In the United States Court of Federal Claims

No. 15-111C

(Filed Under Seal: May 18, 2015)

(Reissued for Publication: May 27, 2015)1

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Post-Award Bid Protest; Navy

Procurement for NSA Bethesda and 

Walter Reed Janitorial and Custodial 

Services; Time for Challenging an 

Agency’s Corrective Action Decision; 

Discretion in Performing Best Value 

Evaluation; Rational Basis Standard; 

Judgment on the Administrative Record.

*

NVE, INC., *

*

 Plaintiff, *

*

v. *

*

THE UNITED STATES, *

*

 Defendant,

and

ACE MAINTENANCE & SERVICES, INC.,

 Defendant-Intervenor.

*

*

*

*

*

*

*

*

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Keith L. Baker, Barton, Baker, Thomas & Tolle, LLP, McLean, Virginia for Plaintiff.

Alexis J. Echols, Trial Attorney, with whom were Benjamin C. Mizer, Assistant Attorney 

General, Robert E. Kirschman, Jr., Director, Claudia Burke, Assistant Director, U.S. 

Department of Justice, Civil Division, Commercial Litigation Branch, Washington, D.C., 

and Ann L. Giddings, NAVFAC, Of Counsel, for Defendant.

Adam K. Lasky, Oles Morrison Rinker & Baker LLP, Seattle, Washington for Intervenor. 

 

1 The Court issued this opinion under seal on May 18, 2015 and gave the parties until May 26, 2015, to 

submit any proposed redactions of competition-sensitive, proprietary, confidential, or other protected 

information. The parties submitted their proposed redactions, which have been accepted by the Court. 

Redactions are indicated by [* * *]. The Court also corrects a typographical error made on page 8 of the 

opinion. 
2

OPINION AND ORDER

WHEELER, Judge.

In this bid protest, Plaintiff NVE, Inc. (“NVE”) challenges a contract award by the 

Naval Facilities Engineering Command (“NAVFAC”) to ACE Maintenance & Services, 

Inc. (“ACE”) for janitorial and custodial services at the Naval Support Activity medical 

facility in Bethesda, Maryland (“NSA Bethesda”). This facility includes the Walter Reed 

National Military Medical Center (“Walter Reed”). NVE’s protest concerns the agency’s

third round of proposal evaluations, following two protests at the Government 

Accountability Office (“GAO”) and agency corrective action decisions in response to the

protests. 

In the first round of proposal evaluations, NAVFAC determined that NVE’s 

proposal offered the best value to the Government and the agency awarded a contract to 

NVE on February 28, 2014. ACE and another offeror, Fresh Air Duct Cleaning, LLC 

(“Fresh Air”) protested this award at the GAO on multiple grounds, including that the 

agency failed to engage in meaningful discussions. Believing it had not engaged in 

meaningful discussions, NAVFAC took corrective action, and the GAO dismissed both 

protests as moot. The agency then reopened discussions and reevaluated the offerors’ 

proposals. Following the reevaluation, NAVFAC found ACE to be the apparent successful 

offeror. NVE protested this award at the GAO and the agency once again decided to take 

corrective action. After another round of proposal evaluations, NAVFAC again 

determined ACE to be the successful offeror and awarded ACE the NSA Bethesda contract 

on January 22, 2015. 

NVE protested the award to ACE at this Court on February 3, 2015. The Court 

permitted ACE to intervene on the side of Defendant. The parties filed cross-motions for 

judgment on the administrative record and the Court heard oral argument on May 5, 2015. 

The Court finds that NVE’s challenges to NAVFAC’s corrective action decisions

after submitting a proposal for reevaluation are waived. An offeror cannot fully participate 

in a second round of proposal submissions and then later challenge the agency’s corrective 

action decision. Instead, the law requires NVE to submit its challenges to an agency’s 

corrective action before the due date for proposal resubmission. Blue & Gold Fleet, L.P. 

v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007). NVE’s other arguments lack merit. 

The agency’s evaluation of proposals and its best value determination during the third 

round of proposal evaluations were rational. Even if the agency’s evaluation was not 

entirely rational, NVE suffered no prejudice. NVE’s price was significantly higher than 

ACE’s, and NAVFAC was justified in selecting the lower-priced proposal if it found that 

the differences in the non-price technical factors did not justify a [* * *] price premium. 
3

Accordingly, for the reasons explained below, Plaintiff’s motion for judgment on the 

administrative record is denied. Defendant’s and Intervenor’s cross-motions for judgment 

on the administrative record are granted.

Factual Background2

NAVFAC issued a solicitation requesting proposals for a firm fixed-price indefinite 

delivery/indefinite quantity (“IDIQ”) contract to perform janitorial and custodial services 

at NSA Bethesda on June 11, 2013. Administrative Record (“AR”) Tab 1, at 1, 6. NSA 

Bethesda includes Walter Reed, the largest medical complex within the Department of 

Defense, with more than 2.4 million square feet of clinical space. Walter Reed provides

care to approximately one million beneficiaries each year. NSA Bethesda’s base also 

includes the President’s Hospital which provides care for members of Congress and senior 

government officials. AR 11.

The solicitation specified that the contract was a small business set-aside for a oneyear base period with four one-year option periods, not to exceed a total of five years. AR 

6. The contract required the awardee to “furnish all labor, supervision, management, tools, 

materials, equipment, facilities, transportation, incidental engineering, and other items 

necessary” to provide the specified janitorial and custodial services. AR 10. The 

solicitation also stated that the “Service Contract Act (SCA) Wage Determination and a 

Collective Bargaining Agreement [(CBA)] are included in this solicitation.” AR 6. 

A. Solicitation Requirements and Evaluation Factors

Under the terms of the solicitation, the contract award would be made to the offeror 

whose proposal offered the best value to the Government. AR 170. The following nonprice factors were evaluated as the basis for a best value tradeoff analysis: (1) 

Technical/Management Approach; (2) Corporate Experience; (3) Safety; and (4) Past 

Performance on Recent, Relevant Projects. Past Performance was the most important nonprice factor. AR 170, 181. The technical factors and the Past Performance factor, when 

combined, were equal in importance to price. AR 170, 181. The solicitation also stated 

that “[t]he importance of price [would] increase if the Offerors’ non-cost/price proposals 

are considered essentially equal in terms of overall quality, or if price is so high as to 

significantly diminish the value of a non-cost/price proposal’s superiority to the 

Government.” AR 181. 

 

2 The facts in this decision are taken from the administrative record. The pages in the administrative record 

are numbered in sequence, and the documents are divided by tabs. The Court’s citations to the 

administrative record generally are to the page numbers, except that large documents are referenced by the 

tab number. 
4

For Factor 1, Technical/Management Approach, the agency assigned each offeror

an adjectival rating of “Outstanding, Good, Acceptable, Marginal, or Unacceptable.” AR 

171. A rating of “Outstanding” meant the proposal met the solicitation requirements and 

demonstrated an “exceptional approach and understanding of the requirements” with very 

low risk of unsuccessful performance. A rating of “Good” meant the proposal met the 

requirements and demonstrated “a thorough approach and understanding of the 

requirements” with low risk of unsuccessful performance. Id. The solicitation called for 

a transition plan that would accomplish phase-in within 60 days.3 AR 182. 

For Factor 2, Corporate Experience, the solicitation required that each offeror

submit three projects showing “Recent, Relevant corporate experience.” “Recent, Relevant 

corporate experience” is defined as “[e]xperience of the team with respect to the proposed 

responsibility regarding hospital/healthcare and commercial janitorial services of similar 

size, scope, and complexity to this requirement performed within the last five years 

preceding the release date of the solicitation.” AR Tab 2, at 208. Similar size meant the 

project was for “$10 [million] or greater during any one contract period under one 

contract.” AR Tab 3, at 213. Each offeror would then be assigned a relevancy rating: 

“Very Relevant, Relevant, Somewhat Relevant, or Not Relevant” based upon the breadth 

and depth of experience in projects of similar size, scope and complexity submitted. AR

Tab 1, at 172. A rating of “Very Relevant” meant the “[p]resent/past performance effort 

involved essentially the same scope and magnitude of effort and complexities th[e] 

solicitation required.” A rating of “Relevant” meant the “present/past performance effort 

involved similar scope and magnitude of effort.” An offeror received a rating of 

“Somewhat Relevant” if the “present/past performance effort involved some of the scope 

and magnitude of effort.” Id. 

Factor 3, Safety, was comprised of three elements: Experience Modification Rate 

(“EMR”); Occupational Safety and Health Association (“OSHA”) Days Away from Work, 

Job Restriction, or Transfer (“DART”) rate; and Technical Approach to Safety. AR 173. 

The solicitation directed the evaluators to consider the three elements collectively when 

assigning the overall adjectival rating. It also provided the following guidelines to the 

evaluators of what EMR and DART rates corresponded to one of the following risk ratings:

“Very Low Risk, Low Risk, Moderate Risk, High Risk, or Extremely High Risk.” Id. 

 

3 The Agency later amended the transition period to 30 days and offerors submitted revised transition plans. 

AR Tab 11, at 302. 
5

Risk EMR Rate

Very Low Risk Less than 0.6

Low Risk From 0.6 to less than 0.8

Moderate Risk From 0.8 to 1.0

High Risk Greater than 1.0 to 1.1

Extremely High Risk Greater than 1.1

Risk DART Rate

Very Low Risk Less than 1.0

Low Risk From 1.0 to 1.99

Moderate Risk From 2.0 to 2.99

High Risk From 3.0 to 4.0

Extremely High Risk Greater than 4.0

Id. Like the Corporate Experience evaluation, the first aspect of the Past 

Performance evaluation was based upon relevancy considering the size, scope and 

complexity of the projects submitted. AR 173-74 (offerors would receive an adjectival 

rating of “Very Relevant, Relevant, Somewhat Relevant, or Not Relevant”). This factor, 

however, also included a performance confidence assessment to determine how well the 

contractor performed on previous projects. Each offeror was then assigned one of the 

following adjectival ratings: “Substantial Confidence, Satisfactory Confidence, Limited 

Confidence, No Confidence, or Unknown Confidence.” A rating of “Substantial 

Confidence” meant the Government had a “high expectation that the offeror [would] 

successfully perform the required effort.” A rating of “Satisfactory Confidence” meant the 

“Government has a reasonable expectation that the offeror will successfully perform the 

required effort.” AR 174-75. 

For the price proposal, NAVFAC requested that the offerors provide: (a) “a 

narrative description of the price proposal and any underlying assumptions that influenced 

its preparation”; (b)“a narrative detailing the linkage of the proposed price with the 

proposed level of effort proposed in Factor 1 – Technical/Management Approach”; (c) “a 

narrative of the rationale for the inflation rates applied to each of the option years pricing”; 

and (d) an Excel spreadsheet providing the detailed basis for the prices listed in the Exhibit 

Line Item Numbers (“ELINs”) so that the Government “may gain insight into unit prices 

in order to validate them.”4 The solicitation also specified that the Government would 

“evaluate the consistency of the linkage of the proposed price with the proposed level of 

effort proposed in Factor 1 – Technical/Management Approach.” AR 182. NAVFAC 

would then evaluate the total price to ensure that it was fair and reasonable. Id.

 

4 The solicitation also requested offerors, as part of their price proposal, to complete Section B, Contract 

Line item Numbers (CLINs) 7000 through 9004 and to complete Section J, ELIN Pricing, Attachment J0200000-06 ELINS.xls. AR Tab 1, at 182.
6

B. First Round of Proposal Evaluations

Offerors submitted their initial proposals in August 2013. See, e.g., AR Tabs 13-14

(ACE’s and NVE’s initial proposal submissions). NAVFAC received timely proposals 

from seven offerors, including NVE and ACE. AR Tab 17, at 977. On February 28, 2014, 

the Source Selection Authority (“SSA”) concluded that NVE’s proposal offered the best 

value to the Government and made an award to NVE. AR Tabs 30-31A (“NVE’s proposal 

clearly demonstrates superior experience through its successful management and execution 

of all projects submitted . . . . Additionally, NVE’s proposal provides a vastly superior 

technical approach and management plan”). ACE and Fresh Air protested the award at the 

GAO, alleging that NAVFAC made errors in its proposal evaluations, failed to conduct 

meaningful discussions, and its short 30-day transition plan was unduly restrictive of 

competition in favor of the incumbent, NVE. AR Tabs 49, 53. 

NAVFAC voluntarily took corrective action, believing that it had not engaged in 

meaningful discussions. AR Tabs 50, 54. The agency also revised the solicitation to amend 

the transition period from 30 days back to 60 days. See AR Tab 1, at 182; AR Tab 12, at 

303-05. Accordingly, the GAO dismissed the ACE and Fresh Air protests as moot. AR 

Tabs 52, 57. On March 13, 2014, the agency issued a stop work order to NVE requiring 

NVE to cease all work under the contract awarded on February 28, 2014, “until further 

notice.” AR Tab 60. On April 2, 2014, NAVFAC de-obligated funds under NVE’s 

contract. AR Tabs 61-63. 

C. Second Round of Proposal Evaluations

Following GAO’s dismissal of the ACE and Fresh Air protests, NAVFAC reopened 

discussions with the four offerors in the competitive range: ACE, NVE, Fresh Air and Zero 

Waste Solutions, Inc. AR Tabs 32-33, 39. During the discussions, NAVFAC addressed 

weaknesses in ACE’s initial proposal, including its transition plan and corporate 

experience. AR Tab 33a. Offerors submitted final proposal revisions on June 23, 2014. 

AR Tab 35, at 1592 (ACE); AR Tab 36, at 1904 (NVE). ACE included a transition plan 

showing that phase-in would be completed within 60 days as required by the solicitation. 

AR Tab 35, at 1603. In its initial proposal, ACE had proposed [* * *] days, with transition 

for a significant portion of the buildings to be completed within [* * *] days. AR Tab 13, 

at 317. This transition plan resulted in the agency assigning a significant weakness to ACE 

on Factor 1 because the agency considered the phase-in period to be unrealistically 

expeditious. AR Tab 21, at 1319. 

The Technical Evaluation Team (“TET”) continued to assign ACE a weakness for 

its phase-in plan, however, due to a clerical error in ACE’s transition plan, showing that 
7

ACE planned for a [* * *]-day transition period, instead of the required 60 days. AR Tab 

37 at 2059 (stating that “[o]fferor[] acknowledges the 60 day phase in period, but their 

transition plan shows that it will take [* * *] days to fully assume all locations listed in the 

[solicitation]”). After ACE clarified in writing that its phase-in start date was July 3, 2014 

and not August 1, 2014 as listed in its transition plan chart, the Source Selection Evaluation 

Board (“SSEB”) removed the weakness the TET had assigned to ACE, and changed its 

rating on Factor 1 from Acceptable to Good. AR Tab 39, at 2079. This change lifted 

ACE’s overall technical rating from Acceptable to Good. Id. In its final proposal revision, 

ACE also provided additional information on its example projects for the Corporate 

Experience evaluation factor. The additional information demonstrated that ACE’s 

example projects met the solicitation’s $10 million size-relevancy standard. ACE also 

substituted one of its example projects for another that more clearly met the solicitation’s 

size standard. AR Tab 33a, at 1585-87. This change removed the significant weakness 

assigned in the first round of proposal evaluations and ACE received a rating of “Very 

Relevant/Good” for the Corporate Experience Factor. AR Tab 37, at 2060-61. 

In reevaluating NVE’s proposal, the agency eliminated two of the four strengths on 

Factor 1 that NVE had received in the first round of the proposal evaluations, which 

lowered its rating on Factor 1 from “Outstanding” to “Good.” Compare AR Tab 30, at 

1550-1551 with AR Tab 37, at 2047. However, the Overall Technical Rating of NVE’s 

proposal remained “Good.” AR 2046. 

After evaluating the final revised proposals, NAVFAC determined that ACE’s 

proposal offered the best value. See AR Tab 40, at 2085. The agency notified NVE on 

July 23, 2014 that ACE was the apparent successful offeror. AR Tab 40a. NVE protested 

the award to the GAO alleging that the agency did not identify additional strengths in 

NVE’s technical proposal which would have resulted in a technical rating of 

“Outstanding”, did not validate unit prices, or evaluate the linkage between the offerors’ 

proposed prices with the level of effort proposed in Factor 1 as required by the solicitation. 

AR Tab 41, at 2088. Following the protest, NAVFAC determined that a reevaluation of 

the final revised proposals was necessary, and informed GAO that it again intended to take 

corrective action. Accordingly, on September 9, 2014, the GAO dismissed NVE’s protest. 

AR Tab 43. NVE also protested the award to ACE at the U.S. Small Business 

Administration (“SBA”), challenging ACE’s size status due to its use of a non-small 

business subcontractor, J&J Maintenance, Inc. The SBA denied NVE’s size protest and 

the SBA Office of Hearing and Appeals affirmed (“OHA”). Notice of SBA OHA Decision 

No. 5638, Dkt. No. 21.
8

D. Third Round of Proposal Evaluations

In reevaluating the offerors’ final revised proposals, the SSEB reviewed the reports 

of the TET and the price evaluator. AR Tab 46, at 2147. The Board then summarized the 

findings of the TET and the price evaluator as follows: 

NVE ACE

Factor 1: 

Technical/Management 

Approach

Good Good

Factor 2: Corporate 

Experience

Very 

Relevant/Outstanding Very Relevant/Good

Factor 3: Safety Acceptable Good

Overall Technical Rating Good Good

Factor 4: Past Performance Very Relevant/Substantial

Confidence

Very 

Relevant/Satisfactory

Confidence

Price [* * *] $69,698,540

AR 2147-48. The SSEB considered the technical ratings of each offeror along with 

the prices submitted and conducted a comparative analysis to arrive at its recommendation. 

AR 2148. In considering the offerors’ proposals, the SSEB concluded that ACE’s and 

NVE’s proposals were superior to the other offerors under the technical factors. It found 

ACE’s and NVE’s proposals “somewhat comparable” under the past performance factors. 

The SSEB recommended award to ACE because it would “save the government more than 

[* * *] million dollars over the life of the contract,” and there was “no technical advantage 

of NVE’s proposal that [was] significant enough to outweigh the considerable price 

premium associated with its proposal.” AR 2150. The SSA agreed, finding that although 

NVE’s non-price proposal rated higher than ACE’s, the benefits did not outweigh the [* * 

*] price differential. Further, it cited concerns with NVE’s proposal on the Safety factor, 

as NVE received [* * *] ratings in both the EMR and DART rates. AR Tab 47, at 2154-

55. 
9

NAVFAC awarded ACE the contract on January 22, 2015. AR Tab 48. NVE filed 

this protest at the Court on February 3, 2015. NVE filed its motion for judgment on the 

administrative record on March 30, 2015. Dkt. No. 53 (corrected). Defendant and 

Defendant-Intervenor filed their cross-motions for judgment on the administrative record 

on April 13, 2015. The Court heard oral argument on May 5, 2015.

Discussion

I. Jurisdiction and Standard of Review

Under the Tucker Act, the Court has jurisdiction over an action by an interested 

party objecting to “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). 

The Court reviews bid protests in accordance with the standards of the Administrative 

Procedures Act (“APA”). Impresa Construzionoi Geom. Domenico Garufi v. United 

States, 238 F.3d 1324, 1332 (Fed. Cir. 2001). Under the APA, agency action shall be set 

aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law.” 5 U.S.C. § 706; see also Impresa Construzioni, 238 F.3d at 1332 (procurement 

decision 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”). 

To prevail, a protestor must not only show a significant error in the procurement process, 

but also that the error prejudiced the protestor. See, e.g., HomeSource Real Estate Asset 

Servs., Inc. v. United States, 94 Fed. Cl. 466, 478 (2010). In a post-award bid protest such 

as this one, the standard requires the plaintiff to demonstrate that there was a “substantial 

chance it would have received the contract award, but for the alleged error in the 

procurement process.” Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 

1319 (Fed. Cir. 2003). 

In a best value procurement, the agency has even greater discretion than if the 

contract were awarded based upon price alone. E.W. Bliss Co. v. United States, 77 F.3d 

445, 449 (Fed. Cir. 1996). For example, in determining the proposal that offers the best 

value to the Government, the “agency has the discretion to select a lower-priced, lowertechnically-rated proposal if it decides that the higher price of a higher-technically-rated 

proposal is not justified.” Blackwater Lodge & Training Ctr., Inc. v United States, 86 Fed. 

Cl. 488, 514 (2009). The agency will be able to demonstrate proper discretion if “it

documents its final award decision and includes the rationale for any business judgments 

and tradeoffs made.” Id.

Review of an agency’s procurement decision is generally limited to the 

administrative record. 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 
10

already in existence”). Unlike a Rule 56 summary judgment motion, the existence of 

genuine issues of material fact does not preclude judgment on the administrative record 

under Rule 52.1. Tech. Sys., Inc. v. United States, 98 Fed. Cl. 228, 242 (2011). Rather, 

the Court’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). 

Under its bid protest jurisdiction, the Court is “empowered to 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). For a 

permanent injunction to issue, the Court considers the following four factors: (1) whether 

plaintiff succeeded on the merits; (2) whether plaintiff will suffer irreparable harm in the 

absence of injunctive relief; (3) whether the balance of hardships to the parties favors 

granting 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). While no 

single factor is dispositive, “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 of injunctive relief.” Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 

701 (2010). Plaintiff must show entitlement to injunctive relief by clear and convincing 

evidence. CSE Constr. Co. v. United States, 58 Fed. Cl. 230, 261 (2003). 

II. Analysis

NVE’s challenges to NAVFAC’s award of the NSA Bethesda contract to ACE can 

be summarized in three broad categories: (1) the agency’s decision to reopen discussions 

with offerors in the competitive range after it already had awarded the contract to NVE; 

(2) the propriety of the agency’s third evaluation of the offerors’ proposals; and (3) the 

SSA’s final best value determination. For the reasons explained below, none of Plaintiff’s 

challenges has merit. 

A. NVE Waived its Right to Challenge the Agency’s Corrective Action 

Decision.

As an initial matter, the Court finds that NVE waived its right to challenge the 

agency’s decision to take corrective action and to reopen discussions and reevaluate 

proposals with offerors in the competitive range after NAVFAC already awarded NVE the 

NSA Bethesda contract. A party who participates in a second round of proposal 

submissions rather than protesting cannot subsequently challenge an agency’s decision to 

reopen discussions or reevaluate proposals. See Sheridan Corp. v. United States, 95 Fed. 

Cl. 141, 149-150 (2010) (“were the Court to dismiss Sheridan’s claims as not ripe for 

review, the current protest grounds later could be challenged as untimely if Sheridan does 
11

not prevail during the resolicitation process”); see also Cubic Def. Sys. v. United States, 

45 Fed. Cl. 450, 461 (1999) (“Cubic failed to complain of this alleged error at the 

appropriate time – when the Air Force continued to allow Metric to compete, or at least 

prior to submitting its final offer”). Vendors cannot “sit on their rights to challenge what 

they believe is an unfair solicitation, roll the dice and see if they receive award and then, if 

unsuccessful, claim the solicitation was infirm.” Blue & Gold Fleet, 492 F.3d at 1313. 

Here, once NAVFAC notified NVE that it would reopen discussions with offerors 

in the competitive range, the agency’s proposed corrective action became ripe for protest. 

See AR Tab 50. Thus, if NVE had concerns with the agency’s proposed corrective action, 

the time to protest was before the revised proposals were due. See Cubic Def. Sys., 94

Fed. Cl. at 461. NVE was not permitted to wait for the agency to complete the corrective 

action to see if it received the award. Blue & Gold Fleet, 492 F.3d at 1313. Plaintiff fully 

participated in the second round of proposal evaluations instead of protesting the agency’s 

actions. See AR Tab 36, at 1904. Accordingly, NVE’s challenges regarding NAVFAC’s

decision to take corrective action are waived. 

B. The Agency’s Third Evaluation of Proposals Was Rational and Did Not 

Prejudice NVE. 

The Court next examines NVE’s arguments regarding the agency’s third round of 

proposal evaluations. Specifically, NVE contends that NAVFAC’s reevaluation of the 

proposals was flawed because: (1) the agency did not “evaluate the consistency of the 

linkage of ACE’s proposed price with the level of effort proposed in Factor [1] –

Technical/Management Approach” as required by the solicitation; (2) the agency did not 

validate the unit prices as required by the solicitation or it would have determined that ACE 

did not price its proposal in accordance with the CBA wage rates; and (3) the agency 

irrationally, and without explanation, eliminated two strengths from NVE’s proposal on 

Factor 1, Technical/Management Approach and eliminated evaluated weaknesses of 

ACE’s proposal, which raised ACE’s technical ratings. See Pl.’s Mot. for J. on the Admin. 

R. (“Pl.’s MJAR”) at 4, 25-34, Dkt. No. 53.

1. The Agency Properly Evaluated the Consistency of the Linkage Between

ACE’s Proposed Price with its Proposed Level of Effort and Was Not 

Required to Conduct a Price Realism Analysis.

First, NVE argues that NAVFAC did not evaluate the “consistency of the linkage 

of ACE’s proposed price with the level of effort proposed in Factor [1] –

Technical/Management approach.” See Pl.’s MJAR at 13. As support for its argument,

NVE cites a discussion question from the agency to ACE which states “[y]our proposed 

price appears significantly low in relation to your estimated level of effort . . . . Please 
12

review your proposal and explain your execution and pricing strategy.” Pl.’s MJAR at 15; 

AR Tab 23, at 1347. According to Plaintiff, this discussion question demonstrates that the

agency was aware of ACE’s price being too low compared to its proposed number of Full 

Time Equivalent (“FTE”) personnel. Despite this awareness, NVE asserts that the agency

did not evaluate the consistency of the linkage between ACE’s proposed price and its 

proposed level of effort. Pl.’s MJAR at 15-17. Further, NVE argues that it was irrational 

for the agency to ignore the risk associated with ACE’s proposal since ACE adjusted the

required labor hours per position by the use of a “Productive Factor” that was based on 

ACE’s experiences and efficiencies. Id. at 16-17. 

The Government and ACE claim NVE is arguing that NAVFAC should have 

conducted a price realism analysis to determine if ACE’s price was unreasonably low. See

Def.’s Cross-Mot. for J. on the Admin. R. (“Def.’s MJAR”) at 19-23, Dkt. No. 57; 

Intervenor’s Cross-Mot. for J. on the Admin. R. (“Intervenor’s MJAR”) at 29-33, Dkt. No. 

58. They claim only a price reasonableness analysis was required by the solicitation as this 

was a fixed-price contract and under the terms of the solicitation, a proposal could not be 

rejected for offering a low price. Def.’s MJAR at 19; Intervenor’s MJAR at 30-33; AR 

Tab 1, at 182 (price will be evaluated to determine if it is “fair and reasonable”). 

An agency is required to evaluate proposals only in accordance with the terms of 

the solicitation. See Banknote Corp. of America v. United States, 56 Fed. Cl. 377, 386 

(2003). The Government cannot “rely upon undisclosed evaluation criteria in evaluating 

proposals.” Id. Where an award of a fixed-price contract is contemplated, “a proposal’s 

price realism is not ordinarily considered, since a fixed-price contract places the risk” of 

loss on the contractor. See Acad. Facilities Mgmt. v. United States, 87 Fed. Cl. 441, 466 

(2009) (citing FAR 15.404-1). Thus, for a price realism analysis to apply in a fixed-price 

contract, the solicitation must expressly or implicitly require a price realism analysis for a 

proposal to be rejected for an unrealistically low price. Ceres Envtl. Serv., Inc. v. United 

States, 97 Fed. Cl. 277, 306 (2011). 

The administrative record suggests that NAVFAC evaluated the linkage between 

ACE’s proposed price and proposed level of effort in its Technical/Management approach.

Both NVE and ACE provided a detailed narrative and an Excel spreadsheet with specific 

bases for the prices listed in the ELINs. See AR Tab 1, at 7; AR Tab 35.5, at 1657 (ACE 

states they used a productive hour rate to determine the number of FTEs needed to perform 

the required services), AR Tab 35.9 (ACE’s Excel Spreadsheet); AR Tab 36, at 1922 (NVE 

explains how they calculated the number of FTEs for the required hours of service), AR 

Tab 36.2, at 1929 (NVE’s Excel spreadsheet). The agency also provided a review and 

evaluation of the offerors’ prices in the October 29, 2013 Price Analysis. AR Tab 17, at 

1047 (chart compares offerors’ firm-fixed-price with the number of FTEs proposed). 

Moreover, the discussion question that the agency submitted to ACE regarding its number 
13

of FTEs suggests that the agency at least contemplated the connection between the offerors’

total price with their proposed number of FTEs. See AR Tab 23, at 1347. Finally, nothing 

in the record demonstrates that ACE’s price became inherently risky because it used a 

“Productive Factor” to calculate the required number of FTEs as NVE suggests. The 

Productive Factor was based upon reasonable sources – ACE’s own contract experience 

and the International Sanitary Supply Association (“ISSA”) standards. See AR Tab 1, at 

108 (ISSA provides the “cleaning industry time standards used for estimating/bidding 

projects/jobs/contracts”); AR Tab 13a, at 340-41. NAVFAC reasonably accepted ACE’s 

use of a “Productive Factor” in its price proposal. 

However, even if the agency did not evaluate the “consistency of the linkage”

between ACE’s proposed price and proposed level of effort, NVE was not prejudiced

because ACE’s proposal could not be eliminated for an unrealistically low price. The 

solicitation did not expressly or impliedly state that a price realism analysis would be 

conducted. See, e.g., Ceres Envtl., 97 Fed. Cl. at 306. Indeed, had the agency conducted 

a price realism analysis, an offeror could have challenged the analysis as “arbitrary, 

capricious, or an abuse of discretion” because the agency would be relying upon 

undisclosed evaluation criteria in making its award. See Banknote Corp., 56 Fed. Cl. at 

386. If ACE proposed an unreasonably low price, the risk of loss is on the contractor. It

would be irrational for the agency to reject ACE’s proposed price simply because it was

the lowest when all of the offerors, including NVE, proposed significantly lower prices 

than the Independent Government Estimate by approximately [* * *] percent to [* * *]

percent. AR Tab 44, at 2114 (noting “all four offerors[’] total prices [were] within 8% of 

the average”). 

2. In a Fixed-Price Contract, the Contractor Bears the Risk of Loss for 

Below CBA Wage Rates and Offerors Were Not Permitted to Escalate 

CBA Wage Rates in the Option Years. 

Next, NVE argues that NAVFAC did not “validate the unit prices” of ACE’s 

proposal or it would have “determined that ACE priced the base year of the contract using 

wage rates in effect for October 1, 2013 to September 30, 2014, not wage rates in effect for 

the base year of the contract” and did not escalate wage prices for the option years. See

Pl.’s MJAR at 20, 22-25. The differences between ACE’s and NVE’s proposal on the 

wage rates used for the base year plus option years of the contract make up approximately

$2,600,000 of the more than [* * *] price difference between NVE’s proposal and ACE’s 

proposal. See Report of Jimmy J. Jackson, at 9, Dkt. No. 53-1 (ACE’s price would increase 

by [* * *]). 

Even though ACE and NVE used different CBA wage rates for the base year and 

option years of the contract, it has no effect on the outcome of this protest. First, even if 
14

ACE did not use the correct CBA wage rates in pricing the base year of its contract, this 

fact would only result in a [* * *] price increase to ACE’s contract for the base year. See

id. at 11. There would still be a significant gap between ACE’s proposed price and NVE’s 

proposed price. Such a small increase to ACE’s proposed price likely would not have 

affected the best value determination. In a fixed price contract, the offeror bears the risk 

of using the wrong CBA wage rates, unless it shows an intent not to be bound by the Service 

Contract Act. See K-Mar Indus., Inc. v. United States, 91 Fed. Cl. 20, 22-23 (2010). Here, 

nothing in the administrative record demonstrates that ACE took an exception to the 

solicitation’s CBA wage requirements that would render its bid nonresponsive. 

Further, under the terms of the solicitation, NVE was not permitted to escalate wage 

rates for the option years. See AR Tab 7, at 263 (stating that “[a]pplicable wage 

adjustments will be made in accordance with FAR 52.222-43, Fair Labor Standards Act 

and Service Contract Act – Price Adjustment (Multiple Year and Option Contracts)”); FAR 

52.222-43 (the clause mandates that offerors “not include any allowance for any 

contingency to cover increased costs” for any option year). Even if the escalation was

permitted, or if the agency had evaluated NVE’s price and ACE’s price using identical 

CBA wage ratesfor the base year and all of the option years, NVE could not show prejudice 

because there would still be a significant difference between ACE’s proposed price and 

NVE’s proposed price. Def.’s MJAR at 22-23 (approximately [* * *] difference). Thus, 

NAVFAC would be acting well within its discretion if it determined that a [* * *] price 

difference did not warrant acceptance of an equal or slightly superior technical proposal. 

See Blackwater Lodge, 86 Fed. Cl. at 514.

3. NAVFAC Had a Rational Basis for Changing its Evaluation of NVE’s 

and ACE’s Proposals on the Non-Price Factors. 

Plaintiff also argues that it was irrational for the agency to eliminate two of its 

strengths on Factor 1 while raising ACE’s technical ratings without a documented 

explanation during the reevaluation of the proposals. See Pl.’s MJAR at 25-34. 

Specifically, NVE contends that the agency: (1) should not have removed the weakness 

assessed by the TET for ACE’s phase-in plan; (2) did not provide a rational explanation 

for raising ACE’s relevancy rating on the Corporate Experience factor from “Relevant” to 

“Very Relevant” and raising its Corporate Experience rating from “Marginal” to “Good”; 

(3) did not provide a rational explanation for raising ACE’s Safety rating from 

“Acceptable” to “Good” or explain why NVE’s weakness on the Safety factor became a 

significant aspect of the source selection decision; (4) did not provide a rational explanation 

for raising ACE’s relevancy rating on Factor 4 from “Relevant” to “Very Relevant”; and 

(5) did not provide a rational explanation for raising ACE’s overall technical rating from 

“Satisfactory” to “Good.” Pl.’s MJAR at 30-34.
15

When an agency requests offerors to submit revised proposals, it may reevaluate 

those proposals and modify an offeror’s strengths and weaknesses. See Atlantic Driving 

Supply, Inc. v. United States, 107 Fed. Cl. 244, 261 (2012) (“[C]hanges in opinion between 

the initial evaluation and the reevaluation, and between the individual reviews and the 

consensus, are not unusual and do not indicate any ‘illegitimate’ action on the part of the 

Agency”). Thus, the mere fact that an offeror’s scores changed upon reevaluation does not 

mean an offeror was treated unfairly. See id. 

Here, the agency had a rational basis for improving ACE’s technical scores. The 

discussion questions and responses from ACE resulted in an improved technical proposal 

in the round three proposal evaluations. See, e.g., AR Tab 106, at 3261 (clarifying 

qualifications for key personnel); AR Tab 33a, at 1585-87 (showing that ACE replaced one 

of its projects to meet the $10 million size standard). For example, in the first round of the 

proposal evaluations, the TET assigned ACE a rating of “Somewhat 

Relevant/Unacceptable” on the Corporate Experience factor because it only evaluated one 

project that was worth $5 million as ACE’s proposal exceeded the solicitation’s 125 page 

limit. See AR Tab 17, at 1011. In round three, however, the TET evaluated three projects, 

all of which exceeded $10 million in size. See AR Tab 45, at 2136-37. Similarly, the 

agency rationally changed ACE’s rating on the Safety factor by adhering more closely to 

the definitions in the solicitation. See AR Tab 49, at 2207. Simply because NAVFAC did 

not provide a detailed written explanation comparing the differences between ACE’s round 

one proposal and its round three proposal does not mean it was irrational for NAVFAC to 

improve ACE’s rating on the non-price factors when ACE submitted a superior proposal. 

NAVFAC also acted within its discretion in deciding that two of NVE’s “strengths” 

on Factor 1 no longer qualified as strengths. See Atlantic Driving, 107 Fed. Cl. at 261. 

Moreover, NVE’s argument overlooks that it is the third round of proposal evaluations 

which is at issue here. Its arguments concerning the second round of proposal evaluations 

were waived. See supra, at II.A. During the third round of proposal evaluations, the TET 

assigned NVE a new strength that it was lacking during the round two proposal evaluations. 

Compare AR Tab 37, at 2047 with AR Tab 45, at 2122. The changes in the number of 

strengths assigned to NVE on Factor 1 simply reflect the agency’s change of opinion from 

one evaluation to another. Further, nothing in the record demonstrates that the agency 

improperly based its decision on NVE’s Safety rating. Rather, price appeared to be the 

determinative factor for the agency considering that both offerors submitted sound 

technical proposals. Finally, the agency’s evaluation did not prejudice NVE. NVE’s

overall technical rating remained “Good” throughout all of the rounds of the evaluations

even when it received a rating of “Outstanding” on Factor 1. Compare AR Tab 30, at 1549 

with AR Tab 46, at 2147-48. Accordingly, a rating of “Outstanding” on Factor 1 could not 

have improved NVE’s overall technical proposal to make a meaningful difference in the 
16

best value determination and thereby have given NVE a substantial chance of receiving the 

contract award. 

C. The Agency’s Best Value Determination Was Rational and Did Not 

Prejudice NVE. 

NVE contends that the agency placed too much importance on price in making its

best value determination while deemphasizing the importance of past performance. 

Specifically, NVE points to the SSA’s decision, which stated “[w]ith price being the 

overwhelmingly important aspect of the solicitation (approximately equal to ALL nonprice factors combined), ACE’s proposal clearly demonstrates a better overall value to the 

Government.” AR Tab 47, at 2154. NVE asserts that price was only equal to the non-price 

factors and therefore, could not have been “the overwhelmingly important aspect” of the 

solicitation. See Pl.’s MJAR at 36-37. NVE also takes issue with the agency’s evaluation 

of past performance. First, NVE says the SSEB’s conclusion that ACE and NVE were 

“somewhat comparable” on the Past Performance factor was erroneous as NVE received 

the highest possible Acceptable rating while ACE received the lowest. Pl.’s MJAR at 35-

36; AR Tab 46, at 2150. Second, the SSA did not mention any of the “excellent” and 

“exceptional” evaluations in its tradeoff analysis for NVE’s past performance and 

irrationally adopted the SSEB’s analysis that the two offerors were “somewhat 

comparable” on the Past Performance factor. See Pl.’s MJAR at 35-36.

The Court finds that there was nothing irrational about the SSA’s best value 

determination. NVE misreads the SSA’s analysis regarding price. The SSA recognized 

that price was “approximately equal” to all non-price factors as specified in the solicitation. 

AR Tab 47, at 2154. While the agency might not have chosen the best adjectives to 

describe the importance of price in the tradeoff analysis, this word choice did not mean the

agency’s best value determination was irrational. The SSA appeared to apply the 

appropriate weights to the price and non-price factors in making the best value 

determination. See AR Tab 47, at 2154 (“NVE’s higher rating in corporate experience . . 

. and its substantial confidence rating in past performance does not warrant paying [* * *]

[million] more when ACE has a solid technical proposal at a significantly lower price”). 

Further, the solicitation specified that price would become “increasingly important” if the 

offerors were relatively equal on the non-price factors. Unlike in the first round of proposal 

evaluations, ACE’s overall technical rating improved from “Marginal” to “Good,” the 

same overall technical rating that NVE received. Compare AR Tab 30 with AR Tab 47. 

ACE’s non-price proposal became more comparable to NVE’s non-price proposal even 

though NVE remained superior on the most important non-price factor, Past Performance. 

Thus, NAVFAC acted well within its discretion to choose ACE’s lower-priced proposal

despite NVE’s slightly superior technical proposal. See Blackwater Lodge, 86 Fed. Cl. at 

514. 
17

Finally, there was no prejudice to NVE even if the agency erred by not recognizing 

significant differences between ACE’s proposal and NVE’s proposal on the Past 

Performance confidence assessment. There is no indication that had NAVFAC not deemed 

the two offerors “somewhat comparable” on past performance, the agency would have 

recommended award to NVE, particularly given the stark difference in price between the 

two offerors. NVE cannot overcome its heavy burden to show that the agency acted 

irrationally or that it was prejudiced in this case. 

Conclusion

For the foregoing reasons, Plaintiff’s motion for judgment on the administrative 

record and request for a permanent injunction are DENIED. The Government’s and 

Intervenor’s cross-motions for judgment on the administrative record are GRANTED. 

On or before May 26, 2015 the parties shall carefully review this opinion for 

competition-sensitive, proprietary, confidential or other protected information, and submit 

to the Court proposed redactions to this opinion, if any, before it is released for publication. 

The parties are requested to minimize their requested redactions so that the Court may 

publish as much of the decision as possible. 

IT IS SO ORDERED.

s/ Thomas C. Wheeler

THOMAS C. WHEELER

Judge