In the United States Court of Federal Claims 

No. 15-949 

Filed: November 30, 20151

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FP-FAA SEATTLE, LLC, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant, *

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and *

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DES MOINES CREEK BUSINESS *

PARK PHASE II, LLC, *

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Defendant-Intervenor. *

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William M. Jack, Kelley Drye and Warren LLP, Washington, D.C., Counsel for the Plaintiff. 

Robert Mark Norway, United States Department of Justice, Civil Division, Washington, D.C., 

Counsel for the Government.

Richard J. Conway, Dickstein Shapiro, LLP, Washington, D.C., Counsel for DefendantIntervenor. 

MEMORANDUM OPINION AND FINAL ORDER

BRADEN, Judge. 

1

 On November 18, 2015, the court forwarded a sealed copy of this Memorandum 

Opinion And Final Order to the parties to delete any confidential and/or privileged information 

from the public version, and note any citation or editorial errors requiring correction. 

Administrative Procedures Act 

(“APA”), 5 U.S.C. § 706;

Bid Protest Jurisdiction, 28 U.S.C. § 

1491;

Competition In Contracting Act,

31 U.S.C. § 3551;

General Services Administration

Regulation,

48 C.F.R. § 570.306(a), 

Evaluating Offers,

48 C.F.R. § 570.303-4(a), 

Changes to Solicitations For 

Offers;

Interested Party

28 U.S.C. § 1491(b)(1);

Rules of the United States Court of 

Federal Claims (“RCFC”)

RCFC 57, Declaratory Judgment,

RCFC 52.1, Administrative 

Record.
2

I. RELEVANT FACTUAL BACKGROUND.2

A. Solicitation No. 3WA0392.

On August 1, 2014, the United States General Services Administration (“GSA”) issued a 

Request For Lease Proposals No. 3WA0392 (“RLP”) to provide office space for the United 

States Federal Aviation Administration (“FAA”) within a 10 mile radius of 1601 Lind Avenue, 

S.W., Renton, Washington. AR Tab 4, at 59–60; see also AR Tab 19, at 2773. 

FP-FAA Seattle, LLC (“FP-FAA”), the plaintiff in this case, currently leases the office 

space to FAA. AR Tab 8, at 1064. The RLP requires that the new FAA office space provides “a 

maximum of 300,000 rentable square feet (RSF) of space [from] a minimum of 259,500 to

262,100 of American National Standards Institute/Building Owners and Managers Association 

(ANSI/BOMA) Office Area (ABOA) square feet (SF) [collectively, “ABOA SF”].”3 AR Tab 4, 

at 59. 

The RLP also requires that offerors “demonstrate that the Government’s leased premises 

can be 100% occupied by August 1, 2017.” AR Tab 4, at 82. 

Initial lease proposals were due by October 3, 2014. AR Tab 4, at 70. 

The August 1, 2014 RLP is a “best-value tradeoff” procurement. AR Tab 4, at 77 (“The 

best value tradeoff process permits tradeoffs among price and technical factors, allowing the 

Government to make an award to other than the lowest priced offeror or other than the highest 

technically rated Offeror.”). But, the RLP also required that offerors submit proposals that 

addressed both pricing and technical factors. AR Tab 4, at 78. In addition, Offerors were 

required to submit one proposal in two separate volumes: Volume 1—Technical; and Volume 

2—Pricing. AR Tab 4, at 78.

The award factors for the technical volume of the proposals are listed here in descending 

order of importance: 

1. Site Layout and Security; 

2. Quality of Location; 

3. Proposed Design Approach and Technical Quality; 

4. Project Management Plan; and 

5. Past Performance of Relevant Experience 

 

2

 The facts discussed herein were derived from the September 11, 2015 Administrative 

Record (“AR Tabs 1–103,” comprised of pages 1–3796).

3

 ABOA SF differs from Rentable Square Feet in that ABOA SF is “the area where a 

tenant normally houses personnel and/or furniture[.]” AR Tab 4, at 100. Rentable Square Feet is 

the “area for which a tenant is charged rent[.]” AR Tab 4, at 100. Rentable Square Feet is based 

on and calculated from ABOA SF. AR Tab 4, at 100 (“Rentable Square Feet is calculated using 

the following formula for each type of Space (e.g., office, warehouse, etc.) included in the 

Premises: ABOA SF of Space x (1 + [Common Area Factor]) = RSF.”). 
3

AR Tab 4, 77–78. 

The RLP required Volume 2 to include the price proposal for the project, including shell 

rent, real estate taxes, amortization of the tenant improvement allowance, operating services, and 

any other concessions such as free rent. AR Tab 4, at 78. But, the technical award factors were 

deemed to be “slightly more important than price.” AR Tab 4, at 77.

After the Lease Contracting Officer reviewed the technical and price volumes of the 

proposals, it was delegated the responsibility to determine which offers should be included in the 

“competitive range.” AR Tab 4, at 78. Next, the Lease Contracting Officer was required to 

negotiate with offerors in the competitive range. AR Tab 4, at 78. After evaluations, 

discussions, negotiations apprising offerors as to any weaknesses in their proposals and 

providing a reasonable determination about corrections, the Lease Contracting Officer would 

request final proposals from the offerors. AR Tab 4, at 78. The Source Selection Evaluation 

Board then would evaluate the final proposals and recommend “the proposal that represents the 

best value to the Government considering technical evaluation factors and price” to the Source 

Selection Authority. AR Tab 4, at 78. 

B. The Proposals. 

On October 3, 2014, nine timely proposals were submitted: 

1. FP-FAA Seattle, LLC; 

2. Des Moines Creek Business Park Phase II, LLC;4

3. [REDACTED]; 

4. [REDACTED]; 

5. [REDACTED]; 

6. [REDACTED]; 

7. [REDACTED]; 

8. [REDACTED]; and 

9. [REDACTED]. 

AR Tab 19, at 2776–77. 

On November 13, 2014, after receiving the offers from the Lease Contracting Officer, the 

Source Selection Evaluation Board convened and reached a consensus on the technical 

proposals. AR Tab 19, at 2778. Pricing was not considered. AR Tab 19, at 2778, 2796. Based 

on the technical evaluations, the Source Selection Evaluation Board recommended 

[REDACTED], Des Moines, and [REDACTED] to be included in the competitive range. AR 

Tab 25, at 2908. 

On December 11, 2014, after considering the Source Selection Evaluation Board’s 

recommendations, the Lease Contracting Officer deemed four proposals to be in the competitive 

range—[REDACTED], Des Moines, [REDACTED], and FP-FAA. AR Tab 25, at 2908–09. 

 

4

 The Administrative Record refers to Des Moines Creek Business Park Phase II, LLC as 

“Panattoni Development Company, Inc.” or “Panattoni.” 
4

The offerors were invited to submit revisions to their Initial Proposal by January 9, 2015 and 

then, a Final Proposal by February 6, 2015. AR Tab 30, at 3033 (Dec. 19, 2014 e-mail from 

CBRE Group (“CBRE”), GSA’s broker, to Des Moines); AR Tab 15, at 2616 (Dec. 19, 2014 email from CBRE, GSA’s broker, to FP-FAA); Tab 25, at 2880 (April 28, 2015 Source Selection 

Decision describing the procurement). 

1. FP-FAA Seattle, LLC’s Proposals. 

a. The Initial Proposal. 

FP-FAA submitted a timely Initial Proposal on October 3, 2014. AR Tab 8, at 818. FPFAA’s Initial Proposal stated that it would fulfill the RLP’s requirements through “a phased 

addition and renovation of [the current office FAA occupies].” AR Tab 8, at 876. FP-FAA’s 

initial proposal received a rating of: “Very Good” for its Site Layout And Security; “Acceptable” 

for the Quality Of Location; “Very Good” for its Proposed Design Approach And Technical 

Quality; “Marginal” for its Project Management Plan; and “Marginal” for its Past Performance 

Of Relevant Experience. AR Tab 19, at 2781–82. The Source Selection Evaluation Board 

identified some risk with FP-FAA’s plans to renovate its proposed building site. AR Tab 19, at 

2781–82. Specifically, the Source Selection Evaluation Board stated that FP-FAA’s Initial 

Proposal did “not adequately address impact to [the] tenant occupying the building during major 

renovation[.]” AR Tab 19, at 2782. Overall, the Source Selection Evaluation Board gave FPFAA’s Initial Proposal a rating of “Adequate” with respect to its technical evaluation. AR Tab 

19, at 2796. 

b. The Final Proposal. 

FP-FAA timely submitted a Final Proposal on February 6, 2015. AR Tab 8, at 1898.1. 

FP-FAA’s Final Proposal received a rating of: “Very Good” for Site And Security; “Acceptable” 

for Quality Of Location; “Very Good” for Proposed Design Approach And Technical Quality; 

“Marginal” for Project Management Plan; and “Marginal” for Past Performance. AR Tab 25, at 

2955–57. The Board again expressed concern that FP-FAA did not provide a plan to address the 

“construction and disruption risk[.]” AR Tab 25, at 2956. Specifically, the Source Selection 

Evaluation Board noted that during a February 17, 2015 oral presentation of FP-FAA’s Final 

Proposal, FP-FAA stated that it “would need concessions from the government relative to the 

existing lease contract in order to deliver the space under the new lease . . . . [REDACTED].” 

AR Tab 25, at 2902. As such, the Board concluded that FP-FAA “did not adequately address 

risk to the successful completion of the new construction due to the existing building being 

occupied.” AR Tab 25, at 2905. 

Overall, FP-FAA’s Final Proposal ranked third with respect to its technical rating, 

receiving a technical score of 260.9. AR Tab 25, at 2885. FP-FAA’s Final Proposal had the 

lowest price. AR Tab 25, at 2886. Its overall rating was “Acceptable.” AR 2955. FP-FAA’s 

Final Proposal was considered one of the top two proposals. AR Tab 25, at 2887. 
5

2. Des Moines Creek Business Park Phase II, LLC’s Proposal. 

a. The Initial Proposal. 

Des Moines timely submitted its Initial Proposal on October 3, 2014. AR Tab 9, at 1899. 

Des Moines’ Initial Proposal received a rating of: “Very Good” for its Site Layout and Security; 

“Acceptable” for its Quality Of Location; “Very Good” for its Proposed Design Approach And 

Technical Quality; “Acceptable” for its Project Management Plan; and “Marginal” for its Past 

Performance of Relevant Experience. AR Tab 19, at 2787–88. GSA’s broker, CBRE, however, 

calculated that Des Moines’ Initial Proposal exceeded the RLP’s maximum ABOA SF 

requirement by 6.94%. AR Tab 30, at 3034. Overall, Des Moines’ Initial Proposal received a 

rating of “Very Good” from the Source Selection Evaluation Board. AR Tab 19, at 2787. 

b. The Final Proposal. 

Des Moines timely submitted a Final Proposal on February 6, 2015. AR Tab 9, at 2408. 

To address CBRE’s concern that Des Moines exceeded the maximum ABOA SF requirement,

Des Moines included an Area Reduction Tracking Summary, as well as computer-aided design 

(“CAD”) plans to demonstrate compliance with the RLP’s ABOA SF requirement. AR Tab 9, at 

2436–41. 

Des Moines’ Final Proposal received a rating of: “Excellent” for Site And Security; 

“Very Good” for Quality Of Location; “Very Good” for Proposed Design Approach And 

Technical Quality; “Acceptable” for Project Management Plan; and “Marginal” for Past 

Performance. AR Tab 25, at 2958–60. Des Moines’ Final Proposal received the second highest 

ranking with respect to pricing. AR Tab 25, at 2896. 

Overall, Des Moines’ Final Proposal ranked first, with respect to the technical evaluation, 

receiving a technical score of 335.3. AR Tab 25, at 2885. Des Moines’ Final Proposal had the 

second lowest price. AR Tab 25, at 2886. Des Moines’ Final Proposal also received a rating of 

“Very Good,” making it one of the top two proposals. AR Tab 25, at 2887, 2958. 

On February 12, 2015, however, CBRE determined that Des Moines’ Final Proposal

exceeded the maximum ABOA SF requirement by 8,936 SF. AR Tab 28, at 2988–90. Upon 

review, the Lease Contracting Officer determined that CBRE’s calculation was incorrect. AR 

Tab 83, at 3487. Specifically, the Lease Contracting Officer determined that “[CBRE’s 

calculation] centered around misplacement of polylines on each floor to assist in calculating the 

square footage, misunderstanding aspects of the space that may be part of an excluded area, and 

a misunderstanding of the Government’s calculation methodology to the standard.” AR Tab 83, 

at 3487. The Lease Contracting Officer concluded that “the difference between the 

measurements of space was not significant, that CBRE’s calculation could have been flawed, and 

that Des Moines, based upon their revised calculations and supporting documents did not offer 

any additional space outside the requirements of the RLP.” AR Tab 83, at 3487.
6

C. The Award.5

On April 28, 2015, the Source Selection Evaluation Board recommended awarding the 

lease to Des Moines. AR Tab 25, at 2906–07. In an April 29, 2015 letter, GSA informed FPFAA of its intent to award the lease to Des Moines. AR Tab 25, at 3515. 

II. RELEVANT PROCEDURAL HISTORY. 

A. Proceedings Before The Government Accountability Office.

On May 18, 2015, FP-FAA filed a protest with the United States Government 

Accountability Office (“GAO”). AR Tab 85, at 3492–3522. FP-FAA protested that, in deciding 

to award Des Moines the lease, GSA deviated from the stated evaluation criteria, failed to 

engage in meaningful discussions, evaluated proposals in a disparate manner, and unreasonably 

evaluated proposals. AR Tab 85, at 3499. 

On June 26, 2015, FP-FAA filed a supplemental protest, arguing that Des Moines’ Final 

Proposal did not conform to the RLP’s ABOA SF requirement. AR Tab 98, at 3647–72.

On July 2, 2015, the Lease Contracting Officer submitted to the GAO a supplemental 

Statement Of Fact, wherein he explained that “the difference between the measurements of space 

was not significant, that CBRE’s calculation could have been flawed, and that Des Moines, 

based upon their revised calculations and supporting documents did not offer any additional 

space outside the requirements of the RLP.” AR Tab 83, at 3487. 

On July 7, 2015, GSA filed an Agency Report. AR Tab 99, at 3673. On July 13, 2015, 

Des Moines filed Comments on the Agency Report as an intervenor. AR Tab 100, at 3706. 

On August 26, 2015, the GAO determined that GSA’s “evaluation was reasonable and 

consistent with the evaluation criteria, and that offerors were treated equally.” AR Tab 102, at 

3779. The GAO determined that Des Moines met the 262,100 ABOA SF requirement. AR Tab 

102, at 3787–88. Therefore, the GAO denied in part and dismissed in part FP-FAA’s protest. 

AR Tab 102, at 3790. 

B. Proceedings Before The United States Court Of Federal Claims. 

On August 31, 2015, FP-FAA filed a Complaint with the United States Court of Federal 

Claims under seal (“Compl.”). The Complaint alleged that GSA’s intent to award the contract to 

Des Moines was improper, because Des Moines’ proposal failed to adhere to the maximum 

allowable ABOA SF. Compl. ¶¶ 3, 28. In addition, the Complaint requested a temporary 

restraining order and preliminary injunction, requiring GSA to suspend the lease award to Des 

Moines. Compl. ¶ 51(1). The Complaint also requested a declaratory judgment pursuant to 28 

 

5

 Although this is a pre-award bid protest, this case resembles a post-award bid protest, 

because GSA made an award decision and then issued notice that it “intended” to award the 

contract to Des Moines. AR Tab 25, at 3515. 
7

U.S.C. § 2201 et seq.

6

and Rule 57 of the Rules of the Court of Federal Claims (“RCFC”),7

because GSA’s “award decision was unreasonable, arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law[.]” Compl. ¶ 51(2). The Complaint also requested a 

permanent injunction and either, the costs of pursuing this action, or bid preparation and proposal 

costs, pursuant to 28 U.S.C. § 1491(b)(2).8 Compl. ¶ 51(5). On that same day, FP-FAA also 

filed: a Proposed Redacted Document; a Motion For Temporary Restraining Order; a Motion For 

Preliminary Injunction; a Sealed Memorandum In Support Of Motion For Temporary 

Restraining Order And Motion For Preliminary Injunction; a Motion For Leave To File Under 

Seal The Memorandum And Complaint; a Motion For Protective Order; and a Disclosure 

Statement. 

 On September 1, 2015, the court held a telephone status conference. That same day, Des 

Moines filed an Unopposed Motion To Intervene. 

 On September 2, 2015, the Government filed a Response To FP-FAA’s August 31, 2015 

Motion For Protective Order. That same day, the court granted FP-FAA’s August 31, 2015 

Motion For Protective Order. 

 On September 3, 2015, the parties filed a Joint Notice Regarding Preliminary Injunctive 

Relief And Scheduling (“Joint Notice”). Therein, the Government agreed, at the court’s request, 

to withhold awarding the contract and signing the lease “until the earlier of November 30, 2015 

or the Court’s resolution of the parties’ cross-motions for judgment upon the administrative 

record.” Joint Notice at 1. Consequently, FP-FAA withdrew its August 31, 2015 Motion For 

Temporary Restraining Order and Motion For Preliminary Injunction. Joint Notice at 1. 

 

6 Section 2201 of the Declaratory Judgments Act, in relevant part, provides that: 

[A]ny court of the United States, upon the filing of an appropriate 

pleading, may declare the rights and other legal relations of any interested party 

seeking such declaration, whether or not further relief is or could be sought. Any 

such declaration shall have the force and effect of a final judgment or decree and 

shall be reviewable as such. 

28 U.S.C. § 2201. 

7

 RCFC 57, in relevant part, provides that, “[t]he existence of another adequate remedy 

does not preclude a declaratory judgment that is otherwise appropriate. The court may order a 

speedy hearing of a declaratory-judgment action.” RCFC 57. 

8

 Section 1491(b)(2) of the Tucker Act, in relevant part, provides, “the courts may award 

any relief that the court considers proper, including declaratory and injunctive relief except that 

any monetary relief shall be limited to bid preparation and proposal costs.” 28 U.S.C. § 

1491(b)(2). 
8

On September 9, 2015, the court entered: a Scheduling Order; an Order Withdrawing FPFAA’s August 31, 2015 Motion For Temporary Restraining Order And Motion For Preliminary 

Injunction; and an Order Granting Des Moines’ September 1, 2015 Motion To Intervene. 

On September 11, 2015, the Government filed the Administrative Record under seal. 

On September 18, 2015, under seal FP-FAA filed: an Amended Complaint (“Am. 

Compl.”); a Motion For Judgment On The Administrative Record (“Pl. Mot.”); and a 

Memorandum In Support Of Plaintiff’s Motion For Judgment On The Administrative Record 

(“Pl. Mem.”). The September 18, 2015 Amended Complaint alleged that, in accepting Des 

Moines’ Final Proposal, GSA had not complied with 48 C.F.R. § 570.3069 and 48 C.F.R. § 

570.303-4.10 Am. Compl. ¶ 42–45. The September 18, 2015 Amended Complaint also alleged 

that GSA’s decision was arbitrary and capricious. Am. Compl. ¶ 46.

On September 25, 2015, Des Moines filed under seal an Opposition To Plaintiff’s Motion 

for Judgment Upon The Administrative Record, Cross-Motion for Judgment Upon The 

Administrative Record, And Supporting Memorandum (“Int. Opp.”). That same day, the 

Government filed a Motion To Dismiss, Cross Motion For Judgment Upon The Administrative 

Record, and Response To FP-FAA’s Motion For Judgment On The Administrative Record 

(“Gov’t Mot.”) under seal.

On October 2, 2015, FP-FAA filed under seal a Response And Reply (“Pl. Resp.”) both 

to the Government’s Cross-Motion and Response and Des Moines’ Cross-Motion and Response.

On October 9, 2015, Des Moines filed under seal a Reply To FP-FAA’s October 2, 2015 

Response To Des Moines’ Cross Motion For Judgment Upon The Administrative Record (“Int. 

Reply”). That same day, under seal the Government filed a Reply In Support Of Its September 

25, 2015 Motion To Dismiss And Cross-Motion For Judgment Upon The Administrative Record 

(“Gov’t Reply”).

 

9 Section 570.306 of the General Services Administration Regulation (“GSAR”) 

provides, in relevant part, that “[t]he contracting officer must evaluate offers solely in 

accordance with the factors and subfactors stated in the SFO [Solicitation For Offers].” 48 

C.F.R. § 570.306. 

10 Section 570.303-4 of the GSAR provides, in relevant part, that “[i]f the Government’s 

requirements change, either before or after receipt of proposals, issue an amendment.” 48 C.F.R. 

570.303-4. 
9

III. DISCUSSION. 

A. Jurisdiction. 

Pursuant to 28 U.S.C. § 1491(b)(1), the United States Court of Federal Claims has 

jurisdiction: 

[T]o render judgment on an action by an interested party objecting to a 

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

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

statute or regulation in connection with a procurement or proposed 

procurement. 

28 U.S.C. § 1491(b)(1) (emphasis added). 

The September 18, 2015 Amended Complaint alleges that GSA’s April 29, 2015 letter of 

intent, indicating a decision to award the lease to Des Moines was “arbitrary, capricious, and in 

violation of GSA’s regulations.” Am. Compl. ¶ 3. The United States Court of Federal Claims 

has jurisdiction to adjudicate allegations by an interested party objecting to a proposed contract 

or award. See 28 U.S.C. § 1491(b)(1). Therefore, the court has jurisdiction over the allegations 

in FP-FAA’s September 18, 2015 Amended Complaint. 

B. Standard Of Review. 

Pursuant to the Tucker Act, as amended by the Administrative Dispute Resolution Act, 

Pub. L. No. 104-320 § 12, 110 Stat. 3870, 3874 (Oct. 19, 1996), the United States Court of 

Federal Claims is authorized to review challenges to agency decisions, pursuant to the standards 

set forth in the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. See 28 

U.S.C. § 1491(b)(4) (“In any action under this subsection, the courts shall review the agency’s 

decision pursuant to the standards set forth in section 706 of title 5.”); see also 5 

U.S.C. § 706(2)(A) (“The reviewing court shall . . . hold unlawful and set aside agency action, 

findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law[.]”); see also Banknote Corp. of Am., Inc. v. United States,

365 F.3d 1345, 1350 (Fed. Cir. 2004) (“Among the various APA standards of review in section 

706, the proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): 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.’”) (citations omitted).

 When a bid protest is based on a regulatory or procedural violation, i.e., “not in 

accordance with law,” the United States Court of Appeals for the Federal Circuit also has 

imposed an additional requirement that “the disappointed bidder must show a clear and 

prejudicial violation of applicable statutes or regulations.” Axiom Res. Mgmt., Inc. v. United 

States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (internal quotations and citations omitted). This 

burden is even greater when the procurement is a “best value” procurement, as is the case here. 

See Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004) (“[A]s the 

contract was to be awarded based on ‘best value,’ the contracting officer had even greater 

discretion . . . . [T]he relative merit of competing proposals is primarily a matter of 

administrative discretion.”) (citations omitted); see also TRW, Inc. v. Unisys Corp., 98 F.3d 
10

1325, 1327 (Fed. Cir. 1996) (“In determining whether the agency has complied with the 

regulation authorizing best value procurements, the [reviewing authority] may overturn an 

agency’s decision if it is not grounded in reason.”).

 If an award decision is challenged, because it was made without a rational basis, the trial 

court must determine “whether the contracting agency provided a coherent and reasonable 

explanation of its exercise of discretion, and the disappointed bidder bears a heavy burden of 

showing that the award decision had no rational basis.” Impresa Construzioni Geom. Domenico 

Garufi v. United States, 238 F.3d 1324, 1332–33 (Fed. Cir. 2001) (citations and quotations 

omitted); see also Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282, 1287 (Fed. Cir. 

2010) (“[W]e must sustain an agency action unless the action does not evince rational reasoning 

and consideration of relevant factors.”) (internal alterations, quotations, and citations omitted); 

Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1368–69 (Fed. Cir. 2009) (“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.”) (citations omitted).

In the alternative, if an award decision is challenged on the grounds that an agency acted 

in an arbitrary or capricious manner, the court may intervene “only in extremely limited 

circumstances.” United States v. John C. Grimberg Co., Inc., 702 F.2d 1362, 1372 (Fed. Cir. 

1983). “Courts have found an agency’s decision to be arbitrary and capricious when the agency 

‘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 [the decision] is so implausible 

that it could not be ascribed to a difference in view or the product of agency expertise.’” Ala.

Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting 

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

In this case, the parties have filed Cross-Motions For Judgment On The Administrative 

Record, requiring the court to conduct a proceeding akin to an expedited trial on the record. See 

RCFC 52.1;11 see also Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005) 

(“[T]he judgment on an administrative record is properly understood as intending to provide for 

an expedited trial on the record.”). The existence of a material issue of fact, however, does not 

prohibit the court from granting a motion for judgment on the administrative record, although the 

court has not conducted an evidentiary proceeding. See Bannum, 404 F.3d at 1357 (authorizing 

the court to make “factual findings under RCFC [52.1]12 from the [limited] record evidence as if 

it were conducting a trial on the record.”). 

 

11 RCFC 52.1, in relevant part, provides, “When proceedings before an agency are 

relevant to a decision in a case, the administrative record of those proceedings must be certified 

by the agency and filed with the court.” RCFC 52.1. 

12 In 2006, RCFC 56.1 “Review of a Decision on the Basis of the Administrative Record” 

was repealed and replaced with RCFC 52.1, to conform to the United States Court of Appeals for 

the Federal Circuit’s decision in Bannum, 404 F.3d at 1354 (holding that the court should “make 

factual findings from the record evidence as if it were conducting a trial on the record”). See 

RCFC 52.1, 2006 Rules Committee Notes.
11

C. Whether FP-FAA Has Standing. 

1. The Government’s And Defendant-Intervenor’s Argument. 

The Government and Des Moines argue that FP-FAA does not have standing to contest 

the GSA’s decision, because FP-FAA did not have a substantial chance of winning the contract 

award. Gov’t Mot. at 20; Int. Opp. at 22, 24. 

Specifically, FP-FAA’s Final Proposal was nonconforming, because it could not meet the 

RLP’s August 1, 2017 occupancy deadline. Gov’t Mot. at 22–23. In fact, FP-FAA’s oral 

presentation admitted that it “would need concessions from the [G]overnment relative to the 

existing lease contract in order to deliver the space under the new lease” rendered FP-FAA’s 

Final Proposal nonconforming. Gov’t Mot. at 21 (citing AR Tab 25, at 2902). Specifically, FPFAA stated that [REDACTED]. AR Tab 25, at 2903. Therefore, the Source Selection 

Evaluation Board concluded that “[FP-FAA] failed to demonstrate its capacity to timely deliver 

the space as part of their offer.” AR Tab 25, at 2904. Because FP-FAA’s Final Proposal 

contained material misrepresentations about FP-FAA’s ability to meet the August 1, 2017 

occupancy date, FP-FAA’s Final Proposal was nonconforming and did not have a substantial 

chance of winning the award. Gov’t Mot. at 22–23. 

2. FP-FAA’s Response.

FP-FAA responds that it “did not condition its proposal upon obtaining concessions 

under the existing lease for the [FAA] building.” Pl. Resp. at 3. FP-FAA’s Final Proposal also 

stated that occupancy would be available “[p]rior to August 1, 2017.” AR Tab 8, at 1898.17. As 

for the Source Selection Evaluation Board’s statements about FP-FAA’s ability to meet the 

August 1, 2017 deadline, those statements “indicate[] that [GSA] considered [FP-FAA’s] 

existing lease obligations to be a matter of proposal risk, not technical acceptability.” Pl. Resp. 

at 5 (emphasis added). The Source Selection Evaluation Board’s decided that FP-FAA was “one 

of the top two proposals, with a high technical score and the lowest price of all the offerors.” Pl. 

Resp. at 6. Consequently, FP-FAA had a substantial chance of obtaining the contract with 

standing to challenge the award. Pl. Resp. at 6. 

3. The Court’s Resolution. 

As a threshold matter, a plaintiff contesting the award of a federal contract must establish 

that it is an “interested party” to have standing under 28 U.S.C. § 1491(b)(1). See Myers 

Investigative & Sec. Servs. v. United States, 275 F.3d 1366, 1369–70 (Fed. Cir. 2002) 

(“[S]tanding is a threshold jurisdictional issue[.]”). The United States Court of Appeals for the 

Federal Circuit has construed the term “‘interested party’ in section 1491(b)(1) . . . in accordance 

with the Competition in Contracting Act (“CICA”), 31 U.S.C. §§ 3551–56[.]” Rex Serv. 

Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006). “[T]o come within the [United 

States] Court of Federal Claims’ section 1491(b)(1) bid protest jurisdiction, [the protester] is 

required to establish that it (1) is an actual or prospective bidder, and (2) possesses the requisite 

direct economic interest.” Distrib. Solutions, Inc. v. United States, 539 F.3d 1340, 1344 (Fed. 

Cir. 2008) (citations omitted). 
12

In addition to establishing “interested party” status, a protestor must show that the alleged 

errors in the procurement were prejudicial. See Labatt Food Serv., Inc. v. United States, 577 

F.3d 1375, 1378–79 (Fed. Cir. 2009) (“It is basic that ‘because the question of prejudice goes 

directly to the question of standing, the prejudice issue must be reached before addressing the 

merits.’”); see also Myers, 275 F.3d at 1370 (“[P]rejudice (or injury) is a necessary element of 

standing.”).

 In this case, FP-FAA submitted a proposal in response to the RLP. AR Tab 8, at 818–

1898. As an actual bidder, FP-FAA satisfies the first element of the “interested party” test. 

See Distrib. Sols., Inc., 539 F.3d at 1344 (“To qualify as an ‘interested party,’ a protestor must 

establish that . . . it was an actual or prospective bidder or offeror[.]”). 

 As to the second element, i.e., that the plaintiff “had a direct economic interest” in the 

proposed procurement, FP-FAA submitted the lowest price bid and the record shows that FPFAA was one of the top two bidders. AR Tab 25, at 2887. Thus, FP-FAA satisfies the second 

element of the “interested party” test. See United States v. International Business Machines 

Corp., 892 F.2d 1006, 1011 (Fed. Cir. 1989) (“[O]nly the second-lowest bidder is an interested 

party entitled to protest the award of the contract, . . . because only it stands to receive the 

contract in lieu of the challenged awardee.”) (citation omitted).

 As to prejudice, FP-FAA contends that GSA failed to exclude Des Moines’ Final 

Proposal, despite that fact that it was not in compliance with the maximum ABOA SF 

requirement. Pl. Mem. at 15 (“Des Moines’ proposal should have been eliminated from the 

competition based on its failure to comply with the material RLP ABOA SF requirement.”). 

GSA’s failure would constitute an error. As such, the alleged error would prejudice FP-FAA, 

because “there is a ‘substantial chance’ [that the plaintiff] would have received the contract 

award but for the . . . error[] in the bid process.” Bannum, 404 F.3d at 1358.

 For these reasons, the court determines that FP-FAA has standing to seek an adjudication 

of this bid protest. 

D. Whether General Services Administration’s Contract Award To Des Moines 

Violated The Administrative Procedures Act. 

1. FP-FAA’s Argument. 

FP-FAA argues that GSA’s decision was arbitrary and capricious under section 

706(2)(A) of the Administrative Procedures Act. First, GSA’s acceptance of Des Moines’ Final 

Proposal violated 48 C.F.R. § 570.30613 and 48 C.F.R. § 570.303-414 (collectively, “GSAR 

 

13 Section 570.306 of the General Services Administration Regulation (“GSAR”) 

provides, in relevant part, that “[t]he contracting officer must evaluate offers solely in 

accordance with the factors and subfactors stated in the SFO [Solicitation For Offers].” 48 

C.F.R. § 570.306. 
13

provisions”), because Des Moines improperly offered “approximately” rather than exactly 

262,100 ABOA SF. Second, GSA’s determination that Des Moines complied with the RLP’s 

ABOA SF requirement did not have a rational basis. Am. Compl. ¶¶ 42–45; see also Pl. Mem. at 

14–16, 25. 

FP-FAA contends that GSA violated the GSAR provisions, because despite the RLP 

requesting an exact amount of ABOA SF, Des Moines’ Final Proposal conditioned its offer on an 

approximate amount of ABOA SF. Pl. Mem. at 15–16. The RLP specifically requested a 

“maximum of 300,000 rentable square feet (RSF) of space yielding a minimum of 259,000 to a 

maximum of 262,100 of American National Standards Institute/Building Owners and Managers 

Association (ANSI/BOMA) Office Area (ABOA) square feet (SF).” AR Tab 4, at 59. Yet, Des 

Moines stated in its Final Proposal that the “offered space . . . will yield approximately 262,100 

[ABOA SF] as depicted on the plans of the offered space included elsewhere in this Offer.” AR 

Tab 9, at 2499 (emphasis added). The RLP’s ABOA SF maximum requirement mandated exact 

compliance, not an approximation. Pl. Mem. at 17–18. In fact, “the word ‘approximately’ does 

not appear anywhere in the RLP’s requirement regarding ABOA SF for the building.” Pl. Mem. 

at 19. Because Des Moines improperly conditioned its offer on an approximate ABOA SF 

estimate rather than an exact ABOA SF calculation, Des Moines’ proposal was unacceptable and 

the decision to award the lease to Des Moines violated the GSAR provisions. Pl. Mem. at 19. 

In addition, GSA’s decision lacked a rational basis. Pl. Mem. at 22. “[T]he 

Administrative Record is devoid of any analysis by the Lease Contracting Officer to verify Des 

Moines’ compliance with the ABOA SF requirement.” Pl. Mem. at 22. FP-FAA notes that the 

Lease Contracting Officer did not “identify the space scaling report he reviewed . . . nor did he 

provide his own calculations of the space offered by Des Moines to verify CBRE’s calculations 

were incorrect.” Pl. Mem. at 23. Moreover, the Area Reduction Tracking Summary in Des 

Moines’ final proposal showed “reductions in the rentable square footage . . . offered . . ., not 

reductions in ABOA SF.” Pl. Mem. at 23–24 (emphasis added) (citing AR Tab 9, at 2436 

(“Revisions meet the GSA requirement that the ABOA range be between 259,500sf – 262,100sf 

via a reduction of 18,195sf Total Rentable Area to the original submitted building design.”) 

(emphasis added)). The Lease Contracting Officer’s statement to the GAO that CBRE 

miscalculated Des Moines’ ABOA SF is not supported by the record. Pl. Mem. at 24. 

Moreover, the Lease Contracting Officer’s statement “runs counter to the overwhelming 

evidence of Des Moines[’] repeated failure to meet the ABOA SF requirement[.]” Pl. Mem. at 

25 (citing Motor Vehicles Ass’n, 463 U.S. at 43 (defining arbitrary and capricious to include 

where an agency “has offered an explanation for its decision that runs counter to the evidence 

before the agency.”).

 

14 Section 570.303-4 of the GSAR provides, in relevant part, that “[i]f the Government’s 

requirements change, either before or after receipt of proposals, issue an amendment.” 48 C.F.R. 

570.303-4. 
14

2. The Government’s and Defendant-Intervenor’s Response. 

The Government and Des Moines respond that Des Moines’ Final Proposal met the 

RLP’s ABOA SF requirement and did not improperly offer an “approximate amount of space.” 

Gov’t Mot. at 2; see also Int. Opp. at 1. Moreover, the Lease Contracting Officer’s 

determination that Des Moines complied with the RLP was rationally based. Gov’t Mot. at 2; 

see also Int. Opp. at 1. 

Both the Government and Des Moines contend that Des Moines’ Final Proposal met the 

RLP’s ABOA SF requirement exactly. Gov’t Mot. at 26; see also Int. Opp. at 28–32. After 

being advised that the ABOA SF in Des Moines’ Initial Proposal exceeded the RLP’s maximum

ABOA SF, Des Moines submitted a Final Proposal that: 

(1) [d]isclosed an intent to offer precisely the maximum amount of ABOA office 

space permitted by the RLP; (2) included an [A]rea [R]eduction [T]racking 

[S]ummary to assist in GSA evaluation of offered space; 3) submitted detailed 

drawings identifying specific changes made to reduce the ABOA office space; 

and (4) included revised CAD drawings with a polyline layer showing how Des 

Moines measured its space. 

AR Tab 9, at 2495, 2430, 2437–41, 2419–29.

Des Moines “expressly notifie[d] GSA . . . that Des Moines ha[d] reduced its floor plans 

by a total of 18,195 square feet such that Des Moines was now offering to GSA the precise 

amount of ABOA office space set forth in the RLP.” Int. Opp. at 32. As such, Des Moines’ 

Final Proposal was not improperly conditioned on an approximate amount of space. Gov’t Mot. 

at 27; see also Int. Opp. at 32. Des Moines admits that it did state in its Final Proposal that “[t]he 

offered space includes all of the Rentable Square Footage (RSF) in the Building and will yield 

approximately 262,100 [ABOA SF] as depicted on the plans of the offered space included 

elsewhere in this Offer.” AR Tab 9, at 2499 (emphasis added). Despite FP-FAA’s argument 

that Des Moines’ use of “approximately” was inappropriate, the Government argues that, “as 

understood by GSA and the GAO, this sentence merely refers the reader to the amount of ABOA 

space depicted in Des Moines’ CAD drawings.” Gov’t Mot. at 28. On that very same page, Des 

Moines also emphasized that the Final Proposal was “intended to be in full compliance[.]” Gov’t 

Mot. at 28 (citing AR Tab 9, at 2499). As such, Des Moines did not improperly condition its 

offer on an approximate amount of space. Gov’t Mot. at 28; see also Int. Opp. at 35. 

Finally, both the Government and Des Moines contend that the Lease Contracting 

Officer’s determination that Des Moines’ proposal met the ABOA SF requirement had a rational 

basis. Gov’t Mot. at 29; see also Int. Opp. at 35. In deciding if an agency’s procurement 

decision had a rational basis, the court must determine “whether the contracting agency 

‘provided a coherent and reasonable explanation of its exercise of discretion.’” Gov’t Mot. at 25 

(quoting Impresa Construzioni, 238 F.3d at 1333). Des Moines provided an Area Reduction 

Tracking Summary for the Lease Contracting Officer to use in calculating “how the reductions 

affected the ABOA SF[.]” Gov’t Mot. at 30. Des Moines’ spreadsheets corroborated the 

calculations in the Area Reduction Tracking Summary. Gov’t Mot. at 30 (citing AR Tab 9, at 

2430). This information provided a rational basis for the Lease Contracting Officer to conclude 
15

that CBRE’s calculation of Des Moines’ Final Proposal was incorrect. Int. Opp. at 37. Thus, the 

Lease Contracting Officer’s “conclusion that the difference between the measurements of space 

was not significant, that CBRE’s calculation could have been flawed, and that Des Moines, 

based upon their revised calculations and supporting documents did not offer any additional 

space outside the requirements of the RLP” is supported by the record. Int. Opp. at 38 (quoting 

AR Tab 83, at 3487). 

3. The Court’s Resolution.

An agency’s determination lacks a rational basis if the “action does not ‘evince [] rational 

reasoning and consideration of relevant factors.’” PAI Corp., 614 F.3d at 1351 (quoting 

Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000)). The 

Administrative Record in several places supports GSA’s determination that Des Moines’ Final 

Proposal did not exceed the maximum allowable ABOA SF. First, in its Final Proposal, Des 

Moines provided an Area Reduction Tracking Summary, which calculated the exact amount and 

type of space that Des Moines reduced to conform to the ABOA SF requirement. AR Tab 9, at 

2436. Second, Des Moines’ Final Proposal included CAD drawings that identified the areas 

reduced. AR Tab 9, at 2437–41. Finally, although CBRE conducted an independent calculation 

and concluded that Des Moines’ Final Proposal was “8,936 ABOA SF above the maximum,” the 

Lease Contracting Officer provided a rational basis for determining that CBRE had 

miscalculated Des Moines’ Final Proposal’s ABOA SF offering. AR Tab 27, at 2986. 

Specifically, in a supplemental statement submitted to the GAO, the Lease Contracting Officer 

stated: 

Maria Kobe, CBRE, GSA’s National Broker Contractor, requested a space scaling 

be performed as part of the Government’s due diligence. The report provided to 

her by her CBRE colleagues indicated more space was provided by the Offeror 

[Des Moines] than what the Offeror stated on their offer documents. I reviewed 

this information and in a conversation with Ms. Kobe, was able to determine that 

flaws may have existed in how the calculation was performed. Those centered 

around misplacement of polylines on each floor to assist in calculating the square 

footage, misunderstanding aspects of the space that may be part of an excluded 

area, and a misunderstanding of the Government’s calculation methodology to the 

standard. In discussing with Ms. Kobe, I came to the conclusion that the 

difference between the measurements of space was not significant, that CBRE’s 

calculation could have been flawed, and that Des Moines, based upon their 

revised calculations and supporting documents did not offer any additional space 

outside the requirements of the RLP. 

AR Tab 83, at 3487.15

 

15 The court recognizes that the Lease Contracting Officer’s supplemental statement is a 

post hoc rationalization of his decision. But, the United States Court of Appeals for the Federal 

Circuit has stated that “[c]ourts reviewing bid protests routinely consider post-award [] analyses 

and consider evidence developed in response to a bid protest.” Turner Const. Co. v. United 

States, 645 F.3d 1377, 1386 (Fed. Cir. 2011); see also Glenn Defense Marine (ASIA), PTE Ltd. v. 
16

The CAD drawings, the Area Reduction Tracking Summary, Des Moines’ 

representations and calculations as well as the Lease Contracting Officer’s analysis all provide a 

rational basis for GSA’s decision. Because the court has found “a reasonable basis for the 

agency’s action, the court should stay its hand even though it might . . . have reached a different 

conclusion as to the proper administration and application of the procurement regulations.” 

Weeks Marine, 575 F.3d at 1371. 

But, the court’s inquiry does not end with a rational basis review and in this case must 

proceed with determining whether the agency violated the GSAR provisions. See PAI Corp., 

614 F.3d at 1351 (stating that an agency’s action may also be arbitrary and capricious if “the 

procurement procedure involved a violation of regulation or procedure.”). If a plaintiff 

demonstrates that the agency committed an error, then the plaintiff must also show that the error 

was prejudicial. See Glenn Defense Marine, 720 F.3d at 907–08 (“De minimis errors in the 

procurement process do not justify relief. . . . Ultimately, to prevail in a bid protest, the protester 

must show prejudicial error.”) (citations omitted).

The GSAR provisions require GSA to “evaluate offers solely in accordance with the 

factors . . . stated in the SFO [Solicitation for Offers].” 48 C.F.R. § 570.306. If GSA evaluates 

offers using factors other than those stated in the SFO, then GSA must “issue an amendment.” 

48 C.F.R. § 570.303-4. If Des Moines improperly offered space that exceeded the RLP’s 

maximum, then GSA violated the GSAR provisions, because it improperly accepted an offer that 

did not follow the factors listed in the SFO. The particular statement that allegedly violates the 

GSAR provisions is as follows, “The offered space includes all of the Rentable Square Footage 

(RSF) in the Building and will yield approximately 262,100 [ABOA SF] as depicted on the plans 

of the offered space included elsewhere in this Offer.” AR Tab 9, at 2499 (emphasis added). 

Taken in context, the court interprets Des Moines’ use of “approximately” as referring to the 

CAD floor plans, as well as the accompanying Area Reduction Tracking Summary contained in 

Des Moines’ Final Proposal. Thus, the word “approximately” alone does not indicate that Des 

Moines submitted “a proposal that, on its face, leads ‘an agency to the conclusion that an offeror 

could not and would not comply with [the contract].’” Centech Group, Inc. v. United States, 554 

F.3d 1029, 1038 (Fed. Cir. 2009) (quoting Chapman Law Firm v. United States, 63 Fed. Cl. 519, 

527 (2005)). For these reasons, the court has determined that Des Moines did not improperly 

condition its Final Proposal on an offer of approximate space. Because FP-FAA failed to show 

that the agency committed an error, the court need not address whether there was prejudice. 

 

United States, 720 F.3d 901, 911 n. 8 (“All of the materials submitted to the GAO are part of the 

administrative record before the [United States] Court of Federal Claims.”).
17

IV. CONCLUSION.

For reasons discussed herein, FP-FAA’s September 18, 2015 Motion For Judgment On 

The Administrative Record is denied. The Government’s and Des Moines’ September 25, 2015 

Cross-Motions For Judgment Upon The Administrative Record are granted. Accordingly, the 

Clerk is directed to enter judgment on behalf of the Government and Des Moines. 

No costs. 

IT IS SO ORDERED. 

s/ Susan G. Braden 

SUSAN G. BRADEN 

Judge