In the United States Court of Federal Claims

No. 19-1421C

Filed: April 3, 2020

Redacted Version Issued for Publication: April 26, 20201

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Post-Award; Bid Protest; Small 

Business Administration; 

Exhaustion; Technical Evaluation; 

Best Value Trade-Off.

HARMONIA HOLDINGS GROUP, 

LLC,

 Protestor,

v.

UNITED STATES,

 Defendant,

v.

ALETHIX, LLC,

 Defendant-Intervenor.

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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, Commercial Litigation 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, Attorney, 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. Words which are 

redacted are reflected with the notation: “[redacted].”
2

O P I N I O N

HORN, J.

Protestor, Harmonia Holdings 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, Applications 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 indicated:

The 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 the 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 

enable staff to develop, process, and maintain 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 Division

“specializes in the design, development, 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 System 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 over 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:

The Enterprise 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 their field data collection operations. The

Enterprise Reporting System for economic surveys tracks the daily checkin data against progress goals and serves as the internet paradata 

repository. 

The RFQ explained 

[t]he purpose of this task order is to procure 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 reports as part 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 system 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 other activities on a daily basis.

The RFQ made clear “[t]his is a notice that this order is a total set aside for womenowned small businesses. Only quotes submitted by women-owned small businesses will 

be accepted by the Government. Any quote that is submitted 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 System 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 businesses the Agency believed were capable of performing the 

task order: Protestor Harmonia, [redacted] and [redacted]. Subsequently, [redacted] 

contacted the contract specialist that it was no “longer be eligible to participate in the 

competition of this acquisition.” In addition, on June 6, 2019, intervenor Alethix express 

interest in “participating 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 was 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, the Agency stated that it “intends to issue a Time and Materials task 

order under the General Service Administration’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 includes a one-year base period 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 52.217-8,4the 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 performance 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 

once, but the total extension of performance hereunder shall not exceed 6 

months. The Contracting Officer may exercise the option by written 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 Experience 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 determination of best value. The rated technical evaluation criteria are 

significantly 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 which 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 innovation of the approach, methods, 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: 

The information presented in the Offeror’s proposal together with 

information from any other sources available to the Government will provide 

the primary input for 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 

personnel.

For the Management factor, the offeror’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 Government’s evaluation of Factor 3: 

Management will consider the strengths, 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 Government 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]easonableness 
6

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 prices with 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 best 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 

accomplished by comparing the value of the differences in the technical

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 concerned with obtaining superior 

technical and management capabilities 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 explained 

[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 member 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 Price Evaluation Team.

The 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 the 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 significant 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 to successfully 

perform the requirements as well 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 the likelihood of 

successfully 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 improve quality, and increase 

efficiencies/team performance.” The narrative summary also noted:

The offeror proposes a strong subcontracting partnership [redacted]. This 

greatly minimizes the impact of transition and maintains knowledge of 

Enterprise Reporting 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 Award Decision Memorandum summarized the Technical Evaluation Team’s 

analysis of 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 numerous benefits to the Government. Alethix’s 

technical proposal had no notable or significant weakness or risks. The 

offeror’s technical approach demonstrated Alethix’s capability to 

successfully perform the requirements as well 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 the 
8

likelihood of successfully meeting the requirements. 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 for Factor 2, the Key Personnel factor, 

Harmonia’s technical proposal received 1 strength, 0 weakness and 0 risks. For the 

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: “The 

TET ranked Harmonia #2 for their 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.” The narrative summary for Factor 1 

stated:

For Factor 1, the offeror proposed utilizing cutting edge, next generation 

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 offeror 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 development or a 

mismanagement of Census Operations.

The Technical 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, Section 

2.A3. The offeror’s proposal shows they are ISO 9001:2015 and CMMI 

Level 3 certified. This is significant because it would ensure quality 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 

requirements. This is significant because it would result in better quality 

assurance for the government.

4. Technical approach – 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 because this would 

provide a level of transparency and accountability that would allow the 

Government to more effectively manage resources across the team. This 

creates transparency in the development process, improving ADSD’s

[Applications Development and Services 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 development 

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 on 

individuals and make the overall team (Government and Contractor) more 

efficient in responding to inquiries and issues.

7. Technical approach – RFP C.3.1/Proposal Page 2-7, Section 2.2.1.

The offeror proposes the introduction of a [redacted] into the Enterprise 

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 data

• 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, money 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 is 
10

significant because this would create consistent requirements gathering, 

improving software quality.

(emphasis in original).

The Technical Evaluation Team indicated there were no weaknesses for Factor 1 for 

Harmonia’s proposal, and with 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 Services 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 introduction 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 of [redacted] technical proposal, noting, “[t]he offeror presented a technical 

approach which provides experience with [redacted] and received outstanding ratings for 

two of the past performances 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 the Management factor, Factor 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 strengths, 1 weakness, and 0 risks. The Technical 

Evaluation Team’s narrative summary for [redacted] stated: “The TET ranked [redacted] 

#3 for their technical proposal. The offeror presented a technical approach which provides 
11

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

Offeror 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 Attached J.4 price proposal worksheet, used the 

governments estimated amount of hours for each contract role and mapped 

all contract role to the each Offerors 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 

established General Services Administration price schedules, and by 

comparing total bid prices with the Independent Government Cost Estimate 

(IGCE). The Price team had the following findings regarding price

reasonableness:

• Per FAR Part 8.405-1(d)(3)(ii), for proposed orders exceeding 

the simplified acquisition 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 

performances provided.”
12

research appropriate to the circumstances, to reasonably 

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 Schedule 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 date, Alethix, [redacted], and 

Harmonia Holdings submitted 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 examined 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 Proposed Price

Vendor Total 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 which 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 Order 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 for the work 

to be performed.

 

6

“LCAT” appears to refer to labor categories. 
13

In summary, 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 received 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 reasonable. This determination is based on 

the 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 discounts 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 demonstrated 

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 requirements 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-Off Analysis noted that “[o]verall, 

Alethix proposed utilizing 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 Analysis 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 [redacted]. 

Harmonia Holdings Group, LLC’s proposal included 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 capabilities, as well as development cycle 

efficiencies. Alethix presented significant strengths that go beyond the 

approaches and present greater benefits to the USCB than the technical 

strengths submitted by [redacted] and Harmonia Holdings Group, 
14

[redacted]. Alethix offers knowledge of the current Enterprise Reporting 

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 report 

building, software system design, requirement analysis, code migration, 

and failure identification. Furthermore, Alethix has the ability to significantly 

reduce the transition-in period due to [redacted]. Overall, Alethix proposed 

numerous innovations to improve efficiencies and successfully meet the 

requirements. [redacted] and Harmonia Holdings Group are unable to 

match these significant strengths and correlating benefits to the USCB. 

Thus, Alethix’s proposal justifies 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-Off Analysis determined:

Alethix’s price proposal was the third lowest 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 strengths 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 even though Alethix’s 

overall price is $1,047,352.57 higher than Harmonia Holdings Group and 

$[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 Government’s estimate. The Technical proposal 

presented by Alethix warrants the higher overall 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 - 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 

option periods. 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 weaknesses and risks. In conclusion, Alethix’s proposal provides 

the Best Value to the Government. With price and other 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 $38,216,255.80 for the base and option periods. Alethix proposed 
15

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 and 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 to the Government would be 

achieved by awarding to Alethix, LLC at a total task order value of 

$38.216,255.80. In conjunction with his own independent judgemnet [sic], 

the Contracting Officer, Dijon Ferdinand, took into consideration the Best 

Value Recommendation presented by the 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 well as Section 6 - Trade-Off Analysis , and Section 7 - Best Value 

Recommendation of the Best Value Recommendation document, was 

technically superior to the proposals 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 

weaknesses and risks. In conclusion, Alethix’s proposal provides the Best 

Value to the Government. With price and other factors considered, it is the 

Contracting Officer’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 

provide 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. Subsequently, 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 Agency 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 Technical Evaluation Team’s analysis :

There were some weaknesses/risks identified 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 ADSD 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 [redacted] 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 

complaint8 sets forth three counts, which relate to specific 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 

Agency assigned Harmonia a risk for proposing that it would cross-train its staff and peertest 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 situations, turnover 

situations, and during employee leave,” 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 

the 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 version of the 

complaint in compliance with the court’s Rules. Protestor subsequently filed a corrected 

complaint. Subsequently, protestor filed an amended complaint. Unless otherwise 

indicated, the court refers to protestor’s amended complaint in this Opinion.
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 arbitrary and irrational evaluation.” 

In Count 2 of the amended complaint, 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 irrational 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 subcontractor, 

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-priced offeror’s proposal unless 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 

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 recognized the ostensible subcontractor issue in Alethix’s proposals, and required 

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 

independent review should have revealed the irrational risks assigned to Harmonia’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 Administration (SBA) for a Status Determination. Intervenor claims that “[t]his 

court does 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 filed by plaintiff, Harmonia Holdings Group, LLC (Harmonia), because Harmonia 

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 court should reject Harmonia’s challenge to the assignment of two risks to 

its technical proposal,” 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.” 

DISCUSSION

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 administrative 

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 that 
18

[redacted] was an ostensible subcontractor, triggering his duty to refer 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, 

intervenor 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.

“The doctrine of exhaustion of administrative remedies is one among related 

doctrines—including abstention, finality, and ripeness—that govern the timing of federalcourt 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 Corp., 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 until the prescribed administrative 

remedy has been exhausted.”); Burlington N. R.R. Co. v. United States, 752 F.2d 627, 

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 is 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 instance. 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; see 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 described 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 Congress 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 agency 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 programs 
19

it administers before it is hauled into federal court,’ and it discourages ‘disregard of [the 

agency's] procedures.’” Woodford 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 1243, 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 

general 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.3d 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 encouraging disregard of its procedures.” (quoting McKart v. United States, 395 U.S. 

at 195)).

The second purpose for requiring exhaustion of administrative remedies 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 parties to seek aid from the courts at 

various intermediate stages.” McKart v. United States, 395 U.S. at 194; see also Palladian 

Partners, Inc. v. United States, 783 F.3d at 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 settled at the administrative level, and in 

others, the proceedings before the agency 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 mooted, 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 and 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 459; 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 proceedings.” 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 must satisfy to properly exhaust administrative 

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 States, 93 Fed. Cl. 465, 473 (2010). “The fact that the 

administrative remedy was provided by a regulation rather than by a statute does not 
20

make the exhaustion doctrine inapplicable or inappropriate.” Sandvik Steel Co. v. United 

States, 164 F.3d at 600; see also Itochu Bldg. Products v. United 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 States, 502 F.3d 1370, 1379 (Fed. Cir. 2007) (“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 case, 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 case.”). “‘[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 doctrine 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, 529 U.S. 1095 (2000) (“Doctrines 

of ‘ripeness' 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). The Federal Circuit also has indicated that 

“[t]he futility exception to the exhaustion requirement has been applied in situations in 

which enforcing the exhaustion requirement 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 omitted). The 

Federal Circuit has explained, 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 generally 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 Classification System (NAICS) code specified in a 

solicitation, which is to be designated 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 size 

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 written protest by other 

offerors or other credible information which causes the 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 formal 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 determination 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 also 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 

determination 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 Office'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 decision 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 and 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 Government 

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 determination may 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 appeal 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 

receiving 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 awards the contract 

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 Fed. Cl. at 9-10 (footnotes 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 filed a size protest with the contracting 

officer. See id. at 10. The International Management court indicated 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 SBA's dismissal to the OHA.” Id. (internal reference 

omitted). The Judge concluded that:

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, “Small Business 

Size Regulations,” which includes specific procedures that must be followed 

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 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 or Torres that 

would apply to this contract.

Int’l Mgmt. Servs., Inc. v. United States, 80 Fed. Cl. at 10-11. 

There is no evidence in the record before the court that Harmonia made a size 

protest with the contracting officer, or any action was taken before the SBA. Harmonia 

also does not allege that it made a size protest during 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 size 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 ostensible

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 the 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 Effort,” and “[b]y ignoring the 

substantial red flags in Alethix’s proposal, the Agency acted irrationally.” 

Despite protestor’s protestations to the contrary, claiming that “Harmonia does not 

ask the Court to overturn an SBA size determination: 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:

Appeals from formal 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 determination to OHA 

are set forth in part 134 of this chapter. 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; see 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 may 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 protest 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 Protestor 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 contracting 
24

 

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 new size certification in 

connection with that order.

(2) Negotiated procurement (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 contracting 

officer prior to the close of business on the 5th day, exclusive of Saturdays, 

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 existing long-term contracts, Multiagency contracts, Governmentwide Acquisition Contracts and Multiple 

Award Contracts:

(i) Protests regarding size certifications made for contracts 

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 via electronic posting) of the 

identity of the prospective awardee or award.

(ii) Protests regarding size certifications 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 via 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 SBA 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, protestor cites to International Management Services, 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 quoted above, however, the Judge in 

International 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, “Small Business 

Size Regulations,” which includes specific procedures that must be followed 

to protest SBA size determinations and details the consequences of not 

 

(B) [Reserved]

(iii) Protests relating to size certifications 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 holidays, 

after receipt of notice (including notice received in writing, 

orally, or via electronic posting) of the identity of the 

prospective awardee or award.

(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 fifth day, exclusive of Saturdays, Sundays, and 

legal holidays, after the electronic posting.

(5) No notice 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 written notification of award, the 5–day protest period will 

commence upon oral notification by the contracting officer or authorized 

representative or another means (such as public announcements or other 

oral communications) of the identity of the apparent successful 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 or Torres that 

would apply to this contract.

Int’l Mgmt. Servs., Inc. v. United States, 80 Fed. Cl. at 10-11. 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 regulation,” 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 court 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 for 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 facts, 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 1346, 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. 519, 

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. United 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 administrative 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 Impresa 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 immunity for claims against the United States in bid protests). 

The statute provides that protests of agency procurement decisions are to be reviewed 
27

under APA standards, making applicable the standards outlined in Scanwell Labs., Inc. 

v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), 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) 

(“Protests 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 of 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 that 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. 2004) (“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 cases, 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 subsection (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 1350-51 (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 they are “arbitrary, capricious, an 

abuse of discretion, or otherwise not 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 801, 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. United States, 783 F.3d 1243, 1252 (Fed. Cir. 2015)); 

Tinton Falls Lodging 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 according 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); Axiom Res. Mgmt., Inc. v. United States, 564 F.3d at 1381 (noting arbitrary and 

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 Fleet, 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. United 

States, 404 F.3d at 1351 (quoting 5 U.S.C. § 706(2)(A) (2000)))); NVT 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 conclusions 

found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C)in excess of statutory jurisdiction, authority, or limitations, or short 

of statutory right;

(D)without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject 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 facts to the extent that the facts are subject 

to trial de novo by the reviewing court.

In making the foregoing determinations, 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 prejudicial error.

5 U.S.C. § 706.
29

v. United States, 316 F.3d at 1319 (“Consequently, 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, 734 (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. United States, 104 Fed. Cl. 334, 340 (2012). “In a bid protest 

case, the agency’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), 

reh’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 

protests, 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 (Fed. 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 agency 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 basis 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 agency action:

[W]e will not vacate an agency’s decision unless it “has relied 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 counter to the evidence before the agency, or is so implausible 

that it could not 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

also 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.-

Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009), reh’g and reh’g en

banc 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 . . . .”); Textron, 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 arbitrary or capricious standard, the reviewing court should not substitute 

its judgment for 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 

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

review 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. United 

States, 906 F.3d 982, 990 (Fed. Cir. 2018); Turner Constr. Co., Inc. v. United States, 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 Impresa 

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 conclusion 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. Seamans, 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 States, 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); Vanguard Recovery Assistance v. United 

States, 101 Fed. Cl. 765, 780 (2011).

Stated otherwise 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 otherwise 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 

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

court is not empowered 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), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977); see

also U.S. Postal Serv. 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 discussing the “arbitrary, capricious, and abuse of discretion, or otherwise not in 

accordance with the law” standard, the Federal Circuit stated: “the ultimate standard of 

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

the 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 here 

is highly deferential. This standard requires a reviewing court to sustain an agency action 

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 & Simulation, 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 substitute 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 reasonable explanation of its exercise of 

discretion.’” (internal citations omitted) (quoting Keeton 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 of 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). Accordingly, agencies “are entrusted with a good 

deal of discretion in determining which bid is the most advantageous to the 

Government.” Tidewater Management Servs., 573 F.2d at 73, 216 Ct. Cl. 

69.

Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d at 958-59; see 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 States 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. United 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 States Court of Appeals for the Federal Circuit:

Contracting officers “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, 

1332 (Fed. Cir. 2001) (internal quotation marks omitted). Accordingly, 

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 omitted). 
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 reasonable 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 process.’” (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 1354 (quoting Advanced Data Concepts, 

Inc. v. United States, 216 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 Realty, 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; 

Contracting, Consulting, Eng’g LLC v. United States, 104 Fed. Cl. at 340. The Federal 

Circuit 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, 1300 (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 APA 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 in 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, an 
33

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

chance it would have received the contract award but for that error.” 

Statistica, 102 F.3d at 1582; see CACI, Inc.-Fed. v. United States, 719 F.2d 

1567, 1574-75 (Fed. Cir. 1983) (to establish competitive prejudice, protester 

must demonstrate that but for the alleged error, “‘there was a substantial 

chance that [it] would receive an award--that it was within the zone of active 

consideration.’” (citation omitted)).

Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir.), reh’g denied

(Fed. 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 Mobile 

Networks USA, LLC v. United States, 213 F.3d 1375, 1380 (Fed. Cir. 2000). 

With regard to Count 1, in addition to the above cited deference owed to the 

Agency in a bid protest, “[t]he court gives great deference to an agency’s technical 

evaluation of an 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 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); 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 heightened for cases 

involving 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 assignment 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 of 
34

non-performance, and both enhance the chance of successful performance.” (emphasis

in original). Second, protestor argues that “[i]t was irrational to assign Harmonia a risk for 

proposing the use of [redacted].” Defendant responds that “Harmonia’s challenge to the 

assignment of two risks to its technical proposal” should be rejected because “it amounts 

to mere disagreement with the technical evaluation.” Intervenor, similarly, argues that 

“[t]he Agency’s assignment of risk for Harmonia’s proposed cross-training and peer 

testing was reasonable.” 

As noted above, the Technical 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 Development and Services Division] monitors contractor 

performance and tasking to maintain cost controls.

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 

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).

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 inquiries 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 

behavior.” Protestor also claims that “it appears that the Agency misread or 

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 evaluation

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 addition, it appears 
35

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 eliminate single 

points of failure/dependencies on individuals and make the overall 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 Agency’s approach to crosstraining was consistent among the proposals, as the awardee was awarded a strength, 

and a weakness for proposing cross-training. For Alethix’s proposal the Technical 

Evaluation Team indicated as a strength for Factor 1:

Management Approach – 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 provide support during 

times of staffing transitions.

(emphasis 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 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 

monitors contractor performance and tasking to maintain cost controls.

(emphasis in original). Furthermore, as noted above, technical 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 (Fed. 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 Technical 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 

evaluator identified Avue’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 

Integrated Staffing, Recruitment 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 flawless 
36

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 have conducted the procurement more in accord with the agency's acquisition 

plan.” Id. at 24. Disagreement with the Agency’s evaluation, 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 contentions remain insufficient to persuade 

the Court that the BOP acted unreasonably. See JWK 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 product 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 agency's 

judgment, without more, is insufficient 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 arbitrary 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 decisionmaking process.

Regarding 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 

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.” Protestor argues that “Harmonia 

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 protestor’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. [redacted] 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 protest 

brought by protestor regarding a pre-award protest for a solicitation issued by the United 

States Customs and Border Protection. See generally 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 

[redacted] 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 rewrite 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 Techs., 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 agency.”). As noted by the Structural Associates court, “[p]laintiff's 

failure to provide more detailed information is chargeable to it alone.” Id.15 It was not 

unreasonable for the Agency to be concerned if [redacted] was compatible with existing 

Census Bureau systems, which “could create significant integration issues 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 second guess the Agency’s technical evaluation process, which 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, protestor has not demonstrated that the 

either of the Agency’s technical evaluations and assignment 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 unless 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 when 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 them in the procurement process,’” 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 efficient.” 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 greater degree of discretion when it comes to bestvalue 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 contracting officer had even greater 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 Corp. of Am. Inc. v. United States, 365 F.3d at 1355 (“It is wellestablished 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.” (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 have 

substantial discretion 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 Consulting 

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 States, 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 Sec., Inc. v. United 

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 government.’” (quoting 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 in D & S Consultants, 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 the contracting 

officer 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 discretion in best-value determinations than in procurements based on 
39

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 contracting 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. Unisys 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. Bentsen, 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 Estate 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 considerable deference 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 Section 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 proposal 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 determination 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 denied.” 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 determination 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 or 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 programs 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 create 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 presented by Alethix warrants the higher overall 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 - 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 

option periods. 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 weaknesses and risks. In conclusion, Alethix’s proposal provides 

the Best Value to 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 price 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 

Determination:”

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 of the Best Value Recommendation document, was 

technically superior to the proposals 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 

weaknesses and risks. In conclusion, Alethix's proposal provides the Best 

Value to the Government. With price and other factors considered. it is the 

Contracting Officer's determination, Dijon Ferdinand, [sic] that Alethix’s 
41

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 

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 449; Sys. 

Studies & Simulation, Inc. v. United States, 146 Fed. Cl. at 199; Optimization Consulting, 

Inc. v. United States, 115 Fed. Cl. at 89.

CONCLUSION

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

is GRANTED. As also determined above, defendant’s and intervenor’s motion for 

judgment on the Administrative Record for Count 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