In the United States Court of Federal Claims

Nos. 20-575C and 20-609C (Consolidated)

(Filed Under Seal: October 28, 2020)

(Reissued for Publication: January 21, 2021)*

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SYSTEM STUDIES & SIMULATION, 

INC. and L3 DOSS AVIATION, INC.,

Plaintiffs,

v.

THE UNITED STATES,

Defendant,

 and 

CAE USA INC.,

 Defendant-Intervenor.

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Postaward Bid Protest; Cross-Motions for 

Judgment on the Administrative Record;

Evaluation of Proposals; Assignment of 

Strengths and Weaknesses; Best Value 

Tradeoff 

Walter B. English, Huntsville, AL, and Kevin P. Mullen, Washington, DC, for plaintiffs.

Evan Wisser, United States Department of Justice, Washington, DC, for defendant.

Alexander B. Ginsberg, McLean, VA, for defendant-intervenor. 

OPINION AND ORDER

SWEENEY, Senior Judge

In this postaward bid protest, the second for this solicitation, plaintiffs System Studies & 

Simulation, Inc. (“S3”) and L3 Doss Aviation, Inc. (“L3 Doss”) contend that the United States 

Department of the Army, Mission and Installation Contracting Command (“MICC” or “the 

Agency”) improperly awarded a contract for advanced helicopter flight training support at Fort 

Rucker to defendant-intervenor CAE USA Inc. (“CAE”). Before the court are cross-motions for 

judgment on the administrative record filed by S3, L3 Doss, CAE, and defendant. For the 

reasons set forth below, the court grants defendant’s and CAE’s cross-motions for judgment on 

*

 This reissued Opinion and Order incorporates the agreed-to redactions proposed by the 

parties on January 19, 2021. The redactions are indicated with bracketed ellipses (“[. . .]”).
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the administrative record and denies plaintiffs’ requests for injunctive relief. 

I. BACKGROUND

A. History of the Requirement 

S3 and L3 Doss are both former incumbent contractors for this advanced helicopter flight 

training requirement. Administrative R. (“AR”) 125. Under a single award, indefinite 

delivery/indefinite quantity contract administered by the United States Army National Guard 

Bureau, S3 provided these services from September 14, 2009, through May 23, 2010; it then 

continued its performance under a noncompetitive one-year task order until May 22, 2011. Id. at 

154-55. MICC – Fort Rucker subsequently competed the requirement, using a best value 

tradeoff source selection method, and awarded a task order to S3 for a performance period of 

May 23, 2011, to May 22, 2013, which was extended to November 22, 2013. Id. at 155. The 

next contract, W911S0-14-D-0002, was awarded on a lowest price technically acceptable basis. 

Id. at 123, 155. The Agency awarded the contract to the company now known as L3 Doss on 

September 12, 2014, with an ordering period to end on September 15, 2018.1 Id. at 155. 

In July 2017, in anticipation of the contract’s expiration, the Agency issued a Sources 

Sought Notice. Id. at 17-20. Eleven offerors, including S3, L3 Doss, and CAE, responded. Id.

at 21-120. Ultimately, the Agency resolved to solicit offers on a full and open basis. Id. at 127-

28. Reasoning that shorter contract terms had made it difficult in the past to “recruit[] and 

retain[] contractors with the required unique experience and qualifications,” the Agency opted to 

award the work for a seven-year term. Id. at 147. 

B. The Solicitation

The Agency issued solicitation W9124G-18-R-0009 on June 25, 2018, to acquire 

advanced helicopter flight training support for the U.S. Army Aviation Center of Excellence 

(“USAACE”) at Fort Rucker, Alabama. Id. at 244, 256. The Performance Work Statement 

(“PWS”) outlined the following minimum daily training requirements by airframe:

• UH-60A/L Instructor Pilots (“IPs”) – training capacity for 16 flight 

students

• UH 60A/L Maintenance Examiners – training capacity for 12 flight 

students

• AH-64D IPs – training capacity for 64 flight students

• CH-47F IPs – training capacity for 16 flight students

• CH-47F Flight Engineer (“FE”) Non-Rated Crew Members (“NRCMs”) –

1

 The contract was awarded to Doss Aviation, Inc. AR 1561. That company was 

subsequently acquired by L3 Technologies, Inc., of which L3 Doss is a wholly owned subsidiary. 

Id.
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support capability for 5 aircraft

Id. at 532. The Agency would award a single firm-fixed-price contract for a thirty-day phase-in 

period, an eleven-month base period, and six one-year option periods. Id. at 144. 

Section M of the solicitation described how the Agency planned to evaluate the 

proposals. Id. at 588-95. With respect to the substance of the evaluations, the Agency stated that 

it intended to award the contract to the offeror “whose proposal represents the best value after 

evaluation in accordance with the factors in the solicitation by utilizing the trade-off process.” 

Id. at 588. The solicitation outlined five such factors: (1) technical capability, (2) staffing and 

management approach, (3) past performance, (4) small business participation, and (5) price. Id. 

The relative importance of the factors was described as follows:

Factor 1 (Technical Capability) and Factor 2 (Staffing and Management 

Approach) are of equal importance and are more importan[t] tha[n] all other nonprice factors. Factor 3 (Past Performance) is more important than Factor 4 (Small 

Business Participation). In accordance with [Federal Acquisition Regulation 

(“FAR”)] 15.304(e)(2), all non-price factors combined are significantly more 

important than Factor 5 (Price). 

Id. The Agency also advised: 

Although price is the least important evaluation factor, it has the potential 

to become more significant during the evaluation process. The degree of 

importance of price will increase with the degree of equality of the proposals in 

relation to the other factors on which selection is to be based. The importance of 

price will also increase when a proposal’s price is so significantly high as to 

diminish the value to the Government that might be gained under the other 

aspects of the offer. If, at any stage of the evaluation, all offerors are determined 

to have submitted equal, or virtually equal, non-price proposals, price could 

become the factor in determining which offerors shall receive the award. 

Id. at 588-89.

For the technical capability factor, the Agency provided that it would evaluate “whether 

the Offeror’s technical capability demonstrates the offeror’s understanding of the requirements, 

capabilities, experiences, and abilities to execute the tasks described in the PWS.” Id. at 589. 

For the staffing factor, the Agency indicated that it would evaluate whether the offeror 

“demonstrates an understanding of the personnel requirements of the PWS as well as the ability 

to provide the personnel with the experience, qualifications, and clearances necessary to perform 

and manage all tasks described in the PWS by the contract start date,” specifically including the 

following criteria: 

• Whether the Offeror identified its subcontractors, teaming partners or joint
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venture partners and described who will be used to perform this requirement

by task and percentage of cost.

• Whether the proposed organizational chart displays positions, decision

authority, and what parts of the organization are responsible for managing and

accomplishing each task.

• Whether the Offeror’s proposed hiring, training and retention plan provides an

adequate number of properly qualified personnel, as specified in the PWS,

necessary to perform and manage the contract’s requirements.

• Whether the Offeror identified its proposed staffing (by number of

personnel, labor category and company) and any plans to cross-utilize or rely

on reach-back, part-time or temporary personnel during contract performance. 

• Whether the Offeror identified the names of the Key Personnel who will

perform under this contract, provided resumes that clearly demonstrate that

they satisfy or possess all applicable certifications and other qualifications

required for their designated positions and provided Letters of Commitment

signed within 60 days of the due date for proposal submission.

• Whether the Offeror proposed [a] plan to execute the Employee Training

Agreement Program as specified in PWS 1.6.17 and provided a copy of the

agreement that the Offeror / Contractor intends to enter into with its affected

employees. 

Id. For both the technical capability factor and staffing factor, evaluators would designate 

strengths, weaknesses, significant weaknesses, deficiencies, and risks.2 Id. at 590. Evaluators 

would then assign adjectival ratings based on a combined technical/risk ratings table:

2

 A “strength” is “an aspect of an offeror’s proposal that has merit or exceeds specified 

performance or capability requirements in a way that will be advantageous to the Government 

during contract performance.” AR 590. A “weakness” is “a flaw in the proposal that increases 

the risk of unsuccessful contract performance.” Id. A “significant weakness” is “a flaw that 

appreciably increases the risk of unsuccessful contract performance.” Id. A “deficiency” is “a 

material failure of a proposal to meet a Government requirement or a combination of significant 

weaknesses in a proposal that increases the risk of unsuccessful contract performance to an 

unacceptable level.” Id. “Risk” is “the potential for unsuccessful contract performance,” and 

“[t]he consideration of risk assesses the degree to which an offeror’s proposed approach to 

achieving the technical factor or sub-factor may involve risk of disruption of schedule, 

degradation of performance, the need for increased Government oversight, and the likelihood of 

unsuccessful contract performance.” Id.
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Technical Rating Description

Outstanding Proposal indicates an exceptional approach and 

understanding of the requirements and contains 

multiple strengths, and risk of unsuccessful 

performance is low.

Good Proposal indicates a thorough approach and 

understanding of the requirements and contains at 

least one strength, and risk of unsuccessful 

performance is low to moderate.

Acceptable Proposal meets requirements and indicates an 

adequate approach and understanding of the 

requirements, and risk of unsuccessful performance 

is no worse than moderate. 

Marginal Proposal has not demonstrated an adequate approach 

and understanding of the requirements, and/or risk of 

unsuccessful performance is high.

Unacceptable Proposal does not meet requirements of the 

solicitation, and thus, contains one or more 

deficiencies, and/or risk of unsuccessful performance 

is unacceptable. Proposal is unawardable. 

Id. at 589-90. 

For the past performance factor, the Agency would “assess the relative risks associated 

with an Offeror’s likelihood of success in performing the solicitation’s requirements as indicated 

by that Offeror’s record of past performance.” Id. at 590. Its risk assessment would encompass 

consideration of recent and relevant past performance.3 Id. at 591. The Agency outlined 

adjectival ratings for the relevancy of the past performance:

Rating Description

Very Relevant Present/past performance effort involved

essentially the same scope and magnitude of 

effort this solicitation requires.

Relevant Present/past performance effort involved similar 

scope and magnitude of effort this solicitation 

requires. 

Somewhat Relevant Present/past performance effort involved some of 

the scope and magnitude of effort this solicitation 

requires.

3

 The solicitation classified recent performance as ongoing contracts, or those contracts 

performed within three years of the solicitation’s issuance. AR 591. 
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Not Relevant Present/past performance effort involved little or 

none of the scope and magnitude of effort this 

solicitation requires.

Id. at 592. The Agency described the following adjectival ratings: 

Adjectival Rating Description 

Substantial Confidence Based on the offeror’s recent/relevant 

performance record, the Government has a 

high expectation that the offeror will 

successfully perform the required effort.

Satisfactory Confidence Based on the offeror’s recent/relevant 

performance record, the Government has a 

reasonable expectation that the offeror will 

successfully perform the required effort.

Neutral Confidence No recent/relevant performance record is 

available or the offeror’s performance record 

is so sparse that no meaningful confidence 

assessment rating can be reasonably 

assigned. The offeror may not be evaluated 

favorably or unfavorably on the factor of 

past performance. 

Limited Confidence Based on the offeror’s recent/relevant 

performance record, the Government has a 

low expectation that the offeror will 

successfully perform the required effort. 

No Confidence Based on the offeror’s recent/relevant 

performance record, the Government has no 

expectation that the offeror will be able to 

successfully perform the required effort. 

Id. at 593. 

For the small business participation factor, the Agency intended to evaluate the following

areas:
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Adjectival 

Rating

Extent to 

which SB 

Firms are 

Specifically 

Identified

Extent of 

Commitment 

to Identified 

Firms

Complexity 

& Variety of 

Work SB 

Firms will 

Perform

Extent of 

Participation 

of SB Firms 

in Terms of 

the Value of 

the Total 

Acquisition

Extent of 

Utilization of 

SB firms on 

prior 

contracts

Outstanding SB Firms are 

identified by 

name in each 

category 

proposed. 

Written 

Agreements 

in place with 

all SB firms.

Wide variety 

of work to be 

provided by 

SB firms to 

include 

technically 

complex 

work.

SB firms will 

provide a 

significant

amount of the 

value of the 

total 

acquisition.

Significant

utilization of 

SB firms in 

prior 

contracts. 

Good SB Firms are 

identified by 

name in most

categories 

proposed.

Written 

agreements in 

place with 

several SB 

firms.

Some variety 

of work to be 

performed by 

SB firms to 

include 

technically 

complex 

work.

SB firms will 

provide a 

substantial 

amount of the 

value of the 

total 

acquisition.

Substantial 

utilization of 

SB firms in 

prior 

contracts. 

Acceptable SB Firms are 

identified by 

name in some 

categories 

proposed.

Written 

agreements in 

place with 

some SB 

firms.

Some variety 

of work to be 

performed by 

SB firms 

(absent 

technically 

complex 

work).

SB firms will 

provide 

meaningful 

amount of the 

value of the 

total 

acquisition.

Meaningful 

utilization of 

SB firms in 

prior 

contracts. 

Marginal SB Firm 

identified by 

name in only 

one category 

proposed.

Written 

agreement in 

place [with] 

only one SB 

firm.

SB firms will 

only be 

utilized to 

provide 

supplies on 

the contract.

SB firms will 

provide a 

minimal 

amount of the 

value of the 

total 

acquisition.

Modest 

utilization of 

SB firms in 

prior 

contracts.
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Unacceptable No SB Firms 

Identified by 

Name. 

No indication 

of any 

written 

agreement in 

place with 

any SB firm.

No 

identification 

of how SB 

firms will be 

utilized.

SB firms will 

provide an 

insignificant 

amount of the 

value of the 

total 

acquisition.

Insignificant 

utilization of 

SB firms in 

prior 

contracts 

with no valid 

rationale. 

Id. at 593-94. The Agency also outlined the following adjectival ratings: 

Rating Description 

Outstanding Proposal indicates an exceptional approach and understanding of 

the small business objectives.

Good Proposal indicates a thorough approach and understanding of the 

small business objectives.

Acceptable Proposal indicates an adequate approach and understanding of 

small business objectives.

Marginal Proposal has not demonstrated an adequate approach and 

understanding of the small business objectives.

Unacceptable Proposal does not meet small business objectives. 

Id. at 594. 

C. Initial Evaluation of Proposals and Source Selection Decision

The initial proposal deadline was July 25, 2018, id. at 316, but was later extended to 

September 12, 2018, id. at 441. Seven offerors submitted timely proposals: L3 Doss; S3; [. . .]; 

[. . .]; CAE; [. . .]; and [. . .]. See generally id. at 843-3168 (proposals). Based on assessments 

from the Agency’s Source Selection Evaluation Board (“SSEB”) (id. at 3575-90), Technical 

Evaluation Team (id. at 3274-460), Past Performance Evaluation Team (“PPET”) (id. at 3499-

548), and Contract Price Cost Analyst (id. at 3549-74), the Agency established a competitive 

range and initiated discussions with CAE, [. . .], S3, and L3 Doss. Id. at 3616. On August 7, 

2019, the Agency sent Evaluation Notices and requests for final proposal revisions to these 

offerors, and each submitted a timely response. Id. at 4378.

As part of the Technical Evaluation Team’s final assessment, it evaluated the offerors’ 

strengths for the first two factors. Id. at 4259-86. For the technical capability factor, S3 received 

two strengths for (1) its [. . .] and (2) its [. . .]. Id. at 4275. L3 Doss received one strength for its 

[. . .]. Id. at 4268. CAE received two strengths for (1) its [. . .] and (2) its [. . .]. Id. at 4260. For 

the staffing factor, S3 received a strength for its [. . .] which included [. . .]. Id. at 4279. L3 Doss 

received three strengths for the staffing factor: (1) [. . .]; (2) [. . .]; and (3) [. . .]. Id. at 4272. 

[. . .] received two strengths. Id. at 4286. CAE received six strengths related to the staffing 

factor: (1) [. . .]; (2) [. . .]; (3) [. . .]; (4) [. . .]; (5) [. . .]; and (6) [. . .]. Id. at 4264-65. 
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For the past performance factor, each offeror submitted references for past or ongoing 

contracts. Id. at 3499-548. S3 offered six such references. Id. at 3529. The first reference, for 

helicopter training services, was classified as recent and very relevant, with a rating of 

substantial confidence. Id. The second reference, for helicopter training services, was classified 

as partially recent and very relevant, with a rating of satisfactory confidence. Id. The third 

reference, for helicopter training services, was classified as recent and relevant, with a rating of 

substantial confidence. Id. The fourth reference, for Blackhawk helicopter training, was 

classified as partially recent and relevant, with a rating of satisfactory confidence. Id. The fifth 

and sixth references, both for helicopter training, were classified as recent and relevant, with 

ratings of satisfactory confidence. Id. 

L3 Doss submitted four past performance references. Id. at 3522. The first reference, for 

the prior contract, was classified as recent and very relevant, with a rating of satisfactory 

confidence. Id. The second reference, for fixed-wing aircraft training and other services, was 

classified as partially recent and relevant, with a rating of substantial confidence. Id. The third 

reference, for fixed-wing aircraft training and other services, was classified as recent and 

relevant, with a rating of satisfactory confidence.4 Id. The fourth reference, for simulator 

training, was classified as partially recent and somewhat relevant, with a rating of satisfactory 

confidence. Id. 

CAE submitted four past performance references. Id. at 3516. The first reference, for 

live flight and simulator-based training, was classified as recent and relevant, with a rating of 

substantial confidence. Id. The second reference, for unmanned aerial vehicle flight instruction, 

was classified as recent and relevant, with a rating of satisfactory confidence. Id. The third 

reference, for fixed-wing flight training, was classified as recent and somewhat relevant, with a 

rating of satisfactory confidence. Id. The fourth reference, for helicopter training, was classified 

as recent and somewhat relevant, with a rating of satisfactory confidence. Id.

[. . .] submitted one past performance reference, for a contract involving helicopter 

training. Id. at 3545. The reference was classified as recent and very relevant, with a rating of 

substantial confidence. Id.

Incorporating the evaluations of the SSEB, the Source Selection Authority (“SSA”) 

assigned the offerors the following ratings in her Source Selection Decision (“SSD”): 

4

 For this contract, L3 Doss’s graduation rates fell below the 90% required by the PWS. 

AR 3526. To address this deficiency, L3 Doss provided the Agency with a “Get Well Plan” on 

October 6, 2017. Id. The plan sought “support [and/or] relief in several areas to help alleviate 

some of [L3 Doss’s] late programmed student graduations . . . .” Id. The Agency accepted and 

implemented the plan. Id. The plan “was successful in conjunction with the significant 

concessions granted by the government, which also included significant reductions in student 

numbers during the last quarter of CY17.” Id.
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L3 Doss [. . .] S3 CAE

Factor 1 – Technical 

Capability

Good Good Outstanding Outstanding

Factor 2 – Staffing 

and Management 

Approach

Good Good Good Outstanding

Factor 3 – Past 

Performance 

[. . .] 

Confidence

[. . .] 

Confidence

[. . .] 

Confidence

[. . .] 

Confidence 

Factor 4 – Small 

Business 

Participation

Good Good Good Good

Id. at 4390. The SSA also noted the final proposed and evaluated prices: 

Offeror Total Proposed Price Total Evaluated Price 

(inclusion of FAR 

52.217-8)

L3 Doss $[. . .] $[. . .]

[. . .] $[. . .] $[. . .]

S3 $[. . .] $[. . .]

CAE $[. . .] $96,655,774.45

Id. at 4349. The Agency found each of the proposed prices to be fair, reasonable, realistic, and 

balanced. Id. at 4450.

D. The Prior Bid Protest

S3 filed its initial bid protest on October 1, 2019.5 See generally Sys. Studies & 

Simulation, Inc. v. United States, 146 Fed. Cl. 186 (2019). The court concluded that S3 was not 

prejudiced by the Agency’s staffing evaluation, and that the Agency’s past performance 

evaluation was reasonable. However, the court agreed with S3 that the Agency failed to engage 

in a proper tradeoff analysis and effectively converted the acquisition to a lowest price 

technically acceptable procurement—an error that prejudiced S3. The court thus enjoined the 

Agency from proceeding with contract performance and ordered the Agency to “reevaluate the 

proposals in the competitive range and render a new Source Selection Decision, performing a 

new tradeoff analysis and assigning each factor the appropriate weight in accordance with this 

court’s decision.” Id. at 204.

5

 L3 Doss intervened in this protest, as the awardee at the time, but it did not file briefs 

or participate in oral argument. 
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E. Reevaluation

Pursuant to the court’s decision, the SSEB reevaluated factors 1 and 2 for offerors in the 

competitive range.6 AR 4858. For the technical capability factor, the strengths, weaknesses, and 

overall ratings assigned to S3, L3 Doss, and CAE remained unchanged.7 For the staffing factor, 

in contrast, some ratings shifted. CAE received five strengths rather than six, id. at 4408-09, 

4769-70, and S3’s strengths increased from one to two, id. at 4406, 4798-99.

8

 The overall 

staffing factor rating for S3 and L3 Doss also increased from Good to Outstanding. Id. at 4399, 

4404, 4765, 4781, 4797. 

As reflected in the new SSD, based on the SSEB’s updated evaluation, the SSA 

performed a new best value tradeoff analysis. For the technical capability factor, the SSA 

concluded that both S3 and CAE submitted “relatively equal technical proposals” and that both 

had received Outstanding ratings. Id. at 4871. She also observed that L3 Doss trailed behind 

these two offerors with a Good rating. Id. at 4862-63. Turning to the staffing factor, the SSA 

noted that CAE, S3, and L3 Doss had all received Outstanding Ratings. Id. at 4863. However, 

she also concluded that CAE’s “numerous strengths” made it “clearly superior.” Id. She 

observed that under this factor, CAE’s proposal “well exceeded all other offerors’ proposals, 

with several unique strengths which distinguish it.” Id. at 4865. For the past performance factor, 

the SSA noted that S3’s rating of substantial confidence exceeded CAE and L3 Doss’s equal 

ratings of satisfactory confidence. Id. at 4868-69. And for the small business participation 

factor, she commented that CAE and L3 Doss had “distinguished themselves” with a higher 

small business commitment than S3. Id. at 4869. The SSA summarized the offerors’ final 

ratings as follows: 

L3 Doss [. . .] S3 CAE

Factor 1 – Technical 

Capability

Good Good Outstanding Outstanding

Factor 2 – Staffing 

and Management 

Approach

Outstanding Good Outstanding Outstanding

Factor 3 – Past 

Performance 

Satisfactory 

Confidence

Substantial 

Confidence

Substantial 

Confidence

Satisfactory 

Confidence 

6

 Because the court did not order reevaluation of factor 3 (past performance) and factor 4 

(small business participation), the SSEB did not revisit them. AR 4858. 

7

 While the number of strengths did not change, the SSEB awarded S3 and CAE 

strengths on [. . .] alone, rather than on both [. . .]. AR 4861-62.

8

 CAE no longer received a strength for its [. . .]. AR 4409. Additionally, the SSA 

clarified that CAE had proposed to hire [. . .], setting it apart from the other offerors. Id. at 4865 

(“All other offerors only proposed [. . .], and none of the other offerors proposed a [. . .].”). S3 

gained a strength for its proposal to hire a [. . .]. Id. at 4799.
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Factor 4 – Small 

Business 

Participation

Good Good Good Good

Id. at 4861. 

The SSA next described how her independent assessment had led her to select CAE as 

the contract awardee. Going beyond the ratings assigned to each proposal, she documented the 

“unique strengths” that CAE’s proposal offered under the staffing factor. Id. at 4871. 

Considering the relatively small differences between the offerors’ past performance and small 

business participation ratings, the SSA concluded that CAE’s advantages under the first two 

factors gave it the lead in terms of nonprice factors. Id. at 4872. The SSA also engaged in a 

careful evaluation of the offerors’ prices. She compared CAE’s total evaluated price to the 

prices of each other offeror, indicating precise percentages for the price differences. Id. at 4870. 

She explained: 

The Solicitation advised that “the importance of price will also increase when a 

proposal’s price is so significantly high as to diminish the value to the 

Government that may be gained under the other aspects of the offer.” CAE’s 

proposed price is not “so significantly high as to diminish the value to the 

Government that may be gained under other aspects of the proposal.” While CAE 

proposed the highest total evaluated price (TEP), CAE’s TEP is below the 

[Independent Government Cost Estimate] and is only $[. . .] or [. . .]% higher than 

S3’s TEP. This amounts to approximately $[. . .] more per month over the phasein, base, 6 option years, and an optional 6-month extension (approximately 90 

months), in comparison to S3’s TEP monthly cost. For this relatively small 

difference in price, the Government will realize significant benefits including the 

three unique strengths discussed above and an additional proposed [. . .] [full-time 

equivalent employees (“FTEs”)].

Id. at 4872. Ultimately, she concluded that “paying more for the values proposed in CAE’s 

proposal is advantageous to the program in the long-run and is consistent with the solicitation.” 

Id. at 4873. On May 5, 2020, the Agency awarded the contract to CAE. Id. at 5515.

F. This Bid Protest

On May 8, 2020, S3 filed the instant bid protest, challenging the Agency’s award to 

CAE. L3 Doss similarly protested the award on May 15, 2020, and the court consolidated the 

protests. The court also granted CAE’s motion to intervene in the protest to defend its receipt of 

the contract. 

On June 3, 2020, at defendant’s request, the court remanded the matter to the Agency. 

The court instructed the Agency to evaluate allegations by L3 Doss that the Agency had not 

properly considered the impact of two CAE flight accidents on CAE’s past performance rating. 
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The Agency submitted its Decision on Remand on June 15, 2020, in which it maintained that 

CAE’s satisfactory past performance made it a responsible offeror. Id. at 5566-69. Regarding an 

October 18, 2017 incident, the responsible Contracting Officer’s Representative (“COR”)

considered the incident when he evaluated CAE’s performance. Id. at 5567. Although he 

considered the contractor to be at fault, he noted that “it was a one-time incident, . . . there were 

no injuries, and . . . the pilot was able to complete training on time.” Id. at 5567-68. Regarding a 

March 8, 2017 incident, the COR indicated that he “did not consider the contractor to be at fault 

for the . . . incident because it was his understanding that the incident was the result of equipment 

failure, not pilot error.” Id. at 5568. Similarly, the Agency noted that a National Transportation 

Safety Board (“NTSB”) Aviation Accident Preliminary Report had not determined that “CAE’s 

instructor or pilot were at fault during the maneuvering of the aircraft or that the loss of engine 

power was to due anything either party did during the training.” Id.

The parties’ motions have been fully briefed; because none of the parties requested oral 

argument and the court deemed oral argument unnecessary, this matter is now ripe for 

adjudication. 

II. DISCUSSION

In ruling on motions for judgment on the administrative record pursuant to Rule 52.1(c) 

of the Rules of the United States Court of Federal Claims, “the court asks 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) (citing Bannum, 

Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005)). Because the court makes “factual 

findings . . . from the record evidence,” judgment on the administrative record “is properly 

understood as intending to provide for an expedited trial on the record.” Bannum, 404 F.3d at 

1356.

A. Legal Standards

The court reviews challenged agency actions pursuant to the standards set forth in 

5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4). Specifically, “the proper standard to be applied in bid

protest cases is provided by 5 U.S.C. § 706(2)(A): A reviewing court shall set aside the agency

action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.’” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004). Under

this standard, the court

may set aside a procurement action if “(1) the procurement official’s decision

lacked a rational basis; or (2) the procurement procedure involved a violation of

regulation or procedure.” A court reviews a challenge brought on the first ground

“to determine whether the contracting agency provided a coherent and reasonable

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

heavy burden of showing that the award decision had no rational basis.” “When a

challenge is brought on the second ground, the disappointed bidder must show a

clear and prejudicial violation of applicable statutes or regulations.”
-14-

Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (citations omitted)

(quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332-

33 (2001)); accord Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. 

Cir. 2000) (“The arbitrary and capricious standard . . . requires a reviewing court to sustain an 

agency action evincing rational reasoning and consideration of relevant factors.”).

Procurement officials “are ‘entitled to exercise discretion upon a broad range of issues

confronting them’ in the procurement process.” Impresa Construzioni Geom. Domenico Garufi,

238 F.3d at 1332-33 (quoting Latecoere Int’l, Inc. v. U.S. Dep’t of the Navy, 19 F.3d 1342, 1356

(11th Cir. 1994)). Thus, the court’s review of a procuring agency’s decision is “highly

deferential.” Advanced Data Concepts, Inc., 216 F.3d at 1058. Furthermore, a “protestor’s 

burden of proving that the award was arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law is greater [in negotiated procurements] than in other types of bid 

protests.” Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004). 

And, when a contract is to be awarded on a “best value” basis, procurement officials have “even 

greater discretion than if the contract were to have been awarded on the basis of cost alone.” Id.

(citing E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (“Procurement 

officials have substantial discretion to determine which proposal represents the best value for the 

government.”)). Consistent with the deference accorded to procuring agencies conducting 

negotiated procurements, when a protestor challenges a procuring agency’s evaluation of a 

technical proposal, the court’s “review . . . should be limited to determining whether the 

evaluation was reasonable, [was] consistent with the stated evaluation criteria and complied with 

relevant statutory and regulatory requirements.” Banknote Corp. of Am. v. United States, 56 

Fed. Cl. 377, 381 (2003), aff’d, 365 F.3d 1345; accord E.W. Bliss Co., 77 F.3d at 449 

(“[T]echnical ratings . . . involve discretionary determinations of procurement officials that a

court will not second guess.”). 

“[O]verturning awards on de minimis errors wastes resources and time, and is needlessly 

disruptive of procurement activities and governmental programs and operations.” Grumman 

Data Sys. Corp. v. Widnall, 15 F.3d 1044, 1048 (Fed. Cir. 1994) (quoting Andersen Consulting 

Co. v. United States, 959 F.2d 929, 932 (Fed. Cir. 1992)). Thus, in addition to showing “a 

significant error in the procurement process,” a protestor must show “that the error prejudiced

it.” Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996); see also Bannum, Inc., 

404 F.3d at 1351 (holding that if the procuring agency’s decision lacked a rational basis or was 

made in violation of the applicable statutes, regulations, or procedures, the court must then 

“determine, as a factual matter, if the bid protester was prejudiced by that conduct”). “To 

establish prejudice . . . , a protester must show that there was a ‘substantial chance’ it would have 

received the contract award absent the alleged error.” Banknote Corp. of Am., 365 F.3d at 1351

(quoting Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed. Cir. 

2001)); see also Data Gen. Corp., 78 F.3d at 1562 (“[T]o establish prejudice, a protester must 

show that, had it not been for the alleged error in the procurement process, there was a

reasonable likelihood that the protester would have been awarded the contract.”).
-15-

B. Technical Capability Factor

1. The Agency Did Not Err by Declining to Award L3 Doss a Strength for Its Incumbency

L3 Doss first contends that in addition to the strength it received under the technical 

capability factor for its [. . .], it also deserved an independent strength for its incumbency. The 

language used to describe the strength, L3 Doss emphasizes, clearly focuses on L3 Doss’s

incumbency and contrasts sharply with the language used to describe CAE’s strength, which 

focused on its “[. . .].” L3 Doss Mot. 10 (citing AR 5077). L3 Doss asserts that because “the 

benefits of incumbency and [. . .] are not one and the same[,] [a]n offeror that can provide both 

necessarily offers greater value to the Army than an offeror that can provide only one.” Id. at 11. 

Defendant counters that “[t]he solicitation did not specify any need or benefit to the 

Government deriving from incumbency” and maintains that the Agency properly assigned L3 

Doss, S3, and CAE strengths for their similar experiences. Def. Mot. 22. The court agrees. The 

Agency applied this strength with consistency, giving credit to each offeror for the same type of 

activities. For L3 Doss, the Agency emphasized its [. . .] as the follow-on requirement and that 

L3 Doss could provide “[. . .].” AR 5085. For S3, the Agency observed that it had [. . .] and that 

this [. . .]. Id. at 5092-93. For CAE, the Agency noted that it [. . .]. Id. at 5077. The court finds 

no inequality in the Agency’s consideration of each offeror’s overall experience and specific 

familiarity with the Agency’s needs under this solicitation. 

The Agency could hardly have assigned an “[. . .]” strength to L3 Doss without 

referencing its incumbency, and the fact that it did so here does not improperly diminish the 

value of that incumbency. The court may not award “extra credit” for incumbency where, as 

here, the solicitation does not require it and the SSA herself has declined to do so. Accord

PGBA, LLC v. United States, 60 Fed. Cl. 196, 209 (2004); see also United Concordia Cos. v. 

United States, 99 Fed. Cl. 34, 45 (2011) (“We will not upset the agency’s rating simply because 

plaintiff was the incumbent and believes its experience to be superior.”). 

2. The Agency Did Not Err by Declining to Award L3 Doss a Strength for its [. . .]

L3 Doss also takes issue with the Agency’s treatment of its [. . .]. Because L3 Doss 

expected to secure this [. . .] “well before contract performance was to commence,” L3 Doss 

Mot. 12, it argues that the SSA’s conclusion that it had not proposed an [. . .] was erroneous, id.

at 13 (citing AR 4868). L3 Doss also observes that while the Agency initially assigned strengths 

to CAE and S3 based on this [. . .], the SSA in the final SSD revised this rationale to focus 

instead on [. . .]. Id. at 14 (citing AR 5077, 5092). Thus, L3 Doss alleges that “rather than 

acknowledging L3 Doss’s [. . .] and assigning a strength, the Army simply manufactured a new 

basis for the strength assigned to CAE and S3.” Id. Defendant responds that (1) L3 Doss failed 

to inform the Agency that it had in fact obtained the [. . .], Def. Mot. 22-23, and (2) the Agency 

had a rational basis for turning to the [. . .], id. at 23-24. 

Whether the Agency improperly disregarded L3 Doss’s [. . .] is immaterial, because the 

court finds no error in the Agency’s focus on [. . .]. “[A]n agency has the right to change its 
-16-

mind in the course of an evaluation if it has good reason,” VanGuard Recovery Assistance v. 

United States, 101 Fed. Cl. 765, 786 (2011), and such is the case here. The strength awarded to 

CAE noted a rational distinction between the two [. . .]: “[. . .] takes the [. . .] and supplements 

them with additional [. . .], which are established by the [. . .].” AR 5077. Weighing the relative 

benefits of [. . .] and [. . .] is precisely the kind of technical evaluation that “requires the special 

expertise of procurement officials,” and thus deserves “the greatest deference possible.” Sys. 

Application & Techs., Inc. v. United States, 100 Fed. Cl. 687, 718 (2011) (quoting Fort Carson 

Support Servs. v. United States, 71 Fed. Cl. 571, 586 (2006)). Thus, the court finds no error in

the distinctions drawn by the Agency between the [. . .] and [. . .], or its consequent decision to 

award strengths only to CAE and S3. 

3. The Agency Did Not Err by Declining to Award L3 Doss Other Technical Strengths

L3 Doss next asserts that four other aspects of its proposal merited strengths, which the 

Agency failed to award. Proper recognition of these strengths, L3 Doss alleges, would have 

entitled it to an Outstanding rating under the technical capability factor. L3 Doss Mot. 17-20. 

Here, as above, the court refuses to substitute its own judgment for the Agency’s special 

expertise. 

First, L3 Doss notes that it proposed “[. . .]” with “[. . .].” Id. at 16 (citing AR 1576). 

The court concurs with defendant that this [. . .] is not “an aspect of an offeror’s proposal that has 

merit or exceeds specified performance or capability requirements” but is instead a basic 

requirement of the solicitation. Def. Mot. 22 (quoting AR 590). This fact is evidenced, in part, 

by the solicitation’s specific provision for [. . .]. AR 527-28, 553-54. Although L3 Doss asserts 

that its position as the incumbent uniquely [. . .], L3 Doss Resp. 16, the court reiterates that 

nothing requires the Agency to award L3 Doss a strength simply for its incumbency.

Second, L3 Doss emphasizes that it offered “[. . .],” as demonstrated by its low NTSB

General Aviation training accident rate. L3 Doss Mot. 16 (citing AR 1576). It posits, in part,

that because the solicitation explicitly provides for decertification of contractor personnel in the 

event of a “[f]ailure to protect or properly care for Government property or equipment” or “[a]cts 

that endanger the health or safety of Government or contractor personnel,” safety history was a

relevant criterion when evaluating strengths. L3 Doss Resp. 12 (quoting AR 525). These 

provisions, however, do not constitute stated evaluation criteria. The Agency’s decision not to 

award any offeror a strength based on safety record was thus proper.9 See NEQ, LLC v. United 

States, 88 Fed. Cl. 38, 48 (2009) (“It . . . is beyond peradventure that the government may not 

rely upon undisclosed evaluation criteria when evaluating proposals.”); Forestry Surveys & Data 

v. United States, 44 Fed. Cl. 493, 499 (1999) (noting that “agency evaluation personnel are given 

great discretion in determining the scope of an evaluation factor”). 

9

 Significantly, the NTSB General Aviation training accident rate cited by L3 Doss 

focused on civil aviation rather than military aviation training. AR 1576. Even if the Agency 

had decided to award strengths based on safety record, it would not necessarily have considered 

this statistic relevant. 
-17-

Third, L3 Doss notes that it “committed to continuing to support [. . .] flying requests.” 

L3 Doss Mot. 16-17 (citing AR 1592). Contrary to L3 Doss’s assertions, however, the 

solicitation itself required [. . .]. AR 531-32. The Agency rationally concluded that “meeting 

solicitation requirements should not be considered a strength.” Quest Diagnostics, Inc. v. United 

States, 110 Fed. Cl. 716, 726 (2013). 

Fourth, L3 Doss indicates that it offered “[. . .],” thereby ensuring “[. . .].” L3 Doss Mot.

17 (citing AR 1598). It also emphasizes that because it already conducted this process as the 

incumbent, its proposal allowed it to “eliminate the potential for performance disruption and 

streamline transition activities.” L3 Doss Resp. 12. But once again, L3 Doss promises to do 

little more than comply with the terms of the solicitation. L3 Doss’s description of its procedure 

for [. . .] is, essentially, a slightly more detailed description of the procedure outlined in the PWS. 

Compare AR 527 (PWS 1.6.19), with id. at 1598 (L3 Doss’s description of its implementation of 

PWS 1.6.19). And to the extent L3 Doss argues that its incumbency would allow it to carry out 

this task more efficiently, the same could be said of almost any task described in the PWS. Other 

than the alleged benefits inherent to its incumbency, L3 fails to explain why the Agency’s 

decision not to award it a strength on this point was improper. 

C. Staffing Factor

1. The Agency Did Not Err by Awarding Both CAE and L3 Doss Strengths for [. . .]

The parties’ dispute regarding the significance of [. . .] L3 Doss received from [. . .]

evolved over the course of briefing. L3 Doss initially asserted that because it had secured [. . .], 

the Agency should not have assigned CAE a strength for the mere intention to [. . .]. L3 Doss 

Mot. 20-21. However, CAE later demonstrated not only that CAE had in fact obtained [. . .],

10

CAE Mot. 16-18, but that the [. . .] secured by L3 Doss did not appear on their face to be [. . .], 

id. at 20-21. L3 Doss ultimately withdrew its argument, L3 Doss Resp. 13 n.4, but S3 continues 

to maintain that the Agency erred on this point. Specifically, S3 asserts that because the Agency 

knew that L3 Doss had claimed [. . .], the Agency had a duty to investigate the situation further 

before assigning CAE a strength for [. . .]. S3 Resp. 9-11. 

S3’s argument is grounded in mere speculation. As defendant emphasizes, Def. Reply 6, 

the record does not support the existence of a [. . .] that might stop CAE from following through 

on its [. . .]. And indeed, L3 Doss’s withdrawal of its argument seems to resolve the question in 

favor of CAE and the Agency. See L3 Doss Resp. 13 n.4 (indicating that the [. . .] was only 

oral); AR 1626, 1632 (L3 Doss [. . .], stating that “[e]ither party may terminate this [. . .] at any 

time for any reason”). The SSA, of course, did misstate the record when she initially indicated 

that [. . .], but no prejudice resulted. Both CAE and L3 Doss ultimately received strengths for 

[. . .], and the record does not suggest that the SSA somehow valued one of these strengths more 

10

 This misunderstanding apparently stems from an erroneous statement in the April 20, 

2020 SSD: “Unlike L3, CAE does not provide [. . .].” AR 4864. The SSA later corrected the 

error. Id. at 5621-22. 
-18-

than the other. See id. at 5622 (“The two wording errors in my [Source Selection Decision 

Document], which mistakenly indicated that CAE did not submit the [. . .], were not relevant to 

my analysis or award decision on April 23, 2020, because at the time I had understood that CAE 

did, in fact, submit the [. . .].”). Any initial confusion regarding the status of these offerors’ [. . .]

fits squarely within the realm of “de minimis error[ that] wastes resources and time.” Grumman 

Data Sys. Corp., 15 F.3d at 1048.

2. The Agency Erred by Awarding CAE a Strength for its [. . .] Approach

The strength awarded to CAE’s proposed [. . .] approach has also raised S3’s ire. In its 

proposal, CAE stated that if it was [. . .]. AR 1345. S3 contends that because the solicitation 

already required offerors to [. . .], CAE’s proposal merely followed the solicitation’s 

requirements or, alternatively, departed improperly from the firm-fixed-price nature of the 

solicitation’s contract line item numbers (“CLINs”). S3 Mot. 22-23. S3 thus maintains that by 

concluding that CAE’s billing approach would result in “significant cost savings,” the Agency 

acted irrationally. Id. at 24. Meanwhile, L3 Doss asserts that because, “like CAE, L3 Doss 

proposed to [. . .],” L3 Doss also deserved a strength. L3 Doss Mot. 21. 

Defendant offers several defenses. First, defendant asserts that the solicitation’s 

reference to “[. . .]” reimbursement for [. . .] referred to the number and type of instructors 

required rather than the [. . .]. Def. Mot. 16. Second, defendant casts CAE’s proposal not as an 

improper deviation from a firm-fixed-price payment structure, but as “an offer to modify the 

default risk allocation under the terms of the solicitation.” Id. at 17. Because CAE intended to 

[. . .], defendant asserts, the risk of loss would be shared by both CAE and the Agency. Id. 

Third, defendant maintains that the SSA justified CAE’s price premium based on its “increased 

offer of services,” not just the potential savings from its [. . .] practices. Id. at 32. As for L3 

Doss’s contention, defendant maintains that the language in L3 Doss’s proposal gave the Agency 

“no reason to believe that L3 was offering a new [. . .] billing system for [. . .].” Id. at 18. 

As an initial matter, the court considers whether the Agency impermissibly deviated from 

the firm-fixed-price payment structure. A firm-fixed-price contract “is not subject to any 

adjustment on the basis of the contractor’s cost experience in performing the contract.” FAR 

16.202-1. As a result, “[t]he essence of a firm fixed-price contract is that the contractor, not the 

government, assumes the risk of unexpected costs.” Lakeshore Eng’g Servs., Inc. v. United

States, 748 F.3d 1341, 1347 (Fed. Cir. 2014). A firm-fixed-price contract allows “the 

government [and contractor to be] aware of the total contract price at the time of acceptance.” 

First Enter. v. United States, 61 Fed. Cl. 109, 124 n.23 (2004). The stated price of such a 

contract may be “subject to adjustment only by operation of contract clauses providing for 

equitable adjustment or other revision of the contract price under stated circumstances.” FAR 

16.201(a). This solicitation involves just such a “stated circumstance.” 

When the Agency outlined its approach to [. . .] in the solicitation, it fundamentally 

disrupted the normal operation of a firm-fixed price contract. In sharp contrast to the certainty 

that characterizes most firm-fixed-price contracts, the solicitation’s approach was, as CAE put it, 

“inherently indefinite.” CAE Mot. 25. Similarly, by allowing contractors to bill “up to the level 
-19-

of support approved by the Contracting Officer,” AR 532, the solicitation’s approach shifted the 

risk from the contractor to the government. CAE’s [. . .] proposal [. . .], where a firm-fixed-price 

contract normally would have allocated it. Because the Agency had already departed from the 

firm-fixed-price structure in this very limited instance, the court determines that it was not 

prohibited from considering the value of CAE’s unique pricing proposal. 

An equally critical question remains: whether the Agency acted rationally when it 

concluded that CAE’s billing approach constituted a strength. In an e-mail message to the SSA, 

the COR offered the following explanation of the Agency’s [. . .] requirements:

[. . .] are not in the Program of Instruction (POI) at [USAACE]. [. . .] are 

considered to be [. . .]. This means that the contractor would primarily provide 

instructors [. . .]. [. . .] provides a [. . .] capability. Some months have passed 

with no [. . .] flying and some months have gone with every [. . .] flying [. . .]

days. It is difficult to provide a set, or even an average, number of [. . .] days per 

year. Regardless, the offer of [. . .] is a financial benefit to the government. 

Id. at 4834. This exchange is typical of the Agency’s discussion of CAE’s [. . .] proposal—that

is, no Agency official was willing to hazard a guess as to the amount of money the Agency might 

expect to save. In its review of the SSD and the evaluations that contributed to it, the court can 

be certain only of the following. First, [. . .] would only occur [. . .] Id. Second, CAE’s billing 

proposal would take effect only if this [. . .]. Id. at 1345; see also Def. Mot. 17 (“Notably, CAE’s 

[. . .].”). Third, compensation for this [. . .] would be capped at [. . .].

11

 Id. at 510-19. At best, 

the Agency stood to save something less than $100,000 in any given year (again, there is no way 

to estimate).12 At worst, if [. . .] and [. . .], the Agency stood to save nothing. 

Unlike S3 and L3 Doss, the court would not require (or expect) the Agency to make up 

CAE’s entire price premium through its alternative billing method.13 But the SSA did state that 

11

 AR 510-23. CAE attempts to minimize the significance of this “plug number” by 

asserting that “[t]here is nothing remarkable or problematic about [this aspect] of the Solicitation, 

and many firm-fixed-price Government contracts feature similar CLINs for indefinite, optional 

work.” CAE Mot. 26. However, CAE gives the court no other reason to disregard this limit. 

12

 The court also emphasizes that the solicitation requires the Agency to reimburse the 

contractor “up to” the level of support previously approved. AR 532. In other words, the 

solicitation provides a ceiling for the reimbursement, but not a floor. 

13

 To the extent that it remains relevant, the court also notes that it concurs with the 

Agency’s interpretation of L3 Doss’s [. . .] proposal. L3 Doss used the following language to 

describe its approach: 

[. . .]. 

AR 1588. In contrast to CAE, whose proposal clearly delineated the circumstances under which 
-20-

the Agency expected to glean a “significant cost savings benefit” from this proposal. Id. at 4865. 

The record shows no evidence of such savings; instead, the court sees only a very narrow billing 

policy with unpredictable applicability. The Agency’s decision to award this strength lacked a 

rational basis.14

3. The Agency Did Not Err by Awarding CAE a Strength for Using [. . .]

S3 asserts that because the Agency indicated that FEs rather than flight instructors would 

perform NRCM duties on the CH-47 aircraft, the Agency should not have assigned CAE a 

strength for proposing to [. . .]. S3 Mot. 26. The argument is based in large part on questions 

submitted by potential offerors, such as the following: 

Are the non-rated crewmembers executing instructional duties of a Flight 

Instructor (FI) or are they performing the Flight Engineers (FE) duties in the 

aircraft? Paragraph 1.6.11.3.1 and 2 mention FI and FE, 5.4.2 and 4 only shows 

FE. Also the second note under 5.4.2 states: “**NOTE: The NRCM instructors 

will perform Flight Engineer (FE) duties for the CH-47 or Crew Chief (CE) duties 

for the UH-60 as applicable when not instructing students.” There is no 

requirement for CEs in the PWS paragraph 5.4.2. Also, FEs in CH-47 and CEs in 

UH-60 are not interchangeable duties. Would the government remove the 

reference to performing CE duties in UH-60?

Id. at 5601. In response, the Agency stated: “There is no current requirement (5.4.2) for NRCM 

Flight Instructors (FI). Currently, there is only a need for CH-47 FEs.” Id. Another offeror 

likewise asked: 

PWS Paragraph 5.4.2 Note #2 The NRCM instructors will perform Flight 

Engineer (FE) duties for the CH-47 or Crew Chief (CE) duties for the UH-60 as 

applicable when not instructing students. Is the intent of the government to use 

CH-47F FI/FE as crew chiefs on the UH-60 Helicopter when they are not 

performing CH-47F non-rated crew duties? 

Id. at 5602. The Agency clarified: “There is no requirement for Flight Instructors under this 

contract; the Government does not intend to use CH-47 FE as stated in the question.” Id.

In response to S3, defendant maintains that the Agency’s answers to these questions 

indicate only that “offerors did not need to propose [. . .] to meet the minimum terms of the 

it would [. . .], L3 Doss makes only a vague reference to “proof of actual hours incurred.” The 

Agency’s conclusion that L3 Doss had not actually proposed a new billing approach was entirely 

rational. 

14

 The court saves the question of whether this error prejudiced plaintiffs for its 

discussion of the SSA’s best value tradeoff.
-21-

PWS.” Def. Mot. 21. It also asserts that because the solicitation specifically indicated the 

experience offerors must document to receive credit for proposing [. . .], the offerors were on 

notice that [. . .]. Id. (citing AR 524). The court concurs with defendant’s interpretation. The 

Agency’s answers clearly indicate that the PWS does not require NRCM flight instructors, but as 

CAE emphasizes, CAE Mot. 27-28, offerors were certainly not prohibited from proposing such 

staffing. Offerors cannot expect the Agency to exhaustively describe the potential ways they 

might earn a strength by exceeding the solicitation’s requirements. Moreover, the fact that the 

Agency retained the guidelines for proposing NRCM flight instructors in the final solicitation, 

which incorporated amendments spurred by the offerors’ questions, bolsters defendant’s

interpretation. To the extent that S3 saw a contradiction between this provision and the 

Agency’s answers, it should have voiced its concerns regarding this ambiguity before the due 

date for proposals. See Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 

2007). Thus, reading the solicitation “as a whole, ‘in a manner that harmonizes and gives 

reasonable meaning to all of its provisions,’” Contract Serv., Inc. v. United States, 104 Fed. Cl. 

261, 275 (2012) (quoting Banknote Corp. of Am., 365 F.3d at 1353), the court must conclude 

that the Agency was permitted to award CAE a strength for this staffing proposal. 

D. Past Performance Factor 

L3 Doss’s next challenge concerns the Agency’s evaluation of the past performance 

factor. Specifically, L3 Doss alleges that the Agency unreasonably downgraded its incumbent 

contract reference to a satisfactory confidence rating due to scheduling issues, even though the 

PPET had concluded that L3 Doss was not entirely at fault and had instituted effective remedial 

measures. L3 Doss Mot. 23-24. L3 Doss also maintains that because of CAE’s 2017 flight 

accidents, the Agency should not have awarded CAE a substantial confidence rating for the 

corresponding contract reference.15 Id. at 25-27. L3 Doss considers this a glaring, prejudicial 

15

 While L3 Doss states in its motion that CAE received a satisfactory confidence rating 

for this contract, CAE actually received a substantial confidence rating. AR 5122, 5124. This 

misunderstanding originally appeared to be based on an error in the narrative summary of the 

initial past performance evaluation. Id. at 3518. In its response, however, L3 Doss shifts focus 

to the exact wording of the PPET evaluation for this contact reference: “[T]he Government has a 

reasonable expectation that the will [sic] offeror will successfully perform the required effort.” 

L3 Doss Resp. 16 (quoting AR 5124). L3 Doss now argues that the phrase “reasonable 

expectation” corresponds to a satisfactory confidence rating, while a substantial confidence 

rating would require a “high expectation.” Id. (quoting AR 593). However, as CAE emphasizes, 

the Agency also used this exact wording in reference to L3 Doss’s second contract reference, 

which also earned a substantial confidence rating. AR 5131. And in any event, the Agency itself 

ultimately showed no confusion regarding the proper rating for this contract reference, stating 

that CAE’s “service and performance [were] truly outstanding, defects were non-existent, [and] 

all contractual obligations were on-time” and that “the Government would assign this past 

performance reference a Substantial Confidence rating based upon the quality of the performance 

reference that was provided above.” Id. at 5123-24. The court accepts substantial confidence as 

the unequivocally intended rating for this contract. 
-22-

instance of disparate treatment. Id. at 27.

To establish the disparate treatment of its proposal, a protestor must demonstrate that “the 

agency unreasonably downgraded its proposal for deficiencies that were ‘substantively 

indistinguishable’ or nearly identical from those contained in other proposals.” Office Design 

Grp. v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020). This standard, newly articulated by 

the United States Court of Appeals for the Federal Circuit, sets a particularly high bar in the past 

performance context. The qualitative assessments involved in evaluating past performance “lie 

at the heart of the Agency’s prerogative, since it is the agency that must bear the burden of any 

difficulties resulting from a defective evaluation, and we will not substitute our judgment for a 

reasonably based past performance rating.” DynCorp Int’l LCC v. United States, 139 Fed. Cl. 

481, 489-90 (2018). Thus, “when a Court reviews an evaluation of past performance . . . , ‘the 

greatest deference possible is given to the agency . . . .’” Walden Sec. v. United States, 136 Fed. 

Cl. 216, 229 (2018) (quoting Gulf Grp., Inc. v. United States, 61 Fed. Cl. 338, 351 (2004)). 

The court first considered this aspect of L3 Doss’s past performance evaluation in its 

decision on S3’s initial protest. Sys. Studies, 146 Fed. Cl. at 200-01. There, the court 

determined that the Agency had properly accounted for L3 Doss’s staffing issues, id., and the 

court reaches the same conclusion now. The SSA weighed the relative effectiveness of both 

CAE and L3 Doss’s strategies for coping with industry staffing challenges, and properly 

documented her decision. Compare AR 5129 (noting that after corrective action L3 Doss was 

still “unable to meet the full requirements of PWS paragraph 5.4.2” and that its remedial 

measures had been only “somewhat effective”), with id. at 5125 (noting CAE’s “[. . .]” and its 

progress towards resolving pilot shortages). 

The court similarly sees no error in the Agency’s consideration of CAE’s accident 

history. “A past performance evaluation is reasonable when the Agency gave ‘meaningful 

consideration’ to any possible adverse past performance information documented in the offeror’s 

record.” Fluor Intercontinental, Inc. v. United States, 147 Fed. Cl. 309, 329 (2020), appeal 

docketed, No. 20-1615 (Fed. Cir. Mar. 26, 2020). The Agency did exactly that. On remand, the 

SSA thoroughly documented her investigation into both the March 2017 and October 2017 

incidents, considering the circumstances of the accidents themselves and CAE’s effective 

corrective action. AR 5566-69. The SSA determined that CAE’s performance for this contract 

still merited a substantial confidence rating after meaningful consideration, and the court has no 

basis on which to challenge this conclusion. 

On their face, the decidedly distinct issues of staffing shortages and accident response are 

a poor fit for the Office Design Group “substantively indistinguishable” requirement. Moreover, 

the court finds nothing irrational in the Agency’s consideration of either issue. The court 

therefore will not disturb the Agency’s well-reasoned evaluation of the past performance factor. 

E. Small Business Participation Factor

L3 Doss also maintains that although the Agency assigned its proposal a Good rating 

under Factor 4, small business participation, the proposal actually qualified for an Outstanding 
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rating. L3 Doss Mot. 28. Because L3 Doss has consistently exceeded its small business

participation goals on past contracts, it argues, the government should have acknowledged its 

“significant utilization of small business firms in prior contracts.” Id. (citing AR 593). This 

adjustment would have allegedly earned L3 Doss an overall small business participation rating of 

Outstanding. Id. at 28-29. In response, defendant insists that “L3’s small business utilization in 

past contracts was not an issue identified by the SSEB as driving their overall small business 

participation rating,” and notes that “CAE’s proposal was treated similarly.” Def. Mot. 28-29. 

Defendant alternatively argues that even if this criterion should have played a more prominent 

role in L3 Doss’s rating, CAE still offered a superior prior small business utilization rate:

CAE Reference 

Contract

Proposed Goal Achievement Delta

[. . .] [. . .] [. . .] [. . .]

[. . .] [. . .] [. . .] [. . .]

[. . .] [. . .] [. . .] [. . .]

Id. at 29-30 (citing AR 4778). This, the Agency contends, stands in sharp contracts to L3 Doss’s 

rates:

L3 Reference 

Contract

Proposed Goal Achievement Delta

[. . .] [. . .] [. . .] [. . .]

[. . .] [. . .] [. . .] [. . .]

[. . .] [. . .] [. . .] [. . .]

Id. at 30 (citing AR 4794). Defendant thus maintains that if L3 Doss deserved an Outstanding 

rating, so did CAE. Id.

The Agency offered little explanation in the SSD for downplaying the significance of the 

offerors’ utilization of small business firms in prior contracts. However, even if this constitutes 

error, L3 Doss has failed to demonstrate that the error was prejudicial. CAE’s prior contracts 

show significantly higher rates of small business utilization than any of L3 Doss’s. True, L3 

Doss achieved a greater delta between its proposed goals and its achievements on each prior 

contract, but CAE’s much-higher goals left little room for a positive delta to begin with.16 

Although L3 Doss alleges that this high rate is “merely a product of the types of contracts [CAE] 

has performed in the past,” L3 Doss Resp. 22, L3 Doss points to nothing in the solicitation that 

would require consideration of contract type when evaluating small business utilization. See AR 

593 (indicating that the solicitation would consider “[t]he extent of [each offeror’s] utilization of 

small business firms on prior contracts”). L3 Doss has not established that, but for this purported

error, “there was a reasonable likelihood that [it] would have been awarded the contract.” Data 

16

 Significantly, CAE only failed to reach or exceed its proposed goal when it aimed to 

achieve 100% small business utilization. AR 4778.
-24-

Gen. Corp., 78 F.3d at 1562.

F. Best Value Tradeoff

Finally, both plaintiffs fervently object to the new best value tradeoff made by the SSA. 

L3 Doss objects to the SSA’s statement that “CAE’s price is comparable to the other offerors,” 

emphasizing that CAE’s total evaluated price of $96,655,774.45 is approximately $[. . .] more 

than L3 Doss’s total evaluated price of $[. . .]. L3 Doss Mot. 32 (quoting AR 4873). S3 

contends that the SSA improperly emphasized CAE’s achievements under the staffing factor, 

while improperly minimizing the value of the other factors. S3 Mot. 31-36. 

The FAR authorizes a best value tradeoff process “when it may be in the best interest of 

the Government to consider award to other than the lowest priced offeror or other than the 

highest technically rated offeror.” FAR 15.101-1(a). However, selection of a more expensive 

proposal requires explanation: The “perceived benefits of the higher priced proposal shall merit 

the additional cost, and the rationale for [the SSA’s] tradeoffs must be documented.” FAR 

15.101-1(c). This tradeoff analysis “obliges the agency to do more than simply parrot back the 

strengths and weaknesses of the competing proposals—rather, the agency must dig deeper and 

determine whether the relative strengths and weaknesses of the competing proposals are such 

that it is worth paying a higher price.” Serco Inc. v. United States, 81 Fed. Cl. 463, 497 (2008). 

At the same time, the FAR recognizes that this “documentation need not quantify the tradeoffs 

that led to the decision.” FAR 15.308.

In the course of her tradeoff analysis, the SSA noted the savings the Agency stood to 

realize from CAE’s [. . .] proposal. The court has found this strength to be an error, but it must 

still consider whether the error prejudiced plaintiffs. Neither plaintiff has demonstrated that, if 

the Agency had not awarded this strength to CAE, “there was a substantial chance it would have 

received the contract award.” Galen Med. Assocs., 369 F.3d at 1331 (quoting Statistica, Inc. v. 

Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996)). Unlike the other strengths awarded to the 

offerors, CAE’s [. . .] strength was based on cost rather than any quality that “exceeds specified 

performance or capability requirements.” AR 590. Had the strength significantly impacted her 

analysis, one would expect to see the SSA incorporate it into her discussion of comparative 

proposal price. Such a discussion is conspicuously absent. See id. at 4870. This omission is 

further evidence that the strength was inappropriate to begin with; it is difficult to imagine how 

the SSA could have incorporated such speculative cost savings into her analysis. However, it 

also speaks to the strength’s lack of influence on the best value tradeoff. 

The SSA did not consider CAE’s lead under the staffing factor be a close one, noting: 

“Despite receiving equal ratings for Factor 2, Outstanding, CAE’s proposal is clearly superior to 

the other offerors’ Factor 2 proposals due to numerous strengths in CAE’s proposal . . . .” Id. at

4863. Eliminating the [. . .] strength, CAE would be left with four strengths under the staffing

factor, two of which were not proposed by any other offeror. Id. at 4864-65. The next closest 

offeror for that factor, L3 Doss, would still have only three strengths. For the technical 

capability factor, in contrast, CAE and S3 both earned two strengths and an Outstanding rating, 

while L3 Doss lagged behind with only one strength and a Good rating. What is more, the SSA 
-25-

repeatedly emphasized CAE’s high number of FTEs. See id. at 4864 (“CAE proposes manning 

levels [. . .]% to [. . .]% greater than the number of [FTEs] the Government estimated as 

necessary . . . for minimal manning requirements.”), 4868 (demonstrating that CAE proposed 

[. . .] more FTEs than L3 Doss, which proposed the next-highest number of FTEs), 4872 

(emphasizing that “the Government will realize significant benefits” from, among other 

advantages, the [. . .] additional FTEs). This advantage is completely distinct from the question 

of how an offeror billed [. . .]. In other words, loss of the [. . .] strength would not have disturbed 

CAE’s lead.

As for the remainder of the SSA’s best value tradeoff, the court finds no error. From the 

beginning of this requirement, the Agency has placed considerable emphasis on staffing and 

continuity. For instance, regarding the contract’s technical risk, the Agency stated:

The ability to adequately staff qualified personnel is critical to the 

accomplishment of the mission. If the contractor’s instructor pilot trainer and 

management staffing is inadequate, either due to lack of sufficient number of 

personnel or lack of properly qualified personnel, the quality and validity of the 

service will be degraded.

Id. at 156; see also id. at 157 (discussing the contract’s schedule risk), 4864 (noting that “turnover of highly trained and experienced personnel is an issue in this program”). This emphasis is 

reflected in the solicitation. Thus, it is no surprise that the SSA placed great emphasis on 

weighing the offerors’ strengths under the first two factors—the solicitation required that the 

technical capability and staffing factors be considered “more importan[t] [than] all other nonprice factors.” Id. at 588. These factors are precisely where CAE distinguished itself. As the 

SSA explained: “Because CAE is the highest rated proposal under Factors 1 and 2, which 

combined are more important than all other non-price factors the slight differences in proposals 

under Factors 3 and 4 did not change my decision to award to CAE.” Id. at 4872. 

After laying out the relative advantages and disadvantages of each proposal under each 

factor, the SSA appropriately compared and contrasted the proposals. She noted CAE’s 

strengths and specifically described the advantages the Agency stood to gain from them. Id. at

4872-73; see also id. at 4865 (emphasizing that “the only aspect of another offeror’s [staffing 

factor] proposal that CAE’s proposal does not contain” was a strength related to [. . .] from 

[. . .]’s “lower rated” proposal), 4866 (calling CAE’s [. . .] section “even more advantageous” 

than L3 Doss’s proposal for the same section). She did not explicitly quantify how CAE’s price 

premium would be “made up” over the course of performance, nor was she required to. “[I]n 

performing the tradeoff analysis, the agency need neither assign an exact dollar value to the 

worth associated with the technical benefits of a contract nor otherwise quantify the non-cost 

factors.”17 Serco, 81 Fed. Cl. at 497. The SSA documented the strengths offered by CAE, such 

17

 L3 Doss seems to suggest that the SSA erred by failing to consider its price side-byside with that of CAE: “In violation of FAR 15.308, . . . the SSA did not even consider CAE’s 

price premium over L3 Doss in the Source Selection Decision, but focused instead on a price 

comparison between CAE and S3, which had a higher total evaluated price than L3 Doss.” L3 
-26-

as its ability to “overcome the aviation industry challenges of recruiting and retention,” AR 4264, 

in a manner appropriate for such noncost factors, and reasonably concluded that those strengths 

outweighed the price premium associated with CAE’s proposal. 

In compliance with FAR 15.04(e)(2), the Agency chose to make the solicitation’s 

nonprice factors “significantly more important” than price. See AR 4871. The SSA stayed true 

to this obligation, and the solicitation’s other guidelines, when she prioritized the first two factors 

and awarded the contract to CAE. The court finds no error in the SSA’s best value tradeoff 

analysis. 

III. CONCLUSION

Because plaintiffs have not succeeded on the merits of their protest, the court does not 

find it necessary to address their requests for injunctive relief. See PGBA, LLC v. United States, 

389 F.3d 1218, 1228-29 (Fed. Cir. 2004) (emphasizing that a party must demonstrate success on 

the merits of their case to obtain injunctive relief). Additionally, the court has considered all of 

the parties’ arguments; to the extent not discussed herein, they are unpersuasive, without merit, 

or unnecessary for resolving the issues currently before the court.

For the reasons discussed above: 

1. The court DENIES plaintiffs’ motions for judgment on the administrative 

record.

2. The court GRANTS defendant’s and CAE’s cross-motions for judgment on 

the administrative record. 

3. The court has filed this ruling under seal. The parties shall confer to 

determine agreed-to proposed redactions. Then, by no later than Monday, 

November 16, 2020, the parties shall file a joint status report indicating their 

agreement with the proposed redactions, attaching a copy of those pages of 

the court’s ruling containing proposed redactions, with all proposed 

redactions clearly indicated.

4. Further, the court reminds the parties of their obligation under paragraph 12 of 

the protective order filed on May 12, 2020, to file redacted versions of 

protected documents for the public record. If the parties have not already filed 

redacted versions of their motions and supporting briefs, they shall do so no 

later than Monday, November 16, 2020, or file a joint status explaining the 

reason for the delay. 

Doss Mot. 32. But “it simply is not true that the agency was compelled to compare all the 

offerors to each other—nothing in the FAR, nor any case construing it, remotely suggests this to 

be the case.” Serco, 81 Fed. Cl. at 500. Instead, “the selection of particular pairings is 

undoubtedly committed to agency discretion.” Id. 
-27-

5. The clerk is directed to enter judgment accordingly and dismiss the case. No 

costs. 

IT IS SO ORDERED.

s/ Margaret M. Sweeney 

MARGARET M. SWEENEY

Senior Judge