715 (8th Cir.1979), cert. denied , 449 U.S. 821 (1980)); see also Shalala v. Illinois Council on Long Term Care, Inc. , 529 U.S. 1, 13, reh'g denied , 52 9 U.S. 1095 (2000) (“Doctrines
of ‘r ipeness' and ‘exhaustion’ contain exceptions, however, which exceptions permit early review when, for example, the legal question is ‘fit’ for resolution and delay means hardship, or when exhaustion would prove ‘futile[. ]’” (citing McCarthy v. Madigan , 503
U.S. at 147

– 48)) (other citations omitted). T he Federal Circuit also has indicated that “[t]he futility exception to the exhaustion requirement has been applied in situations in which enforcing the exhaustion requiremen t would mean that parties would be required to go through obviously useless motions in order to preserve their rights. ” Corus Staal BV
v. United States , 502 F.3d 1370, 1379 (Fed. Cir. 2007) ( internal quotations omitte d ). The Federal Circuit has exp lained, however, that “[w]e apply the exception narrowly, however. ‘The mere fact that an adverse decision may have been likely does not excuse a party from a statutory or regulatory requirement that it exhaust administrative remedies.’”

Palladian Partners , Inc. v. United States , 783 F.3d at 1256 n.3 (quoting Corus Staal BV
v. United States , 502 F.3d at 1379).

The SBA has specific procedures regarding a concern’s self

- certification as small for a particular procurement. See g enerally 13 C.F.R. §§ 121.1001

– 121.1010

. In order to be considered a small business concern, an offeror must not exceed the size standard for the North American Industry Classificat ion System (NAICS) code specified in a solicitation, which is to be designa ted by the contracting officer. 13 C.F.R. § 121.402(a)

- (b) (2019)

. A small business concern is required to self

- certify that it under the s ize standard specified in the solicitation. 9

9 In order to be certified as a small business concern in the System for Award Management database maintained by the federal government , a small business concern is required to annually certify its size in connection with specific size. See 13 C.F.R. § 121.110 (2019)

. Notably, “[a] contracting officer may accept a concern's self

- certification as true for the particular procurement involved in the absence of a wr itten protest by other

offerors or other credible information which causes th e contracting officer or SBA to question the size of the concern.” 13 C.F.R. § 121.405 (b) (2019).21

A size protest must be filed with the contracting officer for the solicitation, who is required to forward the size protest to the SBA. See 13 C.F.R. § 121.1003 (2019) ; see also 13 C.F.R. § 121.1005 (2019)

. In addition, the SBA’s regulations for a size protest make plain,

[a]ppeals from fo rmal size determinations may be made to OHA. Unless an appeal is made to OHA, the size determination made by a SBA Government Contracting Area Office or Disaster Area Office i s the final decision of the agency. The procedures for appealing a formal size de termination to OHA are set forth in part 134 of this chapter [Chapter 1]. The OHA appeal is an administrative remedy that must be exhausted before judicial review of a

formal size determination may be sought in a court.

13 C.F .R. § 121.1101 (2019). 10 See a lso Taylor Consultants, Inc. v. United States , 90 Fed. Cl. 531, 547 (2009) (“Importantly, 13 C.F.R. § 121.1101 provides explicitly that this administrative remedy ‘must be exhausted before judicial review of a formal size

determ ination may be sought in a court.’” (emphasis in original) (quoting 13 C.F.R. § 121.1101(a) )); Int ’ l Mgmt. Servs., Inc. v. United States , 80 Fed. Cl. 1, 10 (2007) (“The
Area Off ice's formal size determination may be appealed to the OHA, but if no appeal is taken, the Area Office's size determination is the final decision of the agency.” (internal quotation marks and citations omitted)).

In International Management Services

, a de cision that most closely addresses the issue before this court, a Judge of the United States Court of Federal Claims further explained the procedures for a size protest.

Protests of a bidder ’ s status as a small business are governed by FAR subpart 19.3 a nd title 13, parts 121 and 134, of the Code of Federal Regulations. The size protest must be filed with the contracting officer, who then must forward the protest to the appropriate SBA Governm ent Contracting Area Office (“Area Office”). 13 C.F.R. §§ 121.1003

, .1006(a) ; FAR § 19.302(c)(1) . The Area Office then has ten business days in which

to make a formal size determination. 13 C.F.R. § 121.1009(a) ; FAR § 19 .302(g)(1) . Upon making its determination, the Area Office must notify the contracting officer, the protestor, and the protested offeror of its decision via certified mail with return receipt requested. 13 C.F.R. § 121.1009(f) ; FAR § 19.302(g)(1) . The contracting officer can award the contract based on the

formal size determination. 13 C.F.R. § 121.1009(g)(2) ; FAR § 19.302(g)(2)

.

The Area Office ’ s formal size determinatio n m ay be appealed to the OHA, 13 C.F.R. §§ 121.1009(g)(3)

, .1101(a) ; FAR § 19.302(i) , but if no appeal is

10 Somewhat relatedly, the United States Court of Appeals for the Federal Circuit has concluded that an offeror’s “failure to participate in the pending OHA ap peal was a failure

to exhaust its administrative remedies.” Palladian Partners, Inc. v. United States , 783 F.3d

at 1261

.22

taken, the Area Office ’ s size determination “is the final decision of the agency,” 13 C.F.R. § 121.1101(a) ; accord id. § 121.1009(g)(1) . The appellant must serve a copy of the appeal petition on the contracting officer.

Id. § 134.305(c)(2). If the contracting officer awards the contract prior to

re cei ving notice of the appeal, “the contract shall be presumed valid.” FAR § 19.302(g)(2) . The OHA's final decision on appeal is the “final decision of the SBA and becomes effective upon issuance.” 13 C.F.R. § 134.316 (a)

- (b) . If the OHA dismisses the appeal, “the Area Office size determination

remains in effect.” Id. § 134.316(b) . The SBA is required to inform the contracting officer of the OHA's final decision. FAR § 19.302(i) . If the contracting officer receives the OHA's final decision prior to awarding the contract, the decision will apply to the pending procurement. Id. ; 13 C.F.R. § 121.1009(g)(3) . However, if the contracting officer aw ards the contrac t prior to receiving the OHA's final decision, the final decision will apply only to future procurements. 13 C.F.R. § 121.1009(g)(3) ; FAR § 19.302(i)

.

Int’l Mgmt. Servs., Inc. v. United States , 80 F ed. Cl. at 9

- 10 (footnote s omitted).

In International Management Services, Inc. v. United States

, the Army awarded the contract to the intervenor on September 21, 2007, and six days later, on September 27, 2007, the International Management protestor fil ed a size protest with the contracting

officer. See id. at 10. The International Management court in dicated that “[t]he SBA dismissed plaintiff's size protest on October 26, 2007, for lack of standing, and there is no evidence that plaintiff appealed the S BA's dismissal to the OHA.” Id. (internal reference omitted). The Judge concluded t h at :

Congress ha s delegated to the SBA the authority to promulgate rules and regulations necessary to administer the Small Business Act, Pub. L. No.

85

– 536, 72 Stat. 384 (1 958) (codified as amended at 15 U.S.C. ch. 14A). 15 U.S.C. § 634(b)(6) . Included w ithin this delegation is the authority to

establish size standards for small businesses. Id. § 632. Pursuant to this authority, the SBA has promulgated 13 C .F.R. part 121, “Small Business Size Regulations,” which includes specific procedures that must be f ollowed to protest SBA size determinations and details the consequences of not complying with those procedures. The court cannot, and will not, ignore

these regulations. Here, the contracting officer was authorized to award a

contract based on a formal siz e determination, and did so without any notice that an appeal was pending before the OHA. Consequently, there can be no postaward size determination of defe ndant

- intervenor or Torres that would apply to this contract

. Int’l Mgmt. Servs., Inc. v. United States , 80 Fed. Cl. at 1 0

- 11.

There is no evidence in the record before the court that Harmonia made a size protest with the contracting officer, or any actio n was taken before the SBA. Harmonia

also does not allege that it made a size protest duri ng the solicitation process.23

Furthermore, protestor agrees that a size determination is “solely within the purview of the SBA.” Therefore, if Harmonia is making a siz e protest before this court in the first instance, the size protest must fail.

Harmonia argues that this protest “is not a size protest,” but instead argues “[w]hat
Harmonia asks the Court to determine is if the Agency’s failure to recognize the ostensibl e subcontracting issue and refer Alethix to the SBA for a size determination was irrational.” Protestor argues that the cover page of Alethix’s proposal stated that intervenor submitted it “[i]n partnership with: [redacted] ,” and “[t]his should have been t he Agency’s first clue that it might have an ostensible subcontractor problem on its hands.” Protestor further claims that “[e]xamination of Alethix’s proposal leaves no doubt that [redacted] , not Alethix, proposed to perform the Enterprise Reporting Effor t,” and “[b]y ignoring the substantial red flags in Alethix’s proposal, the Agen cy acted irrationally.”

Despite protestor’s protestations to the contrary, claiming that “ Harmonia does not
ask the Court to overturn an SBA size dete rmination: It asks the Court to direct the Agency
to refer Alethix to SBA to make a size determination ,” it is apparent that protestor seeks to have a size determination at this late stage of the proceedings. As SBA regulations specifically provide, a size protest must be filed with the contracting officer for the solicitation, who is required to forward the size protest to the SBA. See 13 C.F.R. § 121.1003 . Moreover, before a protest regarding size can be brought in court:

A ppeals from for mal size determinations may be made to OHA. Unless an appeal is made to OHA, the size determination made by a SBA Government Contracting Area Office or Disaster Area Office is the final decision of the agency. The procedures for appealing a formal size det ermination to OHA are set forth in part 134 of this chapter. The OHA appeal i s an administrative remedy that must be exhausted before judicial review of a formal size determination may be sought in a court.

13 C.F .R. § 121.1101 ; s ee also Taylor Consultants, Inc. v. United States , 90 Fed. Cl. at

547 (“Importantly, 13 C.F.R. § 121.1101 provides explicitly that this administrative remedy ‘must be exhausted before judicial review of a formal size determination ma y be sought

in a court.’” (emphasis in original) (quoting 13 C.F.R. § 121.1101(a) )) . As noted above, in the current protest before the court, none of the those steps have taken place. The SBA regulations generally provide that a prote st is considered timely when filed with the contracting officer by the close of the fifth business day after bid opening or the close of the fifth business day after notice to offerors of the selection of the successful offeror. See 13 C.F.R. § 121.1004(a) (2019). 11 Protes tor seeks a work around the timing requirement

11 13 C.F.R. § 121.1004(a) provides:

Protests by entities other than contracting officers or SBA

-

(1) Sealed bids or sales (including protests on partial set

- asides and reserves of Multiple Award Contracts and set

- asides of orders against Multiple Award Contracts). A protest must be received by the cont racting24

officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after bid opening for

(i) The contract; or

(ii) An order issued against a Multiple Award Contract if the contracting officer requested a n ew size certification in

connection with that order.

(2) Negotiated procurement (incl uding protests on partial set

- asides and reserves of Multiple Award Contracts and set

- asides of orders against Multiple Award Contracts). A protest must be received by th e contracting officer prior to the close of business on the 5th day, exclusive of Satu rdays, Sundays, and legal holidays, after the contracting officer has notified the protestor of the identity of the prospective awardee for

(i) The contract; or

(ii) An order issued against a Multiple Award Contract if the contracting officer requested a new size certification in

connection with that order.

(3) Long

– Term Contracts. For contracts with durations greater than five years (including options), including all e xisting long

- term contracts, Multi

agency contracts, Governmentwide Acquisition Contra cts and Multiple
Award Contracts:

(i) Protests regarding size certifications made for contracts must be received by the contracting officer prior to the close

of busines s on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after receipt o f notice (including notice received in writing, orally, or via electronic posting) of the identity of the prospective awardee or award.

(ii) Protests regarding size cert ifications made for an option period must be received by the contracting officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after receipt of notice (including notice received in writing, orally, or v ia electronic posting) of the size certification made by the protested concern.

(A) A contracting officer is not required to

terminate a contract where a concern is found to be other than small pursuant to a size protest concerning a size certification made for an option period.25

by having this court direct the SBA to conduct a size protest. In addition to being out of time, the protestor

, attempting to the court to compel a late size protest is in strict contrast

to the text of the SB A regulations which state that “[t] he OHA appeal is an administrative remedy that must be exhausted before judicial review of a formal size determination may be sought in a court. ” 13 C.F .R. § 121.1101

. Oddly, protes tor cites to International Management Se rvices, Inc. , for support, stating “[i]n the sole case Harmonia has found in which the Court of Federal Claims addressed this type of protest, it assumed, without deciding, that it had jurisdiction before finding the protestor did not have standing.” As qu oted above, however, the Judge in

Intern ational Management determined:

Congress has delegated to the SBA the authority to promulgate rules and regulations necessary to administer the Small Business Act, Pub. L. No.

85

– 536, 72 Stat. 384 (1958) (codified as amended at 15 U.S.C. ch. 14A). 15 U.S.C. § 634(b)(6) . Included within this delegation is the authority to

establish size standards for small businesses. Id. § 632. Pursuant to this authority, the SBA has promulgated 13 C.F.R. part 121, “S mall Business Size Regulations,” which i ncludes specific procedures that must be followed to protest SBA size determinations and details the consequences of not

(B) [Reserved]

(iii) Protests relating to size certificatio ns made in response to a contracting officer's request for size certifications in connection with an individual order must be received by the contracting officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holi days, after receipt of notice (including notice received in writing, orally, or via electronic posting) of the identity of the prospective awardee or awar d.

(4) Electronic notification of award. Where notification of award is made electronically, such as posting on the Internet under Simplified Acquisition Procedures, a protest must be received by the contracting officer before

close of business on the fif th day, exclusive of Saturdays, Sundays, and legal holidays, after the electronic posting.

(5) No not ice of award. Where there is no requirement for written pre

- award notice or notice of award, or where the contracting officer has failed to provide writte n notification of award, the 5

– day protest period will commence upon oral notification by the contract ing officer or authorized representative or another means (such as public announcements or other oral communications) of the identity of the apparent succ essful offeror

.

13 C.F.R. § 121.1004(a)

.26

complying with those procedures. The court cannot, and will not, ignore these regulations. Here , the contracting officer was authorized to award a contract based on a formal size determination, and did so without any notice that an appeal was pending before the OHA. Consequently, there can be no postaward size determination of defendant

- intervenor o r Torres that would apply to this contra ct

. Int’l Mgmt. Servs., Inc. v. United States , 80 Fed. Cl. at 1 0

- 11. The court sees no support for protestor’s position regarding the International Management case.

The court determines that despite the language used by Harmonia in its submissions to this court, the effect of Count 2, “[t]he Agency’s failure to recognize the ostensible subcontractor issue apparent on the face of Alethix’s proposal and refer Alethix
to the SBA for a Status Determination was irrational and contrary to regu lation,” seeks to compel this court to make a size determination by referring the matter to the SBA . As protestor did not raise this issue with the Agency, nor did the SBA make a size

determination before or after award was made, the co urt declines to make a post

- award size determination, or refer to the issue to the SBA. The defendant’s and intervenor’s motion to dismiss Count 2 is granted.

The court next considers the parties’ cross

- motions for judgment on the

Administrative Record fo r Count 1 and Count 3. Rule 52.1(c)(1) (2019) of the Rules of the United States Court of Federal Claims (RCFC) governs motions for judgment on the administrative record. The court’s inquiry is directed to “‘whether, given all the disputed and undisputed fa cts, a party has met its burden of proof based on the evidence in the

record.’” Mgmt. & Training Corp. v. United States , 115 Fed. Cl. 26, 40 (2014) (quoting A & D Fire Prot., Inc. v. United States , 72 Fed. Cl. 126, 131 (2006) (citing Bannum, Inc. v.

United States , 404 F.3d 13 46, 1356

- 57 (Fed. Cir. 2005))); see also Centerra Grp., LLC v.
United States , 138 Fed. Cl. 407, 412 (2018) ( citing Bannum, Inc. v. United States , 404

F.3d at 1356

- 57 ) ; Informatics Applications Grp., Inc. v. United States , 132 Fed. Cl. 5 19, 524 (2017) (citation omitted) ; Strategic Bus. Sols., Inc. v. United States , 129 Fed. Cl. 621, 627 (2016), aff’d , 711 F. App’x 651 (Fed. Cir. 2018); Rotech Healthcare Inc. v. United
States , 118 Fed. Cl. 408, 413 (2014); Eco Tour Adventures, Inc. v. Unit ed States , 114 Fed. Cl. 6, 21 (2013); DMS All

- Star Joint Venture v. United States , 90 Fed. Cl. 653, 661 (2010). Pursuant to RCFC 52.1, in a bid protest, the court reviews the agency’s procurement decision to determine whether it is supported by the adminis trative record

. See CW Gov’t Travel, Inc. v. United States , 110 Fed. Cl. 462, 481 (2013); see also
CR/ZWS LLC v. United States , 138 Fed. Cl. 212, 223 (2018) (citing Bannum, Inc. v.
United States , 404 F.3d at 1353

- 54).

The Administrative Dispute Resolution Act of 1996 ( ADRA), Pub. L. No. 104

- 320, §§ 12(a), 12(b), 110 Stat. 3870, 3874 (1996) (codified at 28 U.S.C. § 1491(b)(1)

– (4)), amended the Tucker Act to establish a statutory basis for bid protests in the United States
Court of Federal Claims. See Impres a Construzioni Geom. Domenico Garufi v. United
States , 238 F.3d 1324, 1330

- 32 (Fed. Cir. 2001); see also Sys. Application & Techs., Inc.
v. United States , 691 F.3d 1374, 1380 (Fed. Cir. 2012) (explaining that the Tucker Act expressly waives sovereign immun ity for claims against the United States in bid protests). The statute provides that protests of agency procurement decisions are to be reviewed27

under APA standards, making applicable the standards outlined in Scanwell Labs., Inc.
v. Shaffer , 424 F.2d 859 (D.C. Cir. 197 0), and the line of cases following that decision.
See

, e.g.

, Per Aarsleff A/S v. United States , 829 F.3d 1303, 1309 (Fed. Cir. 2016) (“P rotests of agency procurement decisions are reviewed under the standards set forth

in the Administrative Procedure Act (‘APA’), see 28 U.S.C. § 1491(b)(4) (citing 5 U.S.C

. § 706 ), ‘by which an agency’s decision is to be set aside only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]’ ” ( quoting NVT Techs.,
Inc. v. United States , 370 F.3d 1153, 1159 (Fed. Cir. 2004)) (citing PAI Corp. v. United
States , 614 F.3d 1347, 1351 (Fed. Cir. 2010))); Impresa Construzioni Geom. Domenico
Garufi v. United States , 238 F.3d at 1332; Res. Conservation Grp., LLC v. United States

, 597 F.3d 1238, 1242 (Fed. Cir. 2010) (“Following passage of the APA in 1946, the District
of Columbia Circuit in Scanwell Labs., Inc. v. Shaffer , 424 F.2d 859 (D.C. Cir. 1970), held that challenges to awards of government contracts were reviewable in federal district courts pursuant to the judicial review provisions o f the APA.”); Galen Med. Assocs., Inc.
v. United States , 369 F.3d 1324, 1329 (Fed. Cir.) (citing Scanwell Labs., Inc. v. Shaffer

, 424 F.2d at 864, 868, for its “reasoning tha t suits challenging the award process are in the public interest and disappointed bidders are the parties with an incentive to enforce the law”)

, reh’g denied (Fed. Cir. 2004) ; Banknote Corp. of Am., Inc. v. United States , 365 F.3d 1345, 1351 (Fed. Cir. 20 04) (“Under the APA standard as applied in the Scanwell line of cases, and now in ADRA cases, ‘a bid award may be set aside if either (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure

involved a violation of regulation or procedure.’” (quoting Impresa Construzioni Geom.
Domenico Garufi v. United States , 238 F.3d at 1332)); Info. Tech. & Applications Corp. v.
United States , 316 F.3d at 1319.

When discussing the appropriate standard of review for bid protest ca ses, the United States Court of Appeals for the Federal Circuit addressed subsections (2)(A) and (2)(D) of 5 U.S.C. § 706, see Impresa Construzioni Geom. Domenico Garufi v. United
States

, 238 F.3d at 1332 n.5, but focused its attention primarily on subsect ion (2)(A). See Croman Corp. v. United States , 724 F.3d 1357, 1363 (Fed. Cir.) (“‘[T]he proper standard to be applied [to the merits of] bid protest cases is provided by 5 U.S.C. § 706(2) (A) [(2006)]: a reviewing court shall set aside the agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”’” (alterations in original) (quoting Banknote Corp. of Am. v. United States , 365 F.3d at 13 50

- 51 (citing Advanced Data Concepts, Inc. v. United States , 216 F.3d 1054, 1057

- 58 (Fed. Cir.), reh’g denied (Fed. Cir. 2000)))), reh’g and reh’g en banc denied (Fed. Cir. 2013). The statute says that agency procurement actions should be set aside when th ey are “arbitrary, capricious, an abuse of discretion, or otherwise n ot in accordance with law,” or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D) (2018); 12 see also Veterans

12 The language of 5 U.S.C. § 706 provides in full:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall

—28

Contracting Grp., Inc. v. United States , 920 F.3d 80 1, 806 (Fed. Cir. 2019) (“In a bid protest, we follow Administrative Procedure Act § 706 and set aside agency action ‘if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” (quoting Palladian Partners, Inc. v. Un ited States , 783 F.3d 1243, 1252 (Fed. Cir. 2015)); Tinton Falls Lodg ing Realty, LLC v. United States , 800 F.3d 1353, 1358 (Fed. Cir. 2015); Orion Tech., Inc. v. United States , 704 F.3d 1344, 1347 (Fed. Cir. 2013); COMINT Sys. Corp. v. United States

, 700 F.3d 1377, 1381 (Fed. Cir. 2012) (“We evaluate agency

actions accordin g to the standards set forth in the Administrative Procedure Act; namely, for whether they are ‘arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law .’” (quoting 5 U.S.C. § 706(2)(A); and Bannum, Inc. v. United States

, 404 F.3d at 1351)); Savantage Fin. Servs. Inc., v. United States , 595 F.3d 1282, 1285

- 86 (Fed. Cir. 2010); Weeks Marine, Inc. v. United States , 575 F.3d 1352, 1358 (Fed. Cir. 2009); Axio m Res. Mgmt., Inc. v. United States , 564 F.3d at 1381 (noting arbitrary an d capricious standard set forth in 5 U.S.C. § 706(2)(A), and reaffirming the analysis of Impresa Construzioni Geom. Domenico Garufi v. United States , 238 F.3d at 1332); Blue
& Gold F leet, L.P. v. United States , 492 F.3d 1308, 1312 (Fed. Cir. 2007) (“‘[T]he inquiry is whether the [government]’s procurement decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”’” (quoting Bannum, Inc. v. U nited
States , 404 F.3d at 1351 (quoting 5 U.S.C. § 706(2)(A) (2000)))); NV T Techs., Inc. v.
United States , 370 F.3d at 1159 (“Bid protest actions are subject to the standard of review

established under section 706 of title 5 of the Administrative Procedure Act (‘APA’), 28 U.S.C. § 1491(b)(4) (2000), by which an agency’s decision is to be set aside only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ 5 U.S.C. § 706(2)(A) (2000).” (internal citations omitted) ); Info. Tech. & Applications Corp.

(1) compel agency action unlawfully withheld or unreasonably delayed;

and

(2) hold unlawful and set aside agency action, findings, and co nclusions

found to be

— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) co ntrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short

of stat utory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subje ct to sections
556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the fa cts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing de terminations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prej udicial error.

5 U.S.C. § 706.29

v. United States , 316 F.3d at 1319 (“C onsequently, our inquiry is whether the Air Force’s procurement decision was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ 5 U.S.C. § 706( 2)(A) (2000).”); Synergy Sols., Inc. v. United
States , 133 Fed. Cl. 716, 7 34 (2017) (citing Banknote Corp. of Am. v. United States , 365 F.3d at 1350); Eco Tour Adventures, Inc. v. United States , 114 Fed. Cl. at 22; Contracting, Consulting, Eng’g LLC v. Uni ted States , 104 Fed. Cl. 334, 340 (2012). “In a bid protest case, the agen cy’s award must be upheld unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Turner Constr. Co. v. United States

, 645 F.3d 1377, 1383 (Fed. Cir.) (quoting PAI Corp. v. United States , 614 F.3d at 1351),

r eh’g en banc denied (Fed. Cir. 2011); see also Tinton Falls Lodging Realty, LLC v. United
States , 800 F.3d at 1358 (“In applying this [arbitrary and capricious] standard to bid prote sts, our task is to determine whether the procurement official’s decision lacked a rational basis or the procurement procedure involved a violation of a regulation or procedure.” (citing Savantage Fin. Servs., Inc. v. United States , 595 F.3d at 1285

- 86)); Glenn Def. Marine (ASIA), PTE Ltd. v. United States , 720 F.3d 901, 907 (Fe d. Cir.), reh’g

en banc denied (Fed. Cir. 2013); McVey Co., Inc. v. United States , 111 Fed. Cl. 387, 402 (2013) (“The first step is to demonstrate error, that is, to show that the ag ency acted in an arbitrary and capricious manner, without a rational basis or contrary to law.”); PlanetSpace, Inc. v. United States , 92 Fed. Cl. 520, 531

- 32 (“Stated another way, a plaintiff must show that the agency’s decision either lacked a rational ba sis or was contrary to law.” (citing Weeks Marine, Inc. v. United States

, 575 F.3d at 1358)), subsequent determination , 96 Fed. Cl. 119 (2010).

The United States Supreme Court has identified sample grounds which can constitute arbitrary or capricious ag ency action:

[W]e will not vacate an agency’s decision unless it “has rel ied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision

that runs count er to the evidence before the agency, or is so implausible

that it could n ot be ascribed to a difference in view or the product of agency expertise.”
Nat’l Ass’n of Home Builders v. Defenders of Wildlife , 551 U.S. 644, 658 (2007) (quoting

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983)); see

a lso F.C.C. v. Fox Television Stations, Inc. , 556 U.S. 502, 552 (2009); Tinton Falls Lodging Realty, LLC v. United States , 800 F.3d at 1358; Ala. Aircraft Indus., Inc.

- Birm ingham v. United States , 586 F.3d 1372, 1375 (Fed. Cir. 2009), reh’g and reh’g en ban c denied (Fed. Cir. 2010); In re Sang Su Lee , 277 F.3d 1338, 1342 (Fed. Cir. 2002) (“[T]he agency tribunal must present a full and reasoned explanation of its decision.

. . . The reviewing court is thus enabled to perform meaningful review .

. . .”); Textr on, Inc. v.
United States , 74 Fed. Cl. 277, 285

- 86 (2006), appeal dismissed sub nom. Textron, Inc. v. Ocean Technical Servs., Inc. , 223 F. App’x 974 (Fed. Cir. 2007). The United States Supreme Court also has cautioned, however, that “courts are not free to impose upon agencies specific procedural requirements that have no basis in the APA.” Pension Benefit Guar. Corp. v. LTV Corp. , 496 U.S. 633, 654 (1990).30

Under an arbitr ary or capricious standard, the reviewing court should not substitute its judgment fo r that of the agency, but should review the basis for the agency decision to determine if it was legally permissible, reasonable, and supported by the facts. See Motor

Veh icle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. at 43 (“The scope of

rev iew under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.”); see also Dell Fed. Sys., L.P. v. Unite d
States , 906 F.3d 982, 990 (Fed. Cir. 2018); Turner Constr. Co., Inc. v. United Stat es , 645 F.3d at 1383; R & W Flammann GmbH v. United States , 339 F.3d 1320, 1322 (Fed. Cir. 2003) (citing Ray v. Lehman , 55 F.3d 606, 608 (Fed. Cir.), cert. denied , 516 U.S . 916 (1995)); Synergy Sols., Inc. v. United States , 133 Fed. Cl. at 735 (citing Impr esa Construzioni Geom. Domenico Garufi v. United States , 238 F.3d at 1332

- 33). “‘“If the court finds 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 concl usion as to the proper administration and application of the procurement regulations.”’” Weeks Marine,
Inc. v. United States , 575 F.3d at 1371 (quoting Honeywell, Inc. v. United States , 870 F.2d 644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co. v. Seam ans , 455 F.2d 1289, 1301 (D.C. Cir. 1971))); Limco Airepair, Inc. v. United States , 130 Fed. Cl. 544, 550 (2017) (citation omitted); Jordan Pond Co., LLC v. United Stat es , 115 Fed. Cl. 623, 631 (2014); Davis Boat Works, Inc. v. United States , 111 Fed. Cl. 342, 349 (2013); Norsat Int’l [America], Inc. v. United States , 111 Fed. Cl. 483, 493 (2013); HP Enter. Servs., LLC v.
United States , 104 Fed. Cl. 230, 238 (2012); Vang uard Recovery Assistance v. United
States , 101 Fed. Cl. 765, 780 (2011).

Stated otherwi se by the United States Supreme Court:

Section 706(2)(A) requires a finding that the actual choice made was not “arbitrary, capricious, an abuse of discretion, or othe rwise not in accordance with law.” To make this finding the court must consider whether the decision

was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be

se arching and careful, the ultimate standard of review is a narrow one. The

court is not e mpowered to substitute its judgment for that of the agency.

Citizens to Pres. Overton Park, Inc. v. Volpe , 401 U.S. 402, 416 (1971) (internal citations omitted), abrog ated on other grounds by Califano v. Sanders , 430 U.S. 99 (1977); see also U.S. Postal S erv. v. Gregory , 534 U.S. 1, 6

- 7 (2001); Bowman Transp., Inc. v.

Arkansas

- Best Freight Sys., Inc. , 419 U.S. 281, 285 (1974), reh’g denied , 420 U.S. 956 (1975); Co

- Steel Raritan, Inc. v. Int’l Trade Comm’n , 357 F.3d 1294, 1309 (Fed. Cir. 2004) (In discussin g the “arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with the law” standard, the Federal Circuit stated: “the ultimate standard of

revi ew is a narrow one. The court is not empowered to substitute its judgment for that of

th e agency.”); In re Sang Su Lee , 277 F.3d at 1342; Advanced Data Concepts, Inc. v.
United States , 216 F.3d at 1058 (“The arbitrary and capricious standard applicable her e is highly deferential. This standard requires a reviewing court to sustain an agency a ction evincing rational reasoning and consideration of relevant factors.” (citing Bowman Transp., Inc. v. Arkansas

- Best Freight Sys., Inc. , 419 U.S. at 285)); Lockheed Missiles &31

Space Co. v. Bentsen , 4 F.3d 955, 959 (Fed. Cir. 1993); ); Sys. Studies & Sim ulation, Inc.
v. United States

, 146 Fed. Cl. 186

, 199 (2019); By Light Prof’l IT Servs., Inc. v. United
States , 131 Fed. Cl. 358, 366 (2017); BCPeabody Constr. Servs., Inc. v. United States

, 112 Fed. Cl. 502, 508 (2013) (“The court ‘is not empowered to sub stitute its judgment for that of the agency,’ and it must uphold an agency’s decision against a challenge if the ‘contracting agency provided a coherent and rea sonable explanation of its exercise of discretion.’” (internal citations omitted) (quoting Keeto n Corrs., Inc. v. United States , 59 Fed. Cl. 753, 755, recons. denied , 60 Fed. Cl. 251 (2004); and Axiom Res. Mgmt., Inc. v.
United States , 564 F.3d at 1381)), appeal dismissed , 559 F. App’x 1033 (Fed. Cir. 2014); Supreme Foodservice GmbH v. United States

, 109 Fed. Cl. at 382; Alamo Travel Grp.,
LP v. United States , 108 Fed. Cl. 224, 231 (2012); ManTech Telecomms. & Info. Sys. Corp. v. United States , 49 Fed. Cl. 57, 63 (2001), aff’d , 30 F. App’x 995 (Fed. Cir. 2002).

According to the United States Court o f Appeals for the Federal Circuit:

Effective contracting demands broad discretion. Burroughs Corp. v. United
States , 223 Ct. Cl. 53, 617 F.2d 590, 598 (1980); Sperry Flight Sys. Div. v.
United States , 548 F.2d 915, 921, 212 Ct. Cl. 329 (1977); see NKF Eng ’g,
Inc. v. United States , 805 F.2d 372, 377 (Fed. Cir. 1986); Tidewater Management Servs., Inc. v. United States , 573 F.2d 65, 73, 216 Ct. Cl. 69 (1978 ); RADVA Corp. v. United States , 17 Cl. Ct. 812, 819 (1989), aff’d , 914 F.2d 271 (Fed. Cir. 1990). Accor dingly, agencies “are entrusted with a good deal of discretion in determining which bid is the most advantageous to the
Government.” Tidewater Managemen t Servs. , 573 F.2d at 73, 216 Ct. Cl.

69.

Lockheed Missiles & Space Co. v. Bentsen , 4 F.3d at 958

- 59; s ee also Res

- Care, Inc. v.
United States , 735 F.3d 1384, 1390 (Fed. Cir.) (“DOL [Department of Labor], as a federal procurement entity, has ‘broad discretion to determine what particular method of procurement will be in the best interests of the United Stat es in a particular situation.’” (quoting Tyler Constr. Grp. v. United States , 570 F.3d 1329, 1334 (Fed. Cir. 2009))), reh’g

en banc denied (Fed. Cir. 2014); Grumman Data Sys. Corp. v. Dalton , 88 F.3d 990, 995 (Fed. Cir. 1996); Geo

- Med, LLC v. United States , 126 Fed. Cl. 440, 449 (2016); Cybertech Grp., Inc. v. Unit ed States , 48 Fed. Cl. 638, 646 (2001) (“The court recognizes that the agency possesses wide discretion in the application of procurement regulations.”); Furthermore, according to the United State s Court of Appeals for the Federal Circuit:

Contracting off icers “are entitled to exercise discretion upon a broad range of issues confronting them in the procurement process.” Impresa
Construzioni Geom. Domenico Garufi v. United States , 238 F.3d 1324,

13 32 (Fed. Cir. 2001) (internal quotation marks omitted). Acco rdingly, procurement decisions are subject to a “highly deferential rational basis

review.” CHE Consulting, Inc. v. United States , 552 F.3d 1351, 1354 (Fed. Cir. 2008) (internal quotation marks om itted).32

PAI Corp. v. United States , 614 F.3d at 1351; see also AgustaWestland N. Am., Inc. v.
United States , 880 F.3d at 1332 (“Where, as here, a bid protester challenges the procurement official’s decision as lacking a rational basis, we must determine whether ‘the contracting agency provided a coherent and rea sonable explanation of its exercise of discretion,’ recognizing that ‘contracting officers are entitled to exercise discretion upon a broad range of issues confronting them in the procurement proc ess.’” (quoting Impresa
Construzioni Geom. Domenico Garufi v . United States , 238 F.3d at 1332

- 33 (internal quotation marks and citation omitted))); Weeks Marine, Inc. v. United States , 575 F.3d at

1368

- 69 (“We have stated that procurement decisions ‘invoke [ ] “highly deferential”

rational basis review.’ Under that standard, we sustain an agency action ‘evincing rational reasoning and consideration of relevant factors.’” (alteration in original) (quoting CHE Consulting, Inc. v. United States , 552 F.3d at 13 54 (quoting Advanced Data Concepts,
Inc. v. United States , 2 16 F.3d at 1058))).

A disappointed bidder has the burden of demonstrating the arbitrary and capricious nature of the agency decision by a preponderance of the evidence. See Tinton Fall Lodging R ealty, LLC v. United Sates , 800 F.3d at 1364; see also Grumman Data Sys. Corp. v. Dalton , 88 F.3d at 995

- 96; Enhanced Veterans Sols., Inc. v. United States , 131 Fed. Cl. 565, 578 (2017); Davis Boat Works, Inc. v. United States , 111 Fed. Cl. at 349;
Contrac ting, Consulting, Eng’g LLC v. United States , 104 Fed. Cl. at 340. The Federal
Cir cuit has indicated that “[t]his court will not overturn a contracting officer’s determination unless it is arbitrary, capricious, or otherwise contrary to law. To demonstrate that such a determination is arbitrary or capricious, a protester must identify ‘ hard facts’; a mere inference or suspicion .

. . is not enough.” PAI Corp. v. United States , 614 F.3d at 1352 (citing John C. Grimberg Co. v. United States , 185 F.3d 1297, 13 00 (Fed. Cir. 1999)); see also Turner Constr. Co., Inc. v. United States , 645 F.3d at 1387; Sierra Nevada Corp. v.
United States , 107 Fed. Cl. 735, 759 (2012); Filtration Dev. Co., LLC v. United States , 60 Fed. Cl. 371, 380 (2004).

A bid protest proceeds in two steps. First . . . the trial court determines whether the government acted without rational basis or contrary to law when evaluating the bids and awarding the contract. Second .

. . if the trial court finds that the government’s conduct fails the A PA review under 5 U.S.C. § 706(2)(A), then it proceeds to determine, as a factual matter, if the bid protester was prejudiced by that conduct.

Bannum, Inc. v. United States , 404 F.3d at 1351; T Square Logistics Servs. Corp. v.
United States , 134 Fed. Cl. 550, 555 (2017); FirstLine Transp. Sec., Inc. v. United States

, 119 Fed. Cl. 116, 126 (2014), appeal dismissed (Fed. Cir. 2015); Eco Tour Adventures,
Inc. v. United States , 114 Fed. Cl. at 22; Archura LLC v. United States , 112 Fed. Cl. at 496. To prevail i n a bid protest case, the protestor not only must show that the government’s actions were arbitrary, capricious, or otherwise not in accordance with the law, but the protestor also must show that it was prejudiced by the government’s actions.
See 5 U.S.C. § 706 (“[D]ue account shall be taken of the rule of prejudicial error.”); see also Glenn Def. Marine (ASIA), PTE Ltd. v. United States , 720 F.3d at 907 (“In a bid protest case, the inquiry is whether the agency’s action was arbitrary, capricious, an33

abuse of discretion, or otherwise not in accordance with law and, if so, whether th e error is prejudicial.”); IT Enter. Sols. JV, LLC v. United States , 132 Fed. Cl. 158, 173 (2017) (citing Bannum v. United States , 404 F.3d at 1357

- 58); Linc Gov’t Servs., LLC v. United
States , 96 Fed. Cl. 672, 694

- 96 (2010). In describing the prejudice re quirement, the
Federal Circuit also has held that:

To prevail in a bid protest, a protester must show a significant, prejudicial error in the procurement process. See Statistica, Inc. v. Christopher , 102 F.3d 1577, 1581 (Fed. Cir. 1996); Data Gen. Corp. v. Johnson , 78 F.3d 1556, 1562 (Fed. Cir. 1996). “To establish prejudice, a protester is not required to show that but for the alleged error, the protester would have

been awarded the contract.” Data General , 78 F.3d at 1562 (citation omitted). Rather, the protester must show “that there was a substantial

ch ance it would have received the contract award but for that error.”
Statistica , 102 F.3d at 1582; see CACI, Inc.

- Fed. v. Unite d States , 719 F.2d 1567, 1574

- 75 (Fed. Cir. 1983) (to establish competitive prejudice, protester

must demonstrate that but for th e alleged error, “‘there was a substantial chance that [it] would receive an award

-- that it was within the zone of active

consi deration.’” (citation omitted)).

Alfa Laval Separation, Inc. v. United States , 175 F.3d 1365, 1367 (Fed. Cir.), reh’g denied (Fe d. Cir. 1999); see also Glenn Def. Marine (ASIA), PTE Ltd. v. United States , 720 F.3d at 912; Allied Tech. Grp., Inc. v. United States , 649 F.3d 1320, 1326 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2011); Info. Tech. & Applications Corp. v. United States , 316 F.3d at 1319; Impresa Construzioni Geom. Domenico Garufi v. United States , 238 F.3d at

1332

- 33; OMV Med., Inc. v. United States , 219 F.3d 1337, 1342 (Fed. Cir. 2000); Advanced Data Concepts, Inc. v. United States , 216 F.3d at 1057; Stratos Mobi le Networks USA, LLC v. United States , 213 F.3d 1375, 1380 (Fed. Cir. 2000).

With regard to Count 1, i n addition to the above cite d deference owed to the Agency in a bid protest, “[t]he court gives great deference to an agency ’ s technical

evaluation of a n offeror's proposal.” North South Consulting Grp. v. United States , 141
Fed. Cl

. 549, 554 (2019) (quoting Textron, Inc. v. United States , 74 Fed. Cl. 277, 297 (2006) ; see also L

- 3 Commc'ns. EOTech, Inc. v. United States , 87 Fed. Cl. 656, 664 (2009). “[T]echnical ratings and the timing of various steps in the procurement involv e discretionary determi nations of procurement officials that a court will not second guess.”
E.W. Bliss Co. v. United States , 77 F.3d at 449 ( citing Lockheed Missiles & Space Co. v.

Bentsen , 4 F.3d at 958 ) ; see also Omega World Travel, Inc. v. United States , 54 Fed. Cl. 570, 578 (2002) (“It is well settled that contracting officers are given broad discretion with respect to evaluation of technical proposals.”). “This deference is height ened for cases

involvin g highly technical subject matter.” Red Cedar Harmonia, LLC v. United States

, 144

Fed. Cl. 11, 22 (2019)

.

Protestor argues “ [t]he Agency’s assignment of two risks to Harmonia for proposal strengths was irrational. ” First, protestor claims “[t]he Agency’s a ssignment of a risk for

cross

- training its development staff and peer

- testing other developer’s code was irrational,” because “[n]either practice as Harmonia proposed them leads to any risk of34

non

- performance, and both enh ance the chance of successful perf ormance.” ( emphasis in original). Second, protestor argues that “[i]t was irrational to assign Harmonia a risk for proposing the use of [redacted] .” Defendant respon ds that “Harmonia’s challenge to the assignment of two risks to its technical proposal ” s ho uld be rejected because “ it amounts to mere disagreement with the technical evaluation.” Intervenor, similarly, argues that “[t]he Agency’s assignment of risk for Harm onia’s proposed cross

- training and peer testing was reasonable.”

As noted above, the Te chnical Evaluation Team stated , in part, with regard to protestor’s risks for Factor 1

- Technical:

Risks:

3. Technical approach

– RFP C.3.1/Proposal Page 2

- 6, Section 2.2.1. The

offeror proposes cross

- training of development staff and peer testing of

other developer’s code. Cross

- training of staff or peer testing could cause delays in delivery of software. This is considered a low risk since ADSD [Applications D evelopment and Services Division] monitors contractor performance and tasking to maintain cost co ntrols.

4. Technical approach

– RFP C.3.1/Proposal Page 2

- 8, Section 2.2.1. The

offeror proposes the introduction of [redacted] . However, as of now, it is

unclea r if [redacted] is compatible with existing USCB [United States Census Bureau] systems, it could create significant integration issues leading to an increase of costs, lost development time, and schedule delays.

This is considered a moderate risk since thi s could introduce a level of complexity to our environment making issues harder to troubleshoot a nd

software tools harder to integrate.

(emphasis in original).

For the cross

- training and peer testing risk, protestor notes that in addition to the finding a risk, in its technical evaluation, the Technical Evaluation Team also found a strength, which stated: “The offeror proposes cross

- training of development staff. This is significant because this would eliminate single points of failure/dependencies on individuals and make the overall team (Government and Contractor) more efficient in responding to i nquiries and issues.” Protestor argues that “[a]ssigning this aspect of Harmonia’s proposal a risk, while simultaneously finding it to be a strength in the same evaluation factor defies logic, and is the epitome of arbitrary , capricious, and irrational

beh avior.” Protestor also claims that “it appears that the Agency misread o r misunderstood Harmonia’s proposal. Harmonia did not propose that it would peer test anyone else’s code. What Harmonia proposed was that it would develop its own code, then peer test it. ” (emphasis in original). Protestor, however, overlooks that the eval uation

risk noted by the Agency was “[c] ross

- training of staff or peer testing could cause delays in delivery of software.” The Agency did not indicate that peer testing another’s code would cause delays, but that any peer testing might cause delay. In add ition, it appears35

reasonable to the court that the same proposal could have benefits, but also pose some risk, as the Agency appeared to see the benefit if cross training “would elimin ate single points of failure/dependencies on individuals and make the ov erall team (Government and Contractor) more efficient in responding to inquiries and issues,” but also the risk if it “could cause delays in delivery of software .” Moreover, the Agency only considered the

risk of cross training “a low risk” because , as the Technical Evaluation Team explained, the Applications Development and Services Division “monitors contractor performance and tasking to maintain cost controls.” Furthermore, the Agenc y’s approach to cross

training was consistent among the proposals, as the awardee was awarded a strength, and a weakness for proposing cross

- training. For Alethix’s proposal t he Technical

Evaluation Team indicated as a strength for Factor 1 :

Management App roach

– RFP C.3.6.2.3/Proposal Page 22, Section 4.6

. The offeror proposes staff cross

- training. This is significant because this

would enhance the program’s ability to withstand departures or extended leave, and greatly enhance the program’s ability to pro vide support during times of staffing transitions.

(emph asis in original). The Technical Evaluation Team also noted a weakness for Alethix’s proposal for Factor 1 :

Management Approach

– RFP C.3.6.2.3/Proposal Page 22, Section 4.6

. The offeror proposes cr oss

- training of development staff and peer testing

of oth er developer’s code. Cross

- training of staff or peer testing could cause delays in delivery of software. This is considered a low risk since ADSD monitors contractor performance and tasking to mainta in cost controls.

(emphasis in original). Furthermore, a s noted above

, t echnical ratings and the timing of various steps in the procurement involve discretionary determinations of procurement officials that a court will not second guess.” E.W. Bliss Co. v. United States , 77 F .3d at

449 ( citing Lockheed Missiles & Space Co. v. Bentsen , 4 F.3d at 958 )

.

Protestor also cites to Allied Technology Group, Inc. v. United States , 94 Fed. Cl. 16 (2010), aff’d , 649 F.3d 1320 (Fe d. Cir. 2011), to show inconsistency “in a technical

evaluation where evaluators ‘marked both “significant strength” and “significant weakness” for the same proposal feature in the same sub

- factor.’” The court notes, however, in Allied

, members of the Tech nical Evaluation Panel marked both “significant strength” and “significant weakness” for the same proposal feature in the same sub

- factor,

but for different offerors. See id. at 46. The Allied court, by way of example, stated “[o]ne

eval uator identified Av ue ’ s Concierge Service as a ‘significant strength,’ but then assigned Allied a ‘significant weakness’ for the same feature. Also, it appears that evaluators credited Monster with ‘significant strengths’ for ARS system [Automated Integrat ed Staffing, Recrui tment and Position Classification System] features for which Allied was not similarly credited.” Id. (internal references omitted). The inconsistency was by way of comparison between different offerors, not the same offeror’s proposal. Moreover, in Allied

, the court concluded that “[t]o be sure, DOJ did not conduct a flawless36

procurement, but its award decision has a reasonable basis. The Court cannot say that
DOJ ’ s ultimate selection of Monster was arbitrary or capricious, even if the Court itself might ha ve conducted the procurement more in accord with the agency's acquisition plan.” Id. at 24. Disagreement with the Agency’s evaluatio n, however, is not a sufficient ground to find for protestor. See Bannum, Inc. v. United States , 91 Fed. Cl. 160, 176 (2009) (“Bannum continues to assert mere disagreement with the BOP's [Federal Bureau of Prisons’] assessment of its proposal. These conten tions remain insufficient to persuade the Court that the BOP acted unreasonably. See J WK Int ’ l Corp. v. United States , 52 Fed. Cl. 650, 660 (2002) (determining that ‘naked claims’ of disagreement with evaluations ‘no matter how vigorous, fall far short of meeting the heavy burden of demonstrating that the findings in question were the produc t of an irrational process and hence were arbitrary and capricious.’”) ; see also Def. Base Servs., Inc. v. United States , 19

- 1608C, 2020 WL

1228437 at *9 (Fed. Cl. Mar. 13, 2020) (“ An offeror's disagreement with the age ncy's judgment, without more, is insu fficient to establish that the agency acted unreasonably. ”) ; Harmonia Holdings Grp., LLC v. United States

, 146 Fed. Cl. 799, 816 (2020 ) ( “ Additionally, the Court concludes plaintiff's argument that the Agency irrationally determined Harmonia did not fully understand the contract's requirements amounts to a mere disagreement with the Agency's decision, and therefore falls short of meeting the burden of proof required to establish that the Agency's action was arb itrary and capricious. ” ). 13 If the Agency in the above captioned protest believed that despite the potential benefits of peer

- testing and cross

- training, there was a risk of delays, the court does not find it an arbitrary consideration by the Agency as part of its evaluation decision

making process.

Re garding the second risk, involving [redacted] , the Agency determined “ as of now, it is unclear if [redacted] is compatible with existing USCB [United States Census Bureau] systems, it could create significant integration issues leading to an increase of

co sts, lost development time, and schedule delays. This is considered a moderate risk since this could introduce a level of complexity to our environment making issues harder

to troubleshoot and software tools h arder to integrate.” Protestor argues that “ Har monia did not propose that it would necessarily use [redacted] ,” but that Harmonia’s technical proposal indicated that it would use “an [redacted] [ 14 ] [redacted]

, such as [redacted] .” (emphasis in original). The court first notes that it was not in passing that protestor

mentioned [redacted] . The full context of prote stor’s reference “such as [redacted] ” from its proposal is:

We propose the use of an [redacted] , such as [redacted] (which we are implementing for USDA [§5.2]), to potentially reduce development time and accelerate information capability delivery. [redacte d] is a comprehensive data warehousing development suite that seamlessly integrates the full

13 The court notes that the cited Harmonia Holdings decision is an unrelated prote st brought by protestor regarding a pre

- award protest for a solicitation issued by the United
States Customs and Border Protection. See general ly Harmonia Holdings Grp., LLC v.
United States

, 146 Fed. Cl. 799.

14 As indicated above, “ [redacted] ” stands for [redacted]

.37

development life

- cycle through integrated metadata & automation. [redacted] interfaces with SAS among other systems. Benefits with an [redacted] include introduce data sources faster, lower project cost, flatten development team, and automate documentation. (In Figure 3 [included in Harmonia’s proposal] the red arrows signify data movement utilizing [reda cted] or web services which would be [redacted] , for e.g. using [redacted] ). The [redacted] will also shorten development cycle time by ~65% by linking data models through the tool. Any changes to the data models at the source or target automatically rewri te the [redacted] process to move data between source and target.

( third brackets in original). If there was the possibility that the Agency could erroneously think protestor was relying on [redacted] , it was the obligation of the offeror to make it that

clear that Harmonia would not be relying on [redacted] in its proposal

. See Structural Assocs., Inc./Comfort Sys. USA (Syracuse) Joint Venture v. United States , 89 Fed. Cl. 735, 744 (2009) (citing CACI Te chs., Inc. , B296946, 2005 CPD ¶ 198 at 5, 2005 WL

3143443 at *3 (Comp. Gen. Oct. 27, 2005) (“[A]n offeror has the responsibility to submit

a well

- written proposal with adequately detailed information that allows for a meaningful review by the procuring agen cy.”). As noted by the Structural Associates court, “[p] laintiff's failure to provide more detailed information is chargeable to it alone.” Id. 15 I t was not unreasonable for the Agency to be concerned if [redacted] was compatible with existing
Census Bureau systems, which “could create significant integration is sues leading to an increase of costs, lost development time, and schedule delays.” To demand that the Agency evaluate protestor’s technical proposal as if it did not plan on using [redacted] is

to sec ond guess the Agency’s technical evaluation process, whi ch the court should not
do so

. See E.W. Bliss Co. v. United States , 77 F.3d at 449 ( citing Lockheed Missiles & Space Co. v. Bentsen , 4 F.3d at 958 ) . Therefore, p rotestor has not demonstrated that the

either of the Agency ’s technical evaluations and assign me nt of the two risks to Harmonia’s technical proposal were arbitrary or capricious.

Regarding Count 3, protestor alleges “[t] he Solicitation stated that the Agency would not choose a higher

- priced offeror’s proposal u nless it presented material technical advantages over other proposals . What it did was worse.” Protestor claims that “[i]f Factor 1 was the determining factor, then Harmonia should have won award, particularly as it proposed a lower price than Alethix. The Agency acted irrationally w hen it made award

to a lower

- rated, more

- expensive offeror contrary to the Solicitation’s terms.” As repeatedly noted above, “ [c]ontracting officers ‘are entitled to exercise discretion upon a broad range of issues confronting t hem in the procurement proce ss,’” PAI Corp. v. United

15 As noted above, protestor was also awarded a strength for relying on [redacted] in its technical proposal, with the Technical Evaluation Team determining: “ The offeror proposes the introduction of [redacted] . This is significant because this would create efficiencies in the development cycle that will save time and, potentially, money allowing developers to be more effi cient. ” The court further notes that protestor does not object to be awarded a strength for the use of [redacted]

.38

States , 614 F.3d at 1351 (quoting Impresa Construzioni Geom. Domenico Garufi v.
United States , 238 F.3d at 1332), and “[a]ccordingly, procurement decisions are subject to a ‘highly deferential rational basis review.’” Id. (quoting CHE Consulting, Inc. v. United
States , 552 F.3d at 1354 (Fed. Cir. 2008) (internal quotation marks omitted).

The United States Court of Appeals for the Federal Circuit has explained that procurement officials have an even gre ater degree of discretion wh en it comes to best

value determinations, as compared to deciding on price alone. See Galen Med. Assocs.,
Inc. v. United States , 369 F.3d at 1330 (noting that because “the contract was to be awarded based on ‘best value,’ the co ntracting officer had even g reater discretion than if the contract were to have been awarded on the basis of cost alone”); see also CHE Consulting, Inc. v. United States , 552 F.3d at 1354 (citing E.W. Bliss Co. v. United States

, 77 F.3d at 449); Banknote C orp. of Am. Inc. v. United States , 365 F.3d at 1355 (“It is well

established that contracting officers have a great deal of discretion in making contract award decisions, particularly when, as here, the contract is to be awarded to the bidder

or bidders th at will provide the agency with the best value.” (citing TRW, Inc. v. Unisys Corp. , 98 F.3d 1325, 1327

- 28 (Fed. Cir. 1996))); Am. Tel. & Tel. Co. v. United States , 307 F.3d at 1379; E.W. Bliss Co. v. United States

, 77 F.3d at 449 (“Procurement officials ha ve substantial discr etion to determine which proposal represents the best value for the government.”); Sys. Studies & Simulation, Inc. v. United States

, 146 Fed. Cl. at 199; Citizant, Inc. v. United States , 142 Fed. Cl. 260, 268

- 69 (2019); North South Cons ulting Grp., LLC v. United States , 141 Fed. Cl. at 554 (“The protestor’s burden is especially heavy in negotiated, best value procurements.”); Optimization Consulting, Inc. v. United
States , 115 Fed. Cl. 78, 89 (2013); Amazon Web Servs., Inc. v. United Sta tes , 113 Fed.
Cl. 102, 110 (2013) (“Contracting officers are afforded ‘an even greater degree of discretion when the award is determined based on the best value to the agency.’” (quoting Galen Med. Assocs., Inc. v. United States , 369 F.3d at 1330)); Akal S ec., Inc. v. Unite d
States , 103 Fed. Cl. 310, 329 (2011) (“The United States Court of Appeals for the Federal Circuit has recognized that ‘[p]rocurement officials have substantial discretion to determine which proposal represents the best value for the gov ernment.’” (quotin g E.W.
Bliss Co. v. United States , 77 F.3d at 449)); Blackwater Lodge & Training Ctr., Inc. v.
United States , 86 Fed. Cl. 488, 514 (2009).

When the contracting officer’s discretion grows, so does the burden on the protestor. As noted i n D & S Consultant s, Inc. v. United States :

The protestor’s burden becomes more difficult the greater the degree of discretion vested in the contracting officer. DynCorp Int’l v. United States

, 76 Fed. Cl. 528, 537 (2007). Negotiated procurements afford t he contracting

off icer a “breadth of discretion;” “best

- value” awards afford the contracting

officer additional discretion. Id. Therefore, in a negotiated, best

- value procurement, the “protestor’s burden is especially heavy.” Id.

D & S Consultants, Inc. v. United States , 101 Fed. Cl. 23, 33 (2011), aff’d , 484 F. App’x 558 (Fed. Cir. 2012); see also Galen Med. Assocs., Inc. v. United States , 369 F.3d at 1330 (noting that contracting officers have great discretion in negotiated procurements but even greater discretio n in best

- value determinations than in procurements based on39

cost alone); PHT Supply Corp. v. United States

, 71 Fed. Cl. 1, 11 (2006) (“It is critical to note that ‘a protestor’s burden is particularly great in negotiated procurements because

the contracti ng officer is entrusted with a relatively high degree of discretion, and greater still, where, as here, the procurement is a “best

- value” procurement.’” (citations omitted)).
“It is well

- established that contracting officers have a great deal of discretion in making contract award decisions, particularly when, as here, the contract is to be awarded to the bidder or bidders that will provide the agency with the best value.” Banknote Corp. of Am.
Inc. v. United States , 365 F.3d at 1355 (citing TRW, Inc. v. Un isys Corp. , 98 F.3d at 1327

- 28; E.W. Bliss Co. v. United States , 77 F.3d at 449; Lockheed Missiles & Space Co. v.

Bentsen , 4 F.3d at 958

– 59); see also Am. Tel. & Tel. Co. v. United States , 307 F.3d at 1379; Lockheed Missiles & Space Co. v. Bentse n , 4 F.3d at 958; Brooks Range Contract Servs., Inc. v. United States , 101 Fed. Cl. 699, 707 (2011) (“[A] plaintiff’s burden ‘is elevated where the solicitation contemplates award on a “best value” basis.’” (internal citations omitted)); Matt Martin Real E state Mgmt . LLC v. United States , 96 Fed. Cl. 106, 113 (2010); Serco v. United States , 81 Fed. Cl. 463, 496 (2008) (“To be sure, as noted at the outset, plaintiffs have a significant burden of showing error in that regard because a

court must accord consid erable def erence to an agency’s best

- value decision in trading off price with other factors.”).

Protestor concedes that “[c] ourts afford the government ‘ considerable deference ’

in a best

- value determination ,” (quoting Serco Inc. v. United States , 81 Fed. Cl. 463, 496 (2008))

, but argues that “[t]he Agency’s evaluation errors infected the source selection decision, rendering it irrational and contrary to the Solicitation’s terms.” Protestor argues that regarding its pending motion, “[f]irst, as shown in Se ction I, the contracting officer should have recognized the apparent ostensible subcontractor issues in Alethix’s proposal,” and “[a]s discussed in Section II, the Technical Evaluation Team assigned two irrational and unwarranted risks to Harmonia’s propos al in Factor 1.” Defendant argues that “Harmonia’s challenge to the best

- value determination largely rests on its meritless small business and technical evaluation arguments.” Intervenor contends that “Harmonia’s protest of the Agency’s best value determin ation hinges upon its challenges to Alethix’s small business size status and the Agency’s technical evaluation of Harmonia’s proposal. Because those underlying protest challenges fail, Harmonia’s challenge to the best value determination should also be den ied.” The court agrees with

intervenor

, having found the technical evaluation for Count 1 was not arbitrary or capricious, and having determined that Count 2 was an impermissible size protest, the
court does not believe errors “ infected ” the best value det ermin ation or the source

selection decision.

Relatedly , protestor argues that “[u]nder the terms of the Solicitation, ‘the Government will not make an award at a higher overall price to the Government to achieve slightly superior technical skills.’ Given the source selection authority’s decision to use Factor 1 as the discriminator, what the Agency did is make award to a weaker technical proposal at a higher price.” (emphasis in original; internal reference omitted)

. Despite protestor’s claims, the court notes that the Best Value Recommendation and Trade

- Off Analysis determined :40

Alethix provided a thorough technical proposal that demonstrated significant strengths presenting numerous benefits to the Government.

Alethix ’s technical proposal had no notable o r significant weaknesses or risks. Alethix’s technical approach demonstrated their capability to successfully perform the requirements and introduces innovative approaches, methods, and procedures that would benefit pr ograms across the USCB [United States Census Bureau ] for years to come.

The Best Value Recommendation and Trade

- Off Analysis noted that “[o]verall, Alethix proposed utilizing cutting edge, next generation technologies, developing [redacted] and deploying a [redacted] that could not only creat e efficiencies in our team performance, but improve quality and reduce costs for operations across the enterprise.”

The Best Value Recommendation and Trade

- Off Analysis also determined “[t] he Technical proposal present ed by Alethix warrants the higher over all task order price as

outlined above. ” Finally, the Best Value Recommendation and Trade

- Off Analysis

concluded:

Alethix’s technical proposal, based on the narrative in the TET consensus report, as well as Section 6

- Trade

- Off Analysis and Section 7

- B est Value Recommendation, was technically superior to the proposals submitted by other Offerors and had the highest price of $38,216,255.80 for the base and option periods. Comparing the relative strengths, weaknesses, and risks as

documented in the TET co nsensus report, Alethix’s proposal possessed the highest quality strengths in the technical proposal, without any notable or significant weaknesses and risks. In conclusion, Alethix’s proposal provides

the Best Value t o the Government. With price and other factors considered, it is the PET and TET’s recommendation that Alethix’s proposal is the best value for the Government in comparison to all the other Offerors. Alethix is recommended for award at a total estimated pr ice of $38,216,255.80 for the

base and option periods. Alethix proposed a technically superior approach to meeting task order requirements that will provide innovation and price
benefit to the Government.

Likewise, the Award Decision Memorandum concluded

, in the section titled “Award

Determin ation : ”

Alethix’s technical proposal

, based on the narrative in the TET consensus report, as well as Section 6

- Trade

- Off Analysis , an d Section 7

- Best Value Recommendation of the Best Value Recommendation document, was technically superior to the propos als submitted by other Offerors. Comparing the relative strengths

, weaknesses, and risks as documented in the TET consensus report

, Alethix ’ s proposal possessed the highest quality strengths in the technical proposal

, without any notable or significant

wea knesses and risks. In conclusion, Alethix's proposal provides the Best
Value to the Govern m ent. With price and other factors considered. it is the Contracting O ff icer's determination

, Dijon Ferdinand, [sic] that Alethi x ’ s41

proposal is the best value for the Government in comparison to all the other Offerors. The Contracting Officer, Dijon Ferdinand

, has determined award

to Alethix

, LLC at a total estimated price of $38,216,255.80 for the base and option periods is in the best interest to the Government. Alet hix proposed a technically superior approach to meeting task order requirements that will provide innovation and price benefit to the Government

.

The court does not find that the decision to award the task order to Alethix was arbitrary or capricious. Nor does the court find that the protestor has met its heavy burden to

convince the court otherwise. See E.W. Bliss Co. v. United States

, 77 F.3d at 4 49 ; Sys. Studies & Simulation, Inc. v. United States

, 146 Fed. Cl. at 199; Optimization Consulting,

Inc. v. U nited States , 115 Fed. Cl. at 89

.

CONCLUSION

As determined above, the defendant’s and intervenor’s motion to dismiss Count 2

is GRANTED

. A s a lso determined above, defendant’s and intervenor’s motion for judgment on the Administrative Record for C ount 1 and Count 3 are GRANTED

. Protestor’s motion for judgment on the Administrative Record is DENIED . Protestor’s protest is DISMISSED

. The Clerk of the Court shall enter JUDGMENT consistent with this Opinion.

IT IS SO ORDERED

.

s/Marian Blank Horn

MARIAN BLANK HORN

Judge