# In the United States Court of Federal Claims

No. 18

- 1055C Filed Under Seal: December 6, 2018 Reissued: January 2 , 2019 * NOT FOR PUBLICATION

MES SIMULATION & TRAINING CORP.
Plaintiff,

v.
THE UNITED STATES,

Defendant
,

v.
RIPTIDE SOFTWARE, INC.

Defendant

- Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Post

- Award Bid Protest; Judgment upon the Administrative Record; RCFC 52.1; Best Value Determination; Injunctive Relief; Supplementing the Court Record

.

Jonathan D. Shaffer , Counsel of Record, Mary Pat Buckenmeyer, Of Counsel, Todd M. Garland, Of Counsel, Smith Pachter McWhorter PLC, Tysons Corner, VA, for plaintiff.

Andrew W

. Lamb , Trial Attorney, Allison Kidd

- Miller , Assistant Director, Robert E. Kirschman, Jr. , Director, Joseph H. Hunt , Assistant Attorney General, Commercial Litigation Branch, Civil Division, Unit ed States Department of Justice, Washington, DC; Kristine Kassekert , Of Counsel, United States Marine Corps, Quantico, VA, for defendant.
John M. Manfredonia , Counsel of Record, Manfredonia Law Offices, LLC, Cresskill, NJ, for defendant

- intervenor.

* This Memorandum Opinion and Order was originally filed under seal on December 6, 2018 (docket entry no. 36 ). The parties were given an opportunity to advise the Court of their views with respect to what information, if any, should be redacted from the Memorandum Opinion and Order. The parties filed a joint status report on December 27, 2018 (docket entry no. 38) proposing certain redactions which the Court has adopted. And so, the Court is reissuing its Memorandum Opinion and Order, dated December 6, 2018, with the agreed

- upon redactions indicated by three consecutive asterisks within brackets ([* * *]).2 MEMORANDUM OPINION AND ORDER GRIGGSBY, Judge

I. INTRODUCTION
Plaintiff, MES Simulation & Training Corp. (“MES”), brought this post

- award bid protest action challenging the decision of the United States Marine Corps, Marine Corps Sys tems Command (the “Marine Corps” ) to award a contract for the Support Army Virtual Training (“SAVT”) system issued by Program Manager Training Systems to Riptide Software, Inc. (“Riptide”). The parties have filed cross

- motions for judgment upon the administrative record, pursuant to Rule 52

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

- Int. Mot. MES has also filed a motion to supplement the

court record. See generally Pl. Mot. to Supp.

For the reasons discussed below, the Court : (1) GRANTS MES’s motion to supplement the court record; (2) DENIES MES’ s motion for judgment up on the administrative record; (3 )
GRANTS the government ’s and Riptide’s cross

- motions for judgment upon the administrative record; and (4) DIS MISSES the complaint.

II. FACTUAL AND PROCEDURAL BACKGROUND 1

A. Factual Background
In this post

- award bid protest matter, MES challenges the decision by the Marine Corps
to award a contract for a SAVT system to provide training for Joint Tactical Air Con troller
Forward Air Controllers and Forward Observers in the employment of Supporting Arms and Close Air Support (the “SAVT Contract”) to the defendant

- intervenor in this matter, Riptide. Compl. at ¶ 1.
Specifically, MES challenges the Marine Corps’ evaluation process in connection with
the award of the SAVT Contract to Riptide. See generally id. As relief, MES requests that the

1 T he facts recited in this Memorandum Opinion and Order are taken from the administrative record (“AR”); plaintiff’s complaint (“Compl.”); plaintiff’s motion for judgment upon the administrative record (“Pl. Mot.”); plaintiff’s memorandum in support of its motion for judgment upon the administrative record (“Pl. Mem.”); and the government’s and Riptide’s respective cross

- motion s for judgment upon the administrative record (“Def. Mot.” and “Def.

- Int. Mot.”). Except wh ere otherwise noted, all facts recited herein are undisputed.3

Court : (1) declare that the Marine Corps violated the material terms of t he RFP by failing to
award the SAVT C ontract to MES; (2) grant permanent injunctive relief directing the Marine Corps to award the SAVT Contract to MES, or to re

- evaluate MES’ s and Riptide’s proposals; (3) alternatively , grant permanent injunctive relief directing the Marine Corps to conduct meaningful
discussions with offerors and re

- evaluate the proposals based on those discussions; and (4) award MES costs, including bid and proposal costs and reasonable attorney’s fees. Id . at Prayer for
Relief.
As background, MES is a small business an d technical services corporation located in Christmas, Florida. Compl. at ¶ 14. MES is the incumbent contractor for the Marine Corps’ requested logistic services training simulator (“Ta sk Order 1”). Compl. at ¶ 14; Def. Mot. at 2.
MES is not the incumb ent contractor for the requested simulator modifications for the SAVT system (“Task Order 2”). Compl. at ¶ 14; Def. Mot. at 2

- 3.

1. The R FP
On August 25, 2017, the Marine Corps issued Request for Proposal No. M6785417R7826 (the “RFP”) seeking proposals f or operating and monitoring t he SAVT system.
AR Tab 1 at 1. The RFP sought proposals for an indefinite delivery/indefinite quantity (“IDIQ”) contract with a base ordering period of 60 months

. Id. at 2. Under the terms of the RFP, the
SAVT C ontract woul d be issued for an amount of up to $49 million, or until the basic ordering period ends, which ever comes first. Id. The RFP also involves a “100% Small Business set

aside.” Id.

The RFP contains two task orders. See generally id. E ach task order has a Performance Work Statement (“PWS”) outlining its respective requirements. Id. at 63

- 115 ( providing the
PWS for Task Order 1); see also id. at 116

- 64 ( providing the PWS for Task Order 2).

The Performance Work Statement for Task Order 1 provides that t he c ontractor “ shal l provide all labor, materials, consumables, equipment, tools, repairs, tech data, test equipment, and transportation necessary to operate/maintain the training systems and equipment
, ” as well as recurring projects such as janitorial sup port. Id. at 98. Task Order 1 also requires “daily operation and maintenance” and a period of performance that “will end 12 months after” Task
Order 1 is awarded. Id. at 98, 114.4

Of particular relevance here, Task Order 2 requires that offerors provid e hardware and software modifications to the SAVT system. Id. at 122; Def. Mot. at 6. Task Order 2’s
Performance Work Statement provides that “[t]he Period of Performance will end 18 months
after Task Order 002 date of award.” AR Tab 1 at 163 ; see also id. at 541 ( providing a Comment
Resolution Matrix which states that the period of performance for Task Order 2 is “18 mos.”).
With regard s to the evaluation of responsive proposals, the RFP provides that the Marine Corps will consider four evaluation factors: (1) Training Device Operators Approach; (2) Technical App roach; (3) Past Performance; and (4) P rice. Id. at 56. The RFP further provides
that the Marine Corps may award the SAVT Contract to an offeror other than the lowest priced
of feror. Id. The RFP also provides that the Training Device Operators Approach Factor is more important than the Technical Approach Factor
, and that the Technical Approach Factor is more important than the Past Performance Factor. Id. In addition, t he RF P provides that t he non

- price
evaluation factors, when combined, are significantly more important than price. Id. 2
With regard s to Factor 1, Training Device Operators Approach , the RFP provides that : The Government will evaluate the Training Device Operators Approach for:
1. Roles and responsibilities proposed for Operators/Maintainers are comprehensive and will result in successful performance. 2. Knowledge, Skills, Education, and Work experience for Operators proposed demonstrat e knowledge of the require ments. 3. Ability to successfully perform required services on day one of the contract. 4. Compensation Plan shall be evaluated for reflecting a clear under standing of work to be and capability of the proposed compensation struc ture to obtain and keep suitably q ualified operators to meet mission objectives.
Id.

T he RFP also provides that the Marine Corps’ Technical Evaluation Team (“TET”) must assign each offeror a rating for the Training Device Operators Approach Factor to determine how well the offeror’s proposal meets or exceeds the RFP’s requirements

. Id. at 57. Specifically, the RFP provides that o fferors may be assigned a rating of either “outstanding,” “good,” “acceptable,” “marginal,” or “unacceptable” under the Training Device Operators Approach

2 T he RFP also makes clear that “as non

- price factors qualitative distinctions become closer, price increases in importance.” AR Tab 1 at 56.7

Factor 2. Technical Approach Acceptable

— Moderate Risk Acceptable

— Low Risk
Factor 3. Past Performance Substantial Confidence Substantial Confidence

AR Tab 16 at 1178, 1225.

i. Evaluation Of T he Training Device Operators Approach Factor

With regards to MES’ s proposal
, t he TET assigned two weaknesses and one strength
under the Training Device Operators Approach Factor. AR Tab 16 at 1178. But, t he TET
determined that the identif ied weaknesses in MES’s proposal were low risk
, and that “[one weakness] likely could be resolved at the Post Award Conference and documented in the meeting minutes

. ” Id. at 1179.
With regard s to Riptide’s proposal, the Marine Corps’ TET assigned one we akness and one strength for the Training Device Operators Approach Factor

. Id. at 1225. The
administrative record shows that the TET assigned the weakness:
[B] ecause Riptide’s proposal assigns [* * *] . It is clear from the proposal that Riptide can successfull y hire employees independently

. . . . Id. at 1225. In addition, the TET assigned the proposals submitted by MES and Riptide a

st rength each “in the area of Knowledge, Skills, Education, and Work experiences for proposing Operators” under the Training Device Operators Approach Factor

. Id. at 1179, 1226.

ii. Evaluation Of T he Technical Approach Factor
With regard s to the Technical Approach Factor
, the TET evaluated MES ’s proposal as “acceptable
, ” but with a m oderate risk

. AR Tab 16 at 1178

. In this regard, the Marine Corps assigned MES’s proposal three weaknesses, one medium r isk
, two low r isk, and one s trength. Id.
at 1187 , 1196

- 98

. The administrative record shows that t he weakness assigned to MES’s proposal centered on “ [* * *] ,” and s pecifically, the “ [* * *] .” Id. at 1196. In this regard, t he
TET noted:
These three Weaknesses, when considered together, present a MEDIUM Risk to the Government, and, as a result, the TET assesses them together as a Weakness because [* * *]

.8

Id. The TET also assigned one strength for MES’s “ [* * *] ” proposal and the TET found the proposal to be advantageous to the g overnment

. Id. at 1197

- 98. And so, t he TET determined that, “[b]ased on the associate technical approach, the labor categories pro posed by MES [in its proposal] reflect the expected competencies and skill required to successfully perform the requirements of TO 002 PWS.” Id. at 1195.

With regards to the evaluation of Riptide’s proposal under the Technical Approach Factor, the TET a ssigned one w eakness
, which was low risk, and no s trengths. Id. at 1233. In this regard, the administrative record shows that t he TET assigned th e weakness because “ [t ] he proposed hours and distribution of the hours is insufficient to successfully perfor m the logistics related tasks.” Id. The administrative record also shows that Riptide’s proposal included labor
hours for [* * *] , with the hours allocated in specific labor categories for the first [* * *] of performance. AR Tab 13 at 945

- 49. Although the TET assigned a weakness to Riptide’s proposal, t he TET assessed this weakness to be a “low risk
, ” because “ Riptide does propose various labor categories which may have the requisite skills to provide the [* * *]

. . . . ” AR Tab
16 at 1242. And so, th e TET ultimately determined that the “ proposed labor mix and hours are likely to result in successful performance of the PWS requirements ” for Task Order 2. Id. at 1242 (emphasis original).

The TET also addressed why it did not award Riptide’s proposa l a strength for proposing an accelerated performance schedule under the Technical Approach Factor. Id. at 1242. In this regard, the TET found that: Additionally, it appears that Riptide is proposing to perform certain work faster than the expected 18

- m onth period of performance, which, if true, might be considered beneficial to the Government. However, other than date references in Riptide’s proposal (in Riptide’s TO 0002 Summary, Riptide provides a breakout for [* * *] , and provides the notation [* * *] ), Riptide does not describe an approach that would achieve those results. So, for example, the TET did not identify a section of the proposal that described how Riptide would concurrently perform tasks. Because Riptide does not explicitly propose to c omplete Task Order 0002 tasks in

an [* * *] , nor is this explained elsewhere in Riptide Volume II, Section 1 or Section 2 proposal, this leaves the TET with an ambiguity that should be clarified, if applicable, at a Post Award Conference.

Id. at 1242.9 iii. Evalua tion Of T he Past Performance Factor
With regard s to the Marine Corps’ evaluation of the proposals submitted by MES and Riptide under the Past Performance Factor
, the Marine Corps’ PPET determined that there was a “high expec tation that [ both MES and Riptide] will successfully perform the requirements of the RFP.” AR Tab 16 at 1199, 1244. In this regard , the PPET found that MES has successfully performed as the incumbent for the SAVT Contract and successfully performed other contracts
of simi lar scope, magnitude
, and complexity. Id. at 1199. The PPET also determined that Riptide has “proven successes

. . . in the area of training simulator and training systems.” Id. at 1243. And so, the PPET evaluated these offerors’ proposals equally unde r the Past Performance
Factor. Id. at 1154, 1199, 1243

- 44.

iv. Evaluation O f Price
Lastly, with respect to the P rice Factor , the administrative record shows that MES proposed a total evaluated price of $3,191,228 and that Riptide proposed a lower total evaluated price of $2,818,414. AR Tab 18 at 1299. And so, the Marine Corps determined that Riptide’s total evaluated price was the lowest of all acceptable proposals. Id.

3. Best Value Determination And Award T o Riptide

A fter conducting an evaluation of all responsive proposals , the Marine Corps’ Source Selection Authority (“SSA”) performed a best value determination and determined that “Riptide provide [d] the best overall value to the Government

. ” 4 AR Tab 18 at 1299. O n March 23, 2018,
the SSA issue d a Source Selection Decision Memorandum (“SSA Memo”) explaining the agency’s decision to award the SAVT Contract to Riptide

. See generally id. I n the SSA Memo,
the SSA determined that “while Riptide’s proposal does not offer any strengths [for the
Techn ical Approach Factor ],” the proposal does provide the “lowest risk of unsuccessful performance” to the Marine Corps. Id. at 1305. The SSA Memo also states that, “Riptide is assessed as more advantageous than MES” under the Technical Approach Factor, even though MES and Riptide received the same rating for this factor, because “the risk that MES would be

4 The RFP provides that: “[a] ward will be made to the proposal that results in the best value to the Government as defined in [Federal Acquisition R egulation ] 2.101 on the basis of a tradeoff between technical merit, past performance , compensation plan, and price.” AR Tab 1 at 56.10

unable to successfully perform the [* * *] is an unnecessary risk in comparison to Riptide’s proposal.” Id.
In addition, the SSA determined that “not on ly is Riptide the most highly rated proposal amongst all Offers for non

- price Factors, it also p rovides the lowest [total] evaluated [price] .”
Id. at 1310. In this regard, t he SSA determined that “Riptide provided a slightly superior and more advantageou s Factor 1 Training Device Operators Approach

. . . as a result of their having proposed [* * *]

. . . . [and that ] Riptide distinguished themselves as slightly more advantageous
to the Gov ernment than MES [for the Technical Approach Factor ]. ” Id. at 1309. The SSA also
determined that “[t]here were no qualitative distinctions between the Past Performance of

. . . MES and Riptide.” Id. at 1309. And so, the SSA concluded that “the Best Value to the Government is straightforward as the Government does not p ay more for less a dvantageous non

price proposals ” and the SSA recommended that the Marine Corps award the SAVT Contract to Riptide. Id. at 1298

- 99 , 1310.

4. The Small Business Administration A nd GAO Protest s Following the award of the SAVT Contract to Riptide , MES filed a size protest with the Small Business Administration (“SBA”) on March 30, 2018 . AR Tab 29 at 1561. In that protest , MES alleged that “Riptide has no applicable relevant expertise to do this work and they are totally dependent” upon a third party

. Id. MES also alleged that Riptide did not qualify as a
small business. Id. ; Def. Mot. at 17. On April 26, 2018, t he SBA denied MES’s size protest

. AR Tab 29 at 1571.
On April 2, 2018, MES initiated a protest before the United States Go vernment Accountability Office (“GAO”) regarding the award of the SAVT Contract to Riptide. See generally AR Tab 24. On May 14, 2018, MES fi led a supplemental GAO protest alleging
, among other things, that Riptide violated the RFP’s requirements by propo sing a period of performance for Task Order 2 of [* * *] identified in the Performance Work Statement for Task
Order 2. AR Tab 32 at 284 9; Def. Mot. at 18. O n July 10, 2018, the GAO denied MES’s protest. AR Tab 39 at 2960

- 71 ; MES Simulation & Training C orp., B

- 416210, B

- 416210.2, 2018 WL 3641320 (Comp. Gen. July 10, 2018).11

B. Procedural History
On July 18, 2018, MES filed the complaint in this bid protest matter. See generally Compl. On July 19, 2018, Riptide filed an unopposed motion to intervene, which the Court granted on July 23, 2018. See generally Mot. to Intervene; Order, dated July 23, 2018. On July 23, 2018, the Court entered a Protective Order in this matter. See general ly Protective Order.
On August 14, 2018, the government filed the administrative record. See generally AR. On August 15, 2018, MES filed a motion to supplement the court record. See generally Pl. Mot. to Supp. On August 21, 2018, MES filed a motion for judgment upon the administrative record and memorandum in support of its motion for judgment upon the administrative record

. See generally Pl. Mot. ; Pl. Mem. On August 22, 2018, the government filed a response an d opposition to MES’s motion to supplemen t the court record. See generally Def. Opp. On August 24, 2018, MES filed a reply in support of its motion to supplement the court record. See generally Pl. Reply to Mot. to Supp.
On September 4, 2018, the government and Riptide filed their respective cross

- motions for judgment upon the administrative record and responses and oppositions to MES’s motion for judgment upon the administrative record. See generally Def. Mot.; Def.

- Int. Mot.
On September 13, 2018, MES filed a response and opposition to the government’s and Riptide’s respective cross

- motions for judgment upon the administrative record and a reply in support of its motion for judgment upon the administrative record. See generally Pl. Resp. On September 21, 2018, the government and Riptide f iled their respective reply briefs in support of
their cross

- motions for judgment upon the administrative record. See generally Def. Reply;
Def.

- Int. Reply. 5
These matters having been fully briefed, the Court resolves the pending motions.

5 In its motion for judgment upon the administ rative record, MES requests that the Court hold oral argument on the parties’ cross

- motions. Pl. Mot. at 2. A careful review of the administrative record and the parties’ briefs demonstrates that oral argument is not warranted to resolve MES’ s claims. And so, the Court resolves the pending motions based upon the parties’ filings and the administrative record

. See RCFC 1; RCFC 52.1.12

III. LEGAL STAND ARDS

A. Bid Protest Jurisdiction
The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid protests brought by “an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). This Court reviews agency actions in bid protest matters under the “arbitrary and capricious” standard. See 28 U.S.C. § 1491(b)(4) (adopting the standard of review set forth in the Administrative Procedure Act). And so, under the Administrative Procedure Act standard, an award may be set aside if “‘(1) the procurement official’s decision
lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.’” Banknote Corp. of Am., Inc. v. United States
, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States
, 238 F.3d 13 24, 1332 (Fed. Cir. 2001)). In this regard, the United States Court of Appeals for the Federal Circuit has explained that:
When a challenge is brought on the first ground, the test is whether the contracting agency provided a coherent and reasonable expla nation of its exercise of discretion, and the disappointed bidder bears a heavy burden of showing that the award decision had no rational basis. When a challenge is brought on the second ground, the disappointed bidder must show a clear and prejudicial vi olation of applicable statutes or regulations.

Id . at 1351 (internal citations omitted). In reviewing an agency’s procurement decision, the Court also recognizes that the agency’s decision is entitled to a “presumption of regularity.” Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 415 (1971), abrogated on other grounds by Califano v.
Sanders , 430 U.S. 99 (1977) (citations omitted). In addition, the Court should not substitute its judgment for that of the agency. Cincom Sys., Inc. v. Unit ed States , 37 Fed. Cl. 663, 672 (1997). And so, “‘[t]he protestor must show by a preponderance of the evidence that the agency’s actions were either without a reasonable basis or in violation of applicable procurement law.’” Gentex Corp. v. United States
, 58 Fed. Cl. 634, 648 (2003) (quoting I nfo. Tech. & Applications Corp. v.
United States
, 51 Fed. Cl. 340, 346 (2001), aff’d
, 316 F.3d 1312 (Fed. Cir. 2003)).13

This standard “is highly deferential.” Advanced Data Concepts, Inc. v. United States
, 216 F.3d 1054, 1058 (Fed. Cir. 2000). As long as there is “a reasonable basis for the agency’s action, the court should stay its hand even though it might, as an original proposition, have reached a different conclusion . . . .” Honeywell, Inc. v. United States , 870 F.2d 644, 648 (Fed. Cir. 1989) (citation omitted). But, if “the agency entirely fail[s] to consider an important aspect of the problem [or] offer[s] an explanation for its decision that runs counter to the evidence before the agency,” then th e resulting action lacks a rational basis and, therefore, is defined as “arbitrary and capricious.” Ala. Aircraft Indus., Inc.

- Birmingham v. United States
, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. In s. Co. , 463 U.S. 29, 43 (1983)) (internal quotation marks omitted).

B. Best Value Determinations
This Court affords contracting officers a great deal of discretion in making contract award decisions, particularly when the contract is to be awarded to the offe ror that will provide the best value to the government. See TRW, Inc. v. Unisys Corp. , 98 F.3d 1325, 1327

- 28 (Fed. Cir. 1996); E.W. Bliss Co. v. United States
, 77 F.3d 445, 449 (Fed. Cir. 1996); Lockheed Missiles & Space Co. v. Bentsen , 4 F. 3d 955, 958

- 59 (Fed. Cir. 1993); Banknote Corp. of Am. v. United
States , 365 F.3d 1345, 1355

- 56 (Fed. Cir. 2004)

. The Court has held that the government’s best value determination should not be disturbed, if the government documents its analysis and
includes a rational e for any business judgments and trade

- offs made in reaching that decision. See Blackwater Lodge & Training Center , Inc. v. United States , 86 Fed. Cl. 488, 514 (2009)

. And so, a decision to award a contract is least vulnerable to challenge when that deci sion is based upon a best value determination. PlanetSpace, Inc. v. United Sates , 96 Fed. Cl. 119, 125 (2010).

C. Judgment Upon The Administrative Record
Generally, RCFC 52.1 limits this Court’s review of an agency’s procurement decision to
the administr ative record. RCFC 52.1; see Axiom Res. Mgmt., Inc. v. United States , 564 F.3d 1374, 1379 (Fed. Cir. 2009) (“[T]he focal point for judicial review should be the administrative record already in existence.”). And so, unlike a summary judgment motion broug ht pursuant to
RCFC 56, “the existence of genuine issues of material fact does not preclude judgment on the
administrative record” under RCFC 52.1. Tech. Sys., Inc. v. United States , 98 Fed. Cl. 228, 24214

(2011) (citations omitted); RCFC 56. Rather, the C ourt’s inquiry is whether, “given all the disputed and undisputed facts, a party has met its burden of proof based on the evidence in the
record.” A & D Fire Prot., Inc. v. United States , 72 Fed. Cl. 126, 131 (2006).

D. Injunctive Relief
Under its bid prote st jurisdiction, the Court “may award any relief [it] considers proper, including declaratory and injunctive relief . . . .” 28 U.S.C. § 1491(b)(2); see also Centech Grp.,
Inc. v. United States , 554 F.3d 1029, 1037 (Fed. Cir. 2009). In deciding whether to issue a permanent injunction, the Court “considers: (1) whether . . . the plaintiff has succeeded on the merits of the case; (2) whether the plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3) whether the balance of hardships to the respective parties favors the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive relief.” PGBA,
LLC v. United States , 389 F.3d 1219, 1228

- 29 (Fed. Cir. 2004) (citing Amoco Prod. Co . v. Vill. of Gambell, Alaska
, 480 U.S. 531, 546 n.12 (1987) (“The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show
a likelihood of success on the merits rather than actual success.”); see also Centech Grp., Inc.
, 554 F.3d at 1037. In this regard, the United States Court of Appeals for the Federal Circuit has
held that:
No one factor, taken individually, is necessarily dispositive. If a preliminary injunction is gra nted by the trial court, the weakness of the showing regarding one factor may be overborne by the strength of the others. If the injunction is denied, the absence of an adequate showing with regard to any one factor may be sufficient, given the weight or lack of it assigned the other factors, to justify the denial.
FMC Corp. v. United States , 3 F.3d 424, 427 (Fed. Cir. 1993) (citations omitted).
A plaintiff who cannot demonstrate actual success upon the merits cannot prevail upon a motion for permanent i njunctive relief. Cf

. Nat’l Steel Car, Ltd. v. Canadian Pacific Ry., Ltd
., 357 F.3d 1319, 1325 (Fed. Cir. 2004) (finding that a plaintiff who cannot demonstrate likely success upon the merits cannot prevail upon its motion for preliminary injunctive relie f). This Court has also found success upon the merits to be “the most important factor for a court to consider when deciding whether to issue injunctive relief.” Dellew Corp. v. United States , 108 Fed. Cl. 357, 369 (2012) (citing Blue & Gold Fleet, L.P. v. United States , 492 F.3d 1308, 1312 (Fed. Cir. 2007)). But , while success upon the merits is necessary, it is not sufficient alone for a15

plaintiff to establish that it is entitled to injunctive relief. See Contracting, Consulting, Eng’g
LLC v. United S tates , 104 Fed. Cl. 334, 353 (2012) ((“Although plaintiff’s entitlement to injunctive relief depends on its succeeding on the merits, it is not determinative because the three equitable factors must be considered, as well.”) (citations omitted)).

IV. LEGAL ANA LYSIS
The parties have filed cross

- motions for judgment upon the administrative record pursuant to RCFC 52.1 on the issue s of whether the Marine Corps properly evaluated Riptide’s proposal under the terms of the RFP and whether the Marine Corps conducte d a reasonable best
value analysis. See generally Pl. M em. ; Def. Mot; Def.

- Int. Mot. MES has also filed a motion to supplement the court record. See Pl. Mot. to Supp.
MES argues in its memorandum in support of its motion for judgment upon the administrative record that the Marine Corps did not conduct a reasonable evaluation of proposals with respect to the award of the SAVT Contract because: (1) the administrative record does not meet the standards of the Administrative Procedure Act (“A PA”) for documentation of the Marine Corps’ award decision ; (2) the Marine Corps failed to properly evaluate Riptide’s proposal under the RFP ’s requirements; and (3) the Marine Corps failed to perform a reasonable and proper trade

- off analysis and best val ue determination. See Pl. M em. at 13

- 30. MES also requests that the Court supplement the court record with the declaration of its President, Naren
Shahani

. See generally Pl. Mot. to Supp.

In their cross

- motions for judgment upon the administrative rec ord, t he government and Riptide counter that the Marine Corps ’ decision to award the SAVT Contract to Riptide was reasonable and in accordance with the terms of the RFP and applicable law. And so, the government and Riptide request that the Court sustain the Marine Corps’ award decision. See
Def. Mot. at 23

- 35; Def.

- Int. Mot. at 9

- 23.
For the reasons discussed below, the Court may consider the Declaration of Naren
Shahani because the declaration addresses the factors that the Court weighs in awarding
in junctive relief. In addition, t he record evidence makes clear that the Marine Corps’ evaluation of proposals in connection with the award of the SAVT Contract to Riptide was reasonable and consistent with the requirements of the RFP . And so, the Court: (1) GRANTS MES’s motion to supplement the court record; (2) DENIES MES’s motion for judgment up on the administrative16

record; (3 ) GRANT S the government’s and Riptide’s cross

- motions for judgment upon the administrative record; (4) DISMISS ES the complaint.

A. The Court Grants MES’s Motion To Supplement The Court Record
As a preliminary matter, the Court grants MES’s motion to supplement the court record
with the declaration of Naren Shahani . In its motion to supplement the court record, MES requests that the Court include the d eclaration of its President, Naren Shahani
, in the court record
for this matter to support its request for injunctive relief . Pl. Mot. to Supp. at 1. As MES correctly observes in its motion to supplement the court record, this Court re cognizes a distinction between the court record and the administrative record in bid protest matter s . Pl. Mot. to Supp. at 5. Generally, the court record includes evidence that may not necessarily be in the administrative record, such as evidence regardi ng harm to a plaintiff or to the government
, or other evidence pertaining to the injunctive relief factors

. See, e.g. , AshBritt, Inc. v. United States
, 87 Fed. Cl. 344, 366

- 67 (2009) (“ In general, it is appropriate to add evidence pertaining to prejudice and the factors governing injunctive relief to the record in a bid protest

— not as a supplement to the AR, but as part of this Court ’ s record. ”).
In this case, a careful reading of the Shahani Declaration shows that the declaration
addresses MES’s request for injunctive relief and the injunctive relief factors that the Court
should consider

. Given this , the Court GRANTS MES’s motion to supplement the court record
with the declaration of Naren Shahani

.
B. The A dministrative R ecord Satisfies The APA Standard For Documentation
Turning to the substance of MES’s claims, the Court must reject MES’s claim that the
administrative record in this matter is insufficient
, because it contains no explanation regarding the Marine Corps’ evaluation of, and dec ision not to exclude, Riptide’s proposal due to the accelerated performance schedule in the proposal . Pl. Mem. at 13

- 16

. It is well

- established that

a n administrative record is sufficiently clear if “the agency’s path forward may reasonably be
discerned. ” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co. , 463 U.S. 29, 43 (1983). And so, in this case , the administrative record must contain supporting documentation to explain the ratings that the Marine Corps assigned to Riptide’s proposal in connection with the evaluation process for the SAVT Contract

. AshBritt, Inc. v. United States , 87 Fed. Cl. 344, 370 (2009) ; see also Fla. Power & Light Co. v. Lorion , 470 U.S. 729 (1985).17

A careful review of the administrative record shows that the reco rd evidence in this case
satisfies the aforementioned standard for documentation. Specifically, t he administrative record
contains detailed reports from the Marines Corps’ TET and PPET regarding the agency’s review of responsive proposals

. See generally AR Tab 16. These reports describe the evaluation f actors under the RFP and the basis for the ratings assigned by the Marine Corps to each responsive proposal

— including Riptide’s proposal

— during the agency’s evaluation process

. Id.

T he administrative re cord also shows that the Marine Corps carefully evaluated Riptide’ s accelerated schedule for performing the SAVT Contract . In this regard, the record evidence
shows that the TET ’s report determined that : Riptide proposes a labor category of [* * *]

. The proposed hours and distribution of the hours is insufficient to successfully perform the logistics related tasks.

AR Tab 16 at 1233. T he administrative record also shows that t he Marine Corps’ TET assessed Riptide’s proposed labor mix and hours as “ a low risk ” to the government

. Id. at 1233, 1240. Specifically
, the administrative record further shows that : [T]he TET has reviewed the labor mix and hours in Riptide’s proposal and determined that there is risk of unsuccessful performance resulting from the misalignment of labor mix and hours. This pres ents a LOW Risk to the Government as the development and delivery of the required Contract Deliverable Reports (CDRLs) may be delayed, which may result in non

- fulfillment of entry criteria for CPR and ultimately, and delay the delivery schedule for the SAVT modifications.
AR Tab 16 at 1242. And so, t he record evidence shows that the Marine Corps ultimately
determined that the “

proposed labor mix and hours are likely to result in successful performance of the PWS requirements .” Id. (emphasis original). 6 Given this evidence in the administrative

6 The TET also determined that: [I] t appears that Riptide is proposing to perform certain work faster than t he [* * *] period of performance, which, if true, might be considered beneficial to the Government. However, other than date references in Riptide’s proposal (in Riptide’s TO 0002 Summary, Riptide provides a breakout for [* * *] ), Riptide does not describ e an approach that would achieve those results. So, for example, the TET did not identify a section of the proposal that described how Riptide would concurrently perform tasks. Because Riptide does not explicitly propose to complete Task Order 0002 tasks in an [* * *] , nor is this explained elsewhere in Riptide Volume II, Section 1 or Section 2 proposal, this leaves the TET with18

record, MES has not shown that the administrative record is insufficient with respect to the Marine Corps’ evaluation of Riptide’s proposed accelerated schedule for performance. State
Farm Mut. Auto Ins. Co. , 463 U.S. at 43.

C. The Marine Corps Reasonably Evaluated Riptide’s Proposal MES’s objections to the Marine Corps’ evaluation of Riptide’s proposal with regard s to the Technical Approach F actor are also unsubstan tiated by the record evidence. In this regard, MES challenges the Marine Corps’ decision t o award the SAVT Contract to Riptide because
, Riptide did not propose using the entire 18 months of performance for Task Order 2 and Riptide
did not explain its proposed accelerated schedule. See Pl. Mem. at 16, 20. MES also argues that
the Marine Corps treated other offerors who proposed an accelerated sc hedule differently than Riptide

. See Pl. M em. at 25. For the reasons discussed below, MES’s claims lack evidentiary support.

1. The RFP D oes Not Require That

Offerors Use All 18

- Months For Performance First, t he record evidence in this matter does not support MES’s claim that the RFP require s that offerors propose a schedule that utilize s the entire 18

- month period of performance
for the SAVT Contract . AR Tab 1 at 163, 536, 541

. In this regard, i t is undisputed in this matter
that t he RFP provides that : “The Period of Performance [of the SAVT Contract] will end 18 months after Task Order 002 date of award.” Id. at 163. While this language clearly establishes
an 18

- month period to complete performance, th e language in the RFP does not expressly require that offerors use the entire 18 months of performance to satisfy the RFP’s requirements. Id. at 163. In fact, as t he government correctly argues i n its cross

- motion for judgment upon the
administrative record
, the 18 month period of performance under the terms of the RFP represents an end date for completing performance of the SAVT Contract

. See Def. Mot. at 29. And so
, the
Court reads the RFP to provide that the offerors have up to 18 months to complete performance
of the SAVT Contract and that a shorter period of performance would not run afoul of the terms
of the RFP.

an ambiguity that should be clarified, if applicable, at a Post Award Conference.
AR Tab 16 at 1242.19

The Court’s reading of the RFP is reinforced by the questions and answers ex changed between Riptide and the Marine Corps during the solicitation process. Specifically, the record
evidence shows that Riptide submitted a request for clarification regarding the performance period for the RFP stating that : “ [i] t is unclear if [the pe rformance period is] supposed to be for the duration of the 4 modification activities only or for the full 5 y ear [period of performance ]

. ”
AR Tab 1 at 536. T he Marine Corps responded to Riptide’s question by stating that the performance period for the S AVT Contract is “th e duration of the modifications ” for Task Order
2

. Id. ; AR Tab 2 at 592. As the government persuasively argues, the period of time required to complete the modifications required under Task Order 2 could be less than 18 months. Def.
Mot. at 29. And so
, the Marine Corps’ answer that the performance period for the SAVT Contract corresponds to the time needed to complete the required modifications shows that there is no requirement in the RFP that of ferors use the entire 18

- month period to complete performance of the SAVT s ystem modifications

. 7

2. The Marine Cor ps Reasonably Evaluated Riptide’s Proposal Under The Technical Approach Factor
Because the Court does not read the RFP to require that Riptide an d other offerors perform during all 18 months of the performance period for the SAVT Contract , MES’s claim that the Marine Corps erred by failing to assign a material deficiency under the Technical Approach Factor to Riptide’s proposal due to Riptide’s pro posed accelerated schedule is similarly unsubstantiated by the record evidence. Pl. M em. at 17

- 18. As discussed above, the
RFP and the Marine Corps’ responses to questions during the procurement process make clear that the performance period for the SAVT Contract is a period of up to 18 months. AR Tab 1 at
163. Because t here is no requirement in the RFP that offerors use the entire 18

- month period to complete performance , MES has not shown that the Marine Corps erred in evaluating Riptide’s proposal under the Technical Approach Factor.

7 This reading of the RFP is also supported by evidence in the administrative record regarding the schedule that various offerors proposed. See generally AR Tab 16. Four offerors , including Riptide, proposed either [* * *] or [* * *] month periods of performance. See AR Tab 16 at 1217, 1241, 1265

- 66, 1290

- 91.20 3. Riptide Had No Obligation To Explain Its Proposed Schedule For these same reasons, MES’s claim that Riptide was required to explain its proposed
accelerated schedule for performing the SAVT Contract is also without merit

. T he
administrative record makes clear that Riptide and other offerors had no obligation to explain the schedules in their proposals. In this regard , the RFP provide s that : The Offeror shall complete a staffing plan for Task Orders 0001 a nd 0002 in spreadsheet format

. . . . T he spreadsheet shall include

. . . . [t] he number of hours to be performed for each labor category for the Offeror

. . . allocated per month across a cal endar year.
AR Tab 1 at 47

- 48 . And so, the RFP requires only that offerors provide a staffing plan and the number of hours to be performed for each labor category contemplated by the RFP with respect to the performance schedule

. Id

. Given this, MES’s claim that Riptide had an obligation to explain its proposed acc elerated schedule is refuted by the plain terms of the RFP.
MES’s claim is also called into doubt by the evaluation criteria for t he Technical Approach Factor under the RFP

. T he RFP provides that the Marine Corps would evaluate the Technical Approach Fac tor based upon the following criteria:

• [W]hether the proposed labor categories are appropriate to perform the PWS,

• [W]hether the proposed combination of hours and labor categories logically aligns to the PWS requirements, and

• Whether the proposed labor mi x and hours are likely to result in successful performance of the PWS requirements.

Id. at 57. Notably, n one of these evaluation criteria require an explanation of the length of the proposed schedule of performance

. In addition, t he administrative record shows that the Marine Corps appropriate ly evaluated Riptide’s proposal based upon the aforementioned evaluation criteria for the Technical Approach Factor

. Specifically, t he record evidence shows that the Marine Corps’ TET carefully reviewed Riptid e’s proposed labor categories and hours and determined that Riptide’s proposal

was “Acceptable

- LOW Risk” under the Technical Approach Factor. AR Tab 16 at 1225
, 1240

- 42. The administrative record also shows that, i n evaluating Riptide ’s proposed labor categories,
the TET found that:21

Based on the associated technical approach, the labor categories proposed by Riptide reflect the expected competencies and skill sets required to successfully perform the requirements of TO 0002 PWS.

Id. at 1241. Similarl y, in its evaluation of Riptide ’s proposed combination of hours and labor categories, the Marine Corps’ TET determined that:
Based on the allocation of the hours assigned to each labor category per month, and the associated technical approach, the hours a nd labor categories are not logically aligned and commensurate to the PWS requirements.

. . . However, Riptide does propose various labor categories which may have the requisite skills to provide the [* * *] who likely would be able to prepare the required Contract Deliverable Reports

. Id. at 12 41

- 42.
A careful review of the administrative record also shows that the Marine Corps also considered the impact of Riptide’s proposed accelerated schedule on successful performance

. T he TET determined that :
[I] t appears that Riptide is proposing to perform certain work faster than the expected 18

- month period of performance, which, if true, might be considered beneficial to the Government. However, other than date references in Riptide’s proposal (in Riptide’s TO 0002 Summary, Riptide provides a breakout [* * *] ), Riptide does not describe an approach that would achieve those results. So, for example, the TET did not identify a section of the proposal that described how Riptide would concurrently perform tasks. Because Riptide does not explicitly propose to complete Task Order 0002 tasks in [* * *] month period, nor is this explained elsewhere in Riptide Volume II, Section 1 or Section 2 proposal, this leaves the TET with an ambiguity that should be clarified, if applicable, at a Post Award Conference.

Id. at 1242. And so, the TET report and other evidence in the administrative record makes clear that the Marine Corps reasonably evaluated Riptide’s proposal
, based upon the evaluation
criteria for the Technical Approach Factor
, as required under the RFP.

4. MES’s Unequal Treatment Claim Is Unsubstantiated
MES’s claim that the Marine Corps treated certain offerors unequally with respect to their proposed schedules for performing the SAVT Contract is similarly unsub stantiated by the
record evidence. Pl. M em. at 25

- 27 . In this regard, MES argues that the Marine Corps engaged in unequal treatment of offeror s because the agency assigned a deficiency under the Technical Approach Factor to the proposals submitted by two other offerors that proposed schedules for22

completing performance of the SAVT Contract in less than 18 months

— [* * *]

. Id. But, a careful review of the administrative record shows that the Marine Corps did not assign a deficiency to the se proposals beca use of the accelerated schedules put forward by these offerors

. Rather, the record evidence makes clear that the Marine Corps’ TET assigned a deficiency to [* * *] proposal because it concluded that [* * *] “ [did] not provide sufficient labor categories or labor hours to successfully perform” and that the g overnment “ was unable to understand the proposal.” AR Tab 16 at 1283. The administrative record also shows that the Marine Corps’ TET assigned a deficiency to [* * *] proposal because the agency found that

“ [* * *] proposal does not demonstrate an understanding of the RFP requirements.” Id. at 1256. Given this evidence, the administrative record simply does not support MES’s claim that the Marine Corps failed to treat [* * *] equally to Riptide with respect to the evaluation of the schedules proposed by these offerors

.

5. MES Has Not Shown That The Marine Co rps Awarded The SAVT Contract To Riptide With The Intent To Modify
MES’s claim that the Marine Corps awarded the SAVT Contract to R iptide with the intent to later modify Riptide’s proposal also lacks support in the administrative record. Pl.
Re s p. at 21. MES argues in its memorandum in support of its motion for judgment upon the
administrative record that the Marine Corps’ determina tion that “Riptide’s proposal has an ambiguity that should be clarified , if applicable, at a Post Award Conference” should be interpreted to mean that Riptide would be permitted to make changes to its proposal after the
award of the SAVT Contract

. Id. ; AR Tab 16 at 1242. MES’s claim is belied by the plain terms of the RFP. Indeed, a review of the
administrative record shows that t he RFP expressly allows for the post

- award conference
referenced in the Marine Corps ’ statement

. Specifically , the RFP provides that “[w]ithin 30 days of the start of performance, the awardee shall organize a Post Award Conference to be attended by the Contracting Officer, [Contracting Officer’s Representative] and contractor personnel to reconcile pe rformance requirements

. . . . ” AR Tab 1 at 11. And so, the Marine Corps’ decision to address the noted ambiguity in Riptide’s proposal during a post award conference is consistent
with the terms of the RFP

. Id.23

D. The Government Conducted A Reasonable Best Value Determination
The Court is also unpersuaded by MES’s argument that the Marine Corp s conducted an
irrational best value determination during the evaluation process for the SA V T Contract. As discussed above, the record evidence shows that the Marine Corps r easonably and equally
evaluated al l responsive proposals for the SAVT Contract pursuant to the terms of the RFP, and that the agency ultimately determined that Riptide’s proposal offered the best value to the government. See generally AR Tab 18. The Marine Corps’ best value determination is well

supported by the administrative record

. In this regard, t he agency’s best value determination is desc ribed in detail in the SSA
Memo , the TET report and the PPET report developed during the evaluation proces s for the
SAVT Contract

. See generally id. ; AR Tab 16

. Specifically , the record evidence shows t hat the Marine Corps conducted its best value determination by comparing the proposals submitted by MES and Riptide. AR Tab 18 at 1298. Because the evaluati on ratings for the se two proposals were very similar for the three non

- price factors
, the Marine Corps properly determined that price became increasingly more important to determine the overall best value to the government.
See AR Tab 1 at 56.

T here is no dispute in this matter that MES ’s proposed price of $3,191,228 was higher that Riptide’s proposed price of $2,818,414. AR Tab 18 at 1299. And so, the agency’s best
value determination that Riptide offered the lowest total evaluated price is fully cons istent with the terms of the RFP, which provides that “[t]he [RFP’s] non

- price factors, when combined, are significantly more important than price,” but “as non

- price factors qualitative distinctions become closer, price increases in importance.” AR Tab 1 at 56. Given this, the Court will not set aside the agency’s sound determination. See Banknote Corp. of Am. v. United States , 365 F.3d 1345, 1355

- 56 (Fed. Cir. 2004).

E. MES Has Not Shown That It Is Entitled To Injunctive Relief
As a final matter, MES has not demonstrated that it is entitled to the injunctive relief that
it seeks in this matter . A s discussed above, MES has not prevailed upon the merits of any of its claims challenging the Marine Corps’ evaluation process for the SAVT Contract . It is well

established that a plaintiff that has not actually succeeded upon the merits of its claims cannot prevail upon a request for injunctive relief. Argencord Mach. & Equip., Inc. v. United States , 6824

Fed. Cl. 167, 176 (2005). And s o , th e Court must DENY MES’s request for injunctive relief in
this matter

.
V. CONCLUSION
In sum, MES has not shown that any of its claims regarding the Marine Corps ’ evaluation process for the SAVT Contract are supported by the administrative record. Rathe r, the record evidence shows that the Marine Corps reasonably evaluated Riptide’s proposal for this contract, that the Marine Corps treated all responsive offerors equally with respect to the schedule for completing performance, and that the Marine Corps m ade a sound best value determination to award the SAVT Contract to Riptide. While MES may understandably disagree with the Marine Corps’ decision to award the SAVT Contract to Riptide, it simply has not shown that the agency’s evaluation process and award decision were irrational or contrary to the terms of the
RFP. MES has shown, however, that it is appropriate to supplement the court record with the
Declaration of Naren Shahani.
And so, for the foregoing reasons, the Court:

1. GRANTS MES’s motion to su pplement the court record;

2. DENIES MES’s motion for judgment upon the administrative record;

3. GRANTS the government’s and Riptide’s cross

- motions for judgment upon the administrative record; and

4. DISMISSES the complaint.
The Clerk shall enter judgment ac cordingly.
Each party shall bear their own costs.
Some of the information contained in this Memorandum Opinion and Order may be considered protected information subject to the Protective Order entered in this matter on July 23, 2018. This Memorandum Opinion and Order shall therefore be filed UNDER SEAL

. The parties shall review the Memorandum Opinion and Order to determine whether, in their view, any information should be redacted in accordance with the terms of the Protective Order prior to publication. The parties shall FILE a joint status report iden tifying the information, if any, that25

they contend should be redacted, together with an explanation of the basis for each proposed
redaction on or before January 3, 2019

. IT IS SO ORDERED.

s/ Lydia Kay Griggsby LYDIA KAY GRIGGSBY Judge