In the United States Court of Federal Claims

No. 16-817C

(Filed: November 30, 2016)*

*Opinion originally filed under seal on November 21, 2016

SALLYPORT GLOBAL HOLDINGS, 

INC., 

 Plaintiff,

v.

THE UNITED STATES,

Defendant,

and

EXP FEDERAL, INC.,

Defendant-Intervenor.

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Bid Protest; Motion for Judgment on 

the Administrative Record; United 

States Army Corps of Engineers; 

Harmless Error; Mandatory Minimum 

Requirements

Stuart B. Nibley, Washington, DC, for plaintiff. Andrew N. Cook, Amy M. Conant, 

and Christopher H. Bell, Washington, DC, of counsel. 

Anand R. Sambhwani, Commercial Litigation Branch, Civil Division, United 

States Department of Justice, Washington, DC, with whom were Benjamin C. Mizer, 

Principal Deputy Assistant Attorney General, Robert E. Kirschman, Jr., Director, and 

Douglas K. Mickle, Assistant Director, for defendant. C. Clay Weisenberger, Assistant 

Counsel, United States Army Corps of Engineers, Hunstville, AL, of counsel. 

Joseph D. West, Washington, DC, for defendant-intervenor. Lindsay M. Paulin, 

Washington, DC, of counsel. 
2

O P I N I O N 

FIRESTONE, Senior Judge.

This post-award bid protest concerns the unsuccessful bid of plaintiff Sallyport 

Global Holdings, Inc. (“Sallyport”) for a contract with defendant United States Army 

Corps of Engineers (the “agency” or “government”) to provide electrical safety 

assessments, repairs, materials and management within the United States Central 

Command. The contract was instead awarded to defendant-intervenor exp Federal Inc. 

(“exp Federal”), the incumbent contractor. Before the court are the parties’ crossmotions for judgment on the administrative record filed pursuant to Rule 52.1(c) of the 

Rules of the United States Court of Federal Claims (“RCFC”). 

Sallyport argues that the award to exp Federal should be set aside for three 

reasons. First, Sallyport argues that it was arbitrary and capricious for the agency to find 

that Sallyport’s proposal for the Project Manager position was deficient. Second, 

Sallyport argues that it was arbitrary and capricious for the agency to determine that 

Sallyport’s representatives improperly contacted agency personnel during a blackout 

period. Third, Sallyport argues it was arbitrary, capricious, and contrary to law for the 

agency to determine that exp Federal’s proposed Project Manager met the solicitation’s 

requirements. 

For the reasons explained below, the court finds that Sallyport has not met its 

burden of showing that the agency committed an error that prejudiced Sallyport. 

Therefore, the government and defendant-intervenor’s cross-motions for judgment on the 
3

administrative record are GRANTED and plaintiff’s motion for judgment on the 

administrative record is DENIED.

I. FACTS

A. The Solicitation 

The procurement at issue involves a firm fixed price Task Order (“Contract”) for 

Electrical Safety Assessments, Repairs Program, Materials Management, and Control 

Services within the United States Central Command’s Area of Responsibility 

(“CENTCOM AOR”), which includes Iraq, Jordan, Kuwait, the United Arab Emirates, 

Bahrain, and Qatar. AR 88-138. The Request for Quotations Letter No. 1037286

(“RFQ”), and accompanying Performance Work Statement (“PWS”),

1 issued on January 

14, 2016, sought proposals to provide low voltage electrical power systems in the Middle 

East. The contractor would be required to inspect, update, and repair electric/life/safety 

hazards for low voltage electrical power systems for facilities that house United States

service members. AR 122.

The solicitation provided that the contract would be awarded to the proposal that 

represented the “best overall value to the Government, with the appropriate consideration 

given to [ ] (3) evaluation factors.” Id. at 88. The three factors for the award were: (1) 

technical approach; (2) price/costs and related information; and (3) past performance. Id. 

The RFQ stated that the bidder’s technical approach was “slightly more important than 

price and significantly more important than past performance,” and that price will be the 

 1 This opinion refers to the RFQ and the PWS collectively as “the solicitation.” 
4

controlling factor if the “competing quotes are determined to be substantially equal after 

the evaluation of [the] [t]echnical [a]pproach and [p]ast performance.” Id. The technical 

factor included seven tasks, each of which could receive a possible rating, from worst to 

best, of “Unacceptable,” “Marginal,” “Acceptable,” “Good,” and “Outstanding.” Id. at 

89. Each proposal would receive an overall technical rating on the same scale, which the 

solicitation explained as follows:

Combined Technical/Risk Ratings

Rating Description

Outstanding Proposal meets requirements and indicates an exceptional 

approach and understanding of the requirements. Strengths far 

outweigh any weaknesses. Risk of unsuccessful performance is 

very low.

Good Proposal meets requirements and indicates a thorough approach 

and understanding of the requirements. Proposal contains at least 

one strength and no deficiencies. Risk of unsuccessful 

performance is low.

Acceptable Proposal meets requirements and indicates an adequate approach 

and understanding of the requirements. Strengths and weaknesses 

are offsetting or will have little or no impact on contract 

performance. Risk of unsuccessful performance is no worse than 

moderate.

Marginal Proposal does not clearly meet requirements and has not 

demonstrated an adequate approach and understanding of the 

requirements. The proposal has one or more weaknesses which 

are not offset by strengths. Risk of unsuccessful contract 

performance is high.

Unacceptable Proposal does not meet requirements and contains one or more 

deficiencies. Proposal is unawardable.

As the chart indicates, a proposal with a “deficiency” will automatically be deemed 

unacceptable. Further, the agency must rate the overall technical approach “Acceptable” 

or better in order to award the contract. Id. at 88. 
5

The RFQ included specific requirements for the some of personnel who would be 

performing the work, stating that a proposal must explain “how the offeror will meet the 

objectives of the PWS, and who will be performing the work.” Id. at 89. The solicitation 

required that offerors identify and include résumés for key personnel, including the 

Project Manager. PWS Section 2.2, “Key Personnel Qualifications,” stated that the 

Project Manager must meet the following requirements:

Project Manager. The Contractor shall designate a Project Manager (PM) 

for the overall contract who provides a single Point of Contact (POC) for 

the [contracting officer], provides programmatic reporting to USACE, and 

can address overall management and contracting issues. This individual 

shall have at least 3 years experience in general contract project 

management on programs similar in size and complexity to the effort 

described in this PWS. The PM shall have a Project Management 

certification from an accredited institution. The resume/qualifications for 

the selected PM must be submitted with the proposal. Any subsequent 

change in PM must be approved by the [contracting officer]. 

AR 124. The RFQ provided the following additional requirements for the Project 

Manager and other “Key deployed personnel”:

Key deployed personnel (Project Manager, Quality Control Manager, 

Property Control Manager, and Site Safety and Health Officer) shall have 5 

years minimum documented experience with 50 & 60 Hz electrical 

systems. These key personnel must have a Secret Security Clearance. They 

shall have a minimum of 1 year experience managing multiple teams 

working in remote environments. The government will evaluate 

documented experience supporting contingency or remote operations more 

favorably.

AR 89.
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B. The Proposals

The agency received proposals from three companies: Sallyport, exp Federal (who 

was the incumbent on this contract), and [xxxxx]. [xxxxx] received a “Marginal” overall 

rating on its technical proposal and, because it did not receive an “Acceptable” rating or 

better, was eliminated from the competition, AR 500. Sallyport and exp Federal’s 

proposals, and the agency’s evaluation, are discussed below.

1. Sallyport’s Proposal

Sallyport submitted its proposal on February 2, 2016, with a proposed total price 

of $[xxxxxxxxxxxx] for the base and option periods. See id. at 278-364. Sallyport 

proposed that two individuals would jointly serve as Project Manager. The first Project 

Manager, James Johnston, would be working from the continental United States and the 

other, Kevin June, would be working on site in CENTCOM AOR and would also serve 

as the Site Safety and Health Officer. Id. at 282-88. Though the proposal stated that Mr. 

June would be serving as “On-site Project Manager,” Mr. June does not have a project 

manager certification as required by the PWS. Id. at 298-99 (Mr. June’s résumé); 124 

(Project Manager qualifications).

On or around February 10, 2016, two Army project managers, Frederick Cartes

and Richard Locklair, conducted a technical evaluation of Sallyport’s proposal. Id. at 

450. The technical evaluation reiterated the rating scheme that was identified in the RFQ 

and was used to rate each of the identified tasks. Id. Sallyport received a “Good” rating 

in four out of the seven tasks and an “Acceptable” rating for Task 5, “other direct costs.” 
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Id. at 462. However, in Task 2, “Electrical Assessment, Update, and Repair,” Sallyport 

received an “Unacceptable” rating, thus receiving an overall “Unacceptable” rating in the 

technical factor. Id. The “Unacceptable” rating was based on one “deficiency” and one 

“weakness.” Id. at 459-68.

The technical evaluation determined that a “deficiency” existed in Sallyport’s 

proposal as a result of its Project Manager structure:

(Deficiency) Project Manager James Johnston’s resume demonstrates all of 

the requirements of PWS 2.2. The organization chart on p.5 Figure 1 shows 

James Johnston color coded as a key personnel, but that he is the CONUS 

Project Manager. Proposal p.3 section 1 states that Mr. June will handle 

operational activities and report to Mr. Johnston on a regular basis. Figure 1 

and section 1 show that the functions of the lead Project Manager are being 

performed by Mr. June, however RFQ page 2 specified that the PMP 

Project Manager will be forward deployed.

Id. at 460. In other words, the agency found that the RFQ required the Project Manager 

to be deployed to the worksite based on the RFQ’s inclusion of the Project Manager in 

the category of “Key deployed personnel.” See AR 89 (“Key deployed personnel 

(Project Manager, Quality Control Manager, Property Control Manager, and Site Safety 

and Health Officer) shall have 5 years minimum documented experience . . . .”). 

However, under Sallyport’s proposal, Mr. Johnston, who met the PWS’s requirements 

that a Project Manager have three years “experience in general contract project 

management” on similar projects and “a Project Management certification from an 

accredited institution,” AR 124, as well as the RFQ’s requirements all key personnel, 

including the Project Manager, have the requisite electrical experience and a security 

clearance, AR 89, would not be deployed. Rather, Sallyport proposed that Mr. June (who 
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met the RFQ’s technical requirements, but did not have the requisite Project Manager 

certification) would be deployed as the Project Manager. Id. at 289-90. The agency 

found that Sallyport’s proposal contained a deficiency because Sallyport failed to propose 

deploying a Project Manager meeting all the solicitation’s requirements. 

The technical evaluation also identified a “weakness” in Sallyport’s proposal 

because the agency found that Sallyport had an improper contract with the agency during 

a “blackout” period. Id. at 459. The solicitation instructed that:

The offeror shall NOT engage in any form of contact with installation 

personnel/or Installation DPW personnel regarding this requirement prior to 

submission of quotation and Task Order Award. Contact regarding the 

requirements set forth in this RFQ shall only occur with the Contract 

Specialist or Contracting Officer. Discussions or information obtained via 

other sources could make you ineligible for award if deemed a Conflict of 

Interest or a Violation of Procurement Integrity Act.

Id. at 92. In its proposal, Sallyport included a statement indicating that it had a “recent” 

communication with the agency:

Based on our prior experience and recent communications with the 249th Prime

Power Engineering Battalion who has performed this work in Jordan, we 

understand that grounding and bonding deficiencies are the predominant life 

safety hazard we may encounter.

Id. at 287. The agency assumed that the contact occurred after the solicitation was issued

and found that the contact demonstrated a “‘Weakness’ regarding [Sallyport’s]

understanding of the Contracting Officer’s direction.” Id. at 459. However, according to 

a declaration from Sallyport’s principal, David Banks, which the government does not 

dispute, the meeting between Sallyport personnel and the agency occurred before the 

solicitation was issued and was therefore not improper. See Decl. of David Banks ¶¶ 3-7. 
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On March 23, 2016, the Contracting Officer, John Cominotto and the Contract 

Specialist, Kimberly Robinson, jointly prepared a Combined Pre-Negotiation 

Memorandum/Price Negotiation Memorandum (“POM/PNM”), which included a 

verbatim copy of the technical evaluation. AR 489-91. The body of the POM/PNM 

identified a “deficiency” with respect to Sallyport’s proposed key Project Managers and 

“weakness” with respect to the agency’s assumption that Sallyport had improper 

communications with the agency. Id. at 495. However, in the concluding paragraph, 

which summarized the technical evaluation, the POM/PNM document referred to two 

deficiencies instead of a deficiency and a weakness. Id. at 500. The POM/PNM 

concluded that Sallyport’s proposal was rated “Unacceptable” and thus ineligible for 

award because it was “proposing a stateside Project Manager when the RFQ directly 

stated that the Project Manager should be forward deployed in the CENTCOM AOR.” 

Id. at 500-501. 

2. exp Federal’s Proposal

On February 2, 2016, exp Federal submitted its proposal which included a 

proposed price of $15,695,915.30 for the base and option periods. Id. at 229-77. For its 

Project Manager, exp Federal submitted the résumé of Khalil Al-Amin, which stated in 

the “Education” section that Mr. Al-Amin has a “Master Certificate, 2014, Mastering 

Project Management.” Id. at 249. Mr. Al-Amin’s resume also listed “additional 

education in . . . Project Management (Master Certificate).” Id. The agency’s 

assessment of Task 2, which included key personnel, stated that “Project Manager Khalil 
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Al-Amin[’s] resume demonstrates all of the requirements of PWS 2.2 and RFQ letter 

p.2.” Id. at 492. The agency assigned exp Federal a “Good” overall technical rating and 

a “Good” rating on each of the subfactors except Task 5, “Other Indirect Costs,” in 

which exp Federal received an “Acceptable” rating. Id. at 491. The Army determined 

that exp Federal’s proposal was fair and reasonable and recommended that exp Federal 

receive the award. Id. at 501. On March 31, 2016, exp Federal was awarded the 

contract. Id. at 503.

C. Sallyport’s GAO Protest 

Sallyport filed a protest before the Government Accountability Office (“GAO”) on 

April 25, 2016. Id. at 573. Before the GAO, Sallyport complained that it had requested a 

debriefing, but had not yet received one from the agency. Id. at 575. Sallyport argued 

that the agency had not explained why it had found Sallyport’s proposal unacceptable and 

argued that had the agency evaluated the proposal according to the solicitation’s criteria, 

including taking into account the fact that Sallyport’s proposed price was approximately 

$[xxxxxxx] less than the awardee’s, Sallyport would have had a substantial likelihood of 

receiving the award. Id. a 576-77. The following day, April 26, 2016, the agency filed a 

notice of corrective action stating that it would provide a post-award notice as required 

under FAR § 8.405-2(d). Id. at 715. Sallyport withdrew its protest on May 2, 2016. Id.

at 716.
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D. Sallyport’s Complaint in this Court and Motion to Supplement the 

Administrative Record

Sallyport filed is bid protest in this court on July 8, 2016, seeking preliminary and 

permanent injunctive relief. See Compl., ECF No. 1. On July 11, 2016, counsel for the 

government gave Sallyport a redacted version of the POM/PNM, which the government 

argues demonstrates that Sallyport’s proposal was correctly rejected because of a 

deficiency with respect to Sallyport’s proposed Project Manager. See Pl. Mot. to Supp. at 

2, ECF No. 23. On July 12, 2016, the court held an initial status conference setting an 

accelerated briefing schedule on the parties’ cross-motions for judgment on the 

administrative record and Sallyport withdrew its request for preliminary injunctive relief. 

See Scheduling Order, ECF No. 14. 

On July 18, 2016, Sallyport filed its motion to supplement the administrative 

record. Pl. Mot. to Supp., ECF No 23. Sallyport moved to supplement the administrative 

record with respect to three issues. First, Sallyport asked the court to consider the 

declaration of Sallyport’s principal, David Banks stating that the contact between Mr. 

Banks and the agency was before the blackout period and therefore not improper. 

Second, with respect to the agency’s finding that the solicitation did not allow Sallyport 

to split the qualifications and responsibilities of a Project Manager between two 

individuals, Sallyport asked the court to consider the fact that Sallyport had successfully 

completed similar contracts with the same Project Manager structure it proposed in this 

procurement. Third, Sallyport wished to offer evidence that the person Sallyport believed 
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to be exp Federal’s proposed Project Manager did not meet the solicitation’s certification 

requirements.

On July 22, 2016, the court granted Sallyport’s motion in part and denied in part. 

Order, ECF No. 37. The court permitted Sallyport to supplement the record with 

paragraphs 1-10 of Mr. Banks’s supplemental declaration, in which Mr. Banks stated that 

his communication with the agency occurred before the blackout period. Supp. Banks. 

Decl., ¶¶ 1-10, ECF No. 34-1. However, the court denied the motion to supplement with 

respect to all other issues. The court found that Sallyport’s evidence that it had 

performed other contracts with the agency using a two-Project Manager structure was not 

relevant because the agency was not bound by its previous decisions and the relevant 

question was whether the agency had reasonably interpreted the solicitation for this 

procurement. See Phoenix Mgmt., Inc. v. United States, 125 Fed. Cl. 170, 178 (2016) 

(denying motion to supplement with identical procurement which the agency had 

corrected because it was unnecessary for judicial review); Guardian Moving & Storage 

Co. v. United States, 122 Fed. Cl. 117, 132 n.6 (2015) (denying motion to supplement 

with previous proposal that had been awarded the contract because the record was 

sufficient for judicial review). With respect to the third issue, the record demonstrated 

that Sallyport was mistaken as to the identity of exp Federal’s proposed Project Manager

and therefore supplementation not necessary.

Briefing on the parties’ cross-motions for judgment on the AR was completed on 

August 30, 2016. The court held oral argument on October 27, 2016.
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II. STANDARD OF REVIEW

The standard of review in the Administrative Procedure Act (“APA”), 5 U.S.C. § 

706, governs the court’s review of an agency action in a bid protest case. See 28 U.S.C. § 

1491(b)(4). The APA standard is “highly deferential” to the agency’s decision. 

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

An agency’s action may only be set aside if it was “arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law.” Palladian Partners, Inc. v. United 

States, 783 F.3d 1243, 1252 (Fed. Cir. 2015) (quoting Savantage Fin. Servs. v. United 

States, 595 F.3d 1282, 1285 (Fed. Cir. 2010)). In that connection, “[t]he court’s task is to 

determine whether ‘(1) the procurement official’s decision lacked a rational basis; or (2) 

the procurement procedure involved a violation of regulation or procedure.’” Id. (quoting 

Savantage, 595 F.3d at 1285-86). The court will find that an agency’s decision is 

“arbitrary and capricious when the agency ‘entirely failed to consider an important aspect 

of the problem, offered an explanation for its decision that runs counter to the evidence 

before the agency, or [the decision] is so implausible that it could not be ascribed to a 

difference in view or the product of agency expertise.’” Ala. Aircraft Indus., Inc.-

Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor 

Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 

(1983)). 

Further, even if the court finds agency action arbitrary and capricious, the court 

must also “determine, as a factual matter, if the bid protester was prejudiced by that 
14

conduct” before disturbing the results of a procurement. Bannum, Inc. v. United States,

404 F.3d 1346, 1351 (Fed. Cir. 2005). In order to establish prejudice, the protester must 

show that there was a “substantial chance” it would have received the award but for the 

agency’s errors. Id. (citing Info. Tech. & Applications Corp. v. United States, 316 F.3d 

1312, 1318-19 (Fed. Cir. 2003)). “De minimis errors in the procurement process do not 

justify relief.” Croman Corp. v. United States, 106 Fed. Cl. 198, 216 (2012), aff’d, 724 

F.3d 1357 (Fed. Cir. 2013) (citing Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 

1000 (Fed. Cir. 1996)). 

III. DISCUSSION

A. The Agency Reasonably Determined that Sallyport’s Project Manager 

Proposal was Deficient

As discussed above, Sallyport proposed two individuals to fill the Project Manager 

position: Mr. Johnston, who met all of the solicitation’s requirements would be working 

from the United States, and Mr. June, who did not have the required certification but 

would be deployed to the Middle East. The agency concluded that Sallyport had 

“propos[ed] a stateside project manager when the RFQ directly stated that the Project 

Manager should be forward deployed to the CENTCOM AOR,” AR 501, and therefore 

Sallyport’s proposal contained a deficiency rendering it “Unacceptable” and ineligible for 

award. 

Sallyport argues that the agency acted improperly when it concluded that the 

solicitation required the Project Manager to be deployed. According to Sallyport, the

solicitation “did not make the concept of ‘deployment’ of a proposed Project Manager a 
15

mandatory minimum requirement, it did not make it a requirement at all.” Pl.’s MJAR 

12. The court disagrees with Sallyport and finds that the agency reasonably interpreted 

the solicitation to find that it required a deployed Project Manager meeting all of the 

solicitation’s qualification requirements. It is clear that the solicitation requires the 

Project Manager to be deployed. Looking first to the language directly addressing the 

Project Manager and other key personnel in the RFQ, the court finds that the solicitation 

clearly contemplates a deployed Project Manager: 

Key deployed personnel (Project Manager, Quality Control Manager, 

Property Control Manager, and Site Safety and Health Officer) shall have 5 

years minimum documented experience with 50 & 60 Hz electrical 

systems. These key personnel must have a Secret Security Clearance. . . . .

AR 89 (emphasis added). The Project Manager is listed first in the category of key 

“deployed” personnel that will be performing the work under the contract. As the 

government notes, the natural reading of that section of the solicitation demonstrates that 

the “Project Manager” is included in the category of “Key deployed personnel.” Thus, 

the RFQ unambiguously required that the Project Manager be deployed. 

Sallyport reads the “key personnel” language quoted above as only setting the 

requirements for the key personnel if the contractor chooses to deploy that person. In 

other words, the contractor is not required to deploy a Project Manager, or any other key 

personnel, but if it does choose to deploy them, they must have certain specified 

qualifications (such as a security clearance and electrical experience, see AR 89). The 

court finds this to be a strained, unnatural reading of the solicitation’s language. In 

addition, Sallyport’s reasoning would mean that deploying any key personnel was 
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optional, including those who must necessarily be on site to do their jobs such as the 

Property Control Manager and the Site Safety and Health Officer. 

Moreover, the solicitation’s language read in context of the solicitation as a whole, 

see Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1354 (Fed. Cir. 2004),

confirms that the solicitation contemplated that the Project Manager would be deployed.

The Project Manager acts as the “single Point of Contact (POC) for the KO, provides 

programmatic reporting to USACE, and can address overall management and contracting 

issues.” Id. at 124. In addition, the Project Manager, and all “Key deployed personnel,” 

are required to have “a minimum of 1 year experience managing multiple teams working 

in remote environments.” Id. at 89. These specifications demonstrate that the Project 

Manager must be deployed to the work site to be effective. Other provisions in the 

solicitation further support the conclusion that the Project Manager has to be deployed. 

For example, the solicitation stated that the Project Manager is “authorized a vehicle” and 

a satellite phone to insure that required tasks are performed, both of which would be 

unnecessary if the work could be performed from the United States. Id. at 130, 133. In 

addition, the solicitation stated that after the award, the Army would hold a “[k]ick-off 

meeting” to “brief key personnel” which would take place via video teleconference at 

“key locations, prior to personnel pushing from hubs [i.e., Kuwait and Jordan] to the 

work areas.” Id. at 132 (kick-off meeting requirement); id. at 125 (defining hub). 

Sallyport argues that, even if the solicitation required the Project Manager to be 

deployed, Sallyport’s proposal met that requirement by proposing that Mr. June serve as 
17

the deployed Project Manager. In effect, Sallyport is arguing that two individuals, neither 

of which meets all of the solicitation’s requirements independently, can satisfy the terms 

of the solicitation when combined together. Sallyport notes that the PWS and the RFQ 

contain different descriptions for the Project Manager, with the RFQ detailing the 

required technical experience, see AR 89 (key personnel, including Project Manager must 

have “5 years minimum documented experience with 50 & 60 Hz electrical systems”), 

and the PWS discussing the managerial requirements (Project Manager “shall have at 

least 3 years experience in general contract project management on programs similar in 

size and complexity” and a “Project Manager certification from an accredited 

institution”). Sallyport argues that the “two distinct skill sets described in the RFQ and 

PWS contemplate that offerors can best meet the Agency’s needs by proposing two 

individuals to meet the requirements of the solicitation.” Pl.’s MJAR 22. 

The court disagrees and finds that the solicitation plainly required that a single 

individual meet all the solicitation’s requirements, including the deployment requirement, 

to serve as the Project Manager. The fact that the solicitation contains two sets of 

requirements for the Project Manager does not imply that solicitation contemplated two 

individuals would fill that position. While the RFQ sets forth the high-level requirements 

for all key personnel, i.e. the Project Manager, Quality Control Manager, Property 

Control Manager, and Site Safety and Health Officer must have a security clearance and 

electrical experience, the PWS contains additional requirements specific to each of the 

four positions. Rather than implying that the requirements for any of these positions can 
18

be split amongst two people, the solicitation contemplates that an individual proposed for 

each position must meet the requirements in both the PWS and the RFQ.

Sallyport also argues that a dual Project Manager structure was allowable because 

the solicitation contemplated that another position, the Site Safety and Health Officer, 

could be filled by an individual also acting as the Project Manager. See AR 124 

(“Individual Site Safety and Health Officer need not be a full time responsibility. This 

position can be dual hatted with one other key personnel position.”). However, the court 

finds that the fact that a Project Manager was also permitted to serve as the Site Safety 

and Health Officer has no bearing on the question of whether multiple individuals could 

jointly act as Project Manager. As the government notes, the solicitation refers to the 

Project Manager using singular pronouns, adjectives, and verbs:

Project Manager. The Contractor shall designate a Project Manager (PM) 

for the overall contract who provides a single Point of Contact (POC) for 

the KO, provides programmatic reporting to USACE, and can address 

overall management and contracting issues. This individual shall have at 

least 3 years experience in general contract project management on 

programs similar in size and complexity to the effort described in this PWS. 

The PM shall have a Project Management certification from an accredited 

institution. The resume/qualifications for the selected PM must be 

submitted with the proposal. Any subsequent change in PM must be 

approved by the KO. 

AR 124 (emphasis added). In addition to the solicitation’s grammatical implication that 

the Project Manager is to be one person, the solicitation specifically refers to the Project 

Manager as a “single Point of Contact” with the agency. Id. This characterization 

demonstrates the agency’s determination that communication with the contractor would 
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be most efficient if streamlined through one previously-identified individual meeting all 

of the solicitation’s requirements. 

Finally, Sallyport argues the agency acted arbitrarily and capriciously in finding 

that a deployed Project Manager was a mandatory requirement and could thus give rise to 

a “deficiency” under the terms of the solicitation. The solicitation stated that if a

proposal “does not meet the requirements and contains one or more deficiencies,” the 

“[p]roposal is unawardable” and will be deemed “unacceptable.” AR 89 (emphasis 

added). Sallyport cites case law stating that a “mandatory minimum requirement must be 

clearly identified as such within the solicitation so as to ‘put offerors on notice’ of the 

serious consequences of failing to meet the requirement.” ManTech Telecomms. & Info. 

Sys. Corp. v. United States, 49 Fed. Cl. 57, 67 (2001), aff’d, 30 F. App’x 995 (Fed. Cir. 

2002) (quoting Isratex, Inc. v. United States, 25 Cl. Ct. 223, 229 (1992).2

 According to 

Sallyport, the agency erred in finding a “deficiency” because the solicitation did not put it 

on notice that the deployment requirement would be treated as a disqualifying. Sallyport 

argues that when the solicitation created mandatory requirements, it used clearly 

mandatory language, i.e., the Project Manager “shall have at least 3 years experience in 

general contract project management.” AR 124 (emphasis added). Sallyport argues that 

because the solicitation did not state that the Project Manager “shall” be deployed,

 2 Sallyport also argues that the agency acted unreasonably in making a deployed Project Manager 

a mandatory requirement because Sallyport had previously performed contracts with the agency 

in remote locations using a Project Manager working remotely from the United States. However, 

as discussed above, the court has already denied Sallyport’s motion to supplement the 

administrative record with respect to this issue. 
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Sallyport it did not understand that deployment of the Project Manager was a mandatory 

requirement. 

The court finds that Sallyport's arguments are without merit. As discussed at 

length above, the solicitation clearly required offerors to identify a single Project 

Manager meeting all the solicitation’s requirements as one of the key personnel to be 

deployed. Given the plain language of the solicitation, the court finds that Sallyport was 

on notice that deployment of a Project Manager was a mandatory requirement.

Moreover, to the extent Sallyport had any question about whether the Project Manager 

needed to be deployed, the RFQ gave Sallyport an opportunity to ask questions to the 

contracting officer “regarding the requirements set forth in this RFQ.” Id. at 92. It is 

simply too late for Sallyport to now question the requirements in the RFQ.3

 

Accordingly, for all of the above stated reasons, the court finds that the record 

supports the agency’s finding that Sallyport’s proposed Project Manager structure was a 

deficiency rendering Sallyport’s proposal unacceptable. 

 3 The government argues that, to the extent that Sallyport is arguing that the requirement was 

ambiguous, any ambiguity was patent and thus Sallyport waived its right to challenge the 

deployment requirement by failing to challenge the requirement before proposals were 

submitted. See Blue & Gold Fleet, LP v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007) 

(finding that “a party who has the opportunity to object to the terms of a government solicitation 

containing a patent error and fails to do so prior to the close of the bidding process waives its 

ability to raise the same objection afterwards in a § 1491(b) action in the Court of Federal 

Claims.”). While the court finds that the solicitation was not ambiguous, to the extent Sallyport 

was confused as to whether deployment of the Project Manager was mandatory because the 

agency did not use the term “shall,” that issue was clear from the face of the solicitation and 

because it was not hidden it had to be raised at the proper time either before the agency or court.
21

B. The Agency’s Treatment of Sallyport’s Alleged Improper Contact did 

not Impact the Outcome of the Procurement

As discussed above, the agency gave Sallyport’s proposal a “weakness” because 

the agency believed, based upon a statement in Sallyport’s proposal that Sallyport 

employees had “recent” communication with the agency, that Sallyport had improperly 

contacted the agency during the blackout period where no contact between the agency 

and the bidders was permitted. See AR 459. The court allowed Sallyport to supplement 

the administrative record with the declaration of Mr. Banks stating that the contact 

between Mr. Banks and the agency was before the blackout period and therefore not 

improper. The agency does not challenge Sallyport’s sworn testimony that the contact 

actually came before the blackout period, but maintains that the agency nevertheless 

acted reasonably in interpreting the word “recent” to mean the contact occurred during 

the approximately two-week blackout period after the solicitation was issued and before 

proposals were due.

The court finds that the agency’s assumption was arbitrary and capricious. In its 

proposal, Sallyport stated that:

Based on our prior experience and recent communications with the 249th 

Prime Power Engineering Battalion who has performed this work in Jordan, 

we understand that grounding and bonding deficiencies are the predominant 

life safety hazard we may encounter.

AR 287. In the technical evaluation, the agency found, based on that sentence, that:

Sallyport contacted the 249th prime power, but did not request or receive 

authorization from the Contract Specialist or Contracting Officer to obtain 

information pertaining to this RFQ. This demonstrates a “Weakness” 
22

regarding the company’s understanding of the Contracting Officer’s 

direction.

Id. at 459. According to Mr. Banks’s declaration, Sallyport’s representative actually met 

with the contracting officer on May 26, 2016. See Banks Decl. ¶¶ 4-6. The court finds 

that agency acted unreasonably in assuming, without seeking any confirmation from 

within the agency itself, that the “recent” communication had occurred within the twoweek blackout period and not before. 

However, the court finds that the agency’s error here did not have an impact on the 

outcome of the procurement and thus did not prejudice the plaintiff. 4

 The court has 

found that the agency acted within its discretion when it identified a deficiency based 

upon Sallyport’s failure to propose a deployed Project Manager meeting all of the 

solicitation’s requirements. This deficiency by itself was sufficient grounds for the 

agency to eliminate Sallyport from the competition. See AR 89 (stating that if the 

proposal “does not meet the requirements and contains one or more deficiencies,” the 

“[p]roposal is unawardable” and will be deemed “unacceptable”) (emphasis added).5

 

 4 Sallyport argues that had it improperly been in contact with the agency, presumably to attempt 

to obtain information not available to other competitors, the contracting officer would have been 

required to report the matter. See generally FAR § 3.104-7(a) and (b). In this case, no such 

report was made. However, because the court finds there was no effect on the outcome of the 

case, the court need not decide if this section applies.

5 The technical evaluation refers to the alleged improper contact as a “weakness.” AR 459. 

However, the POM/PNM memorandum describes the contact as a “weakness” in the body of the 

document while specifically discussing the issue, id. at 495, but refers to the contact as a 

“deficiency” in the conclusion, see id. at 500-01 (“Sallyport’s Technical proposal was rated 

unacceptable for two deficiencies.”). The government conceded that the POM/PNM’s statement 

that there were two deficiencies was an error and that the record supports one deficiency and one 

weakness. Def.’s MJAR at 12 n.3. However, because one deficiency was sufficient to eliminate 
23

Because Sallyport has not demonstrated that it had a “substantial chance” that it would 

have been awarded the contract but for the agency’s error, Sallyport has not demonstrated 

prejudice from that error and therefore has not met its burden of showing that the award 

should be set aside.

C. The Agency Reasonably Evaluated exp Federal’s Proposal 

In addition to arguing that the agency was arbitrary and capricious in giving 

Sallyport’s proposal a deficiency, Sallyport argues that the agency erred in its evaluation 

of exp Federal’s proposal, which, according to Sallyport, should have been found 

deficient. As discussed above, the court has found that the agency’s determination that 

Sallyport’s proposal contained a deficiency was supported by the record in this case. The

government argues that the court’s inquiry should end there because Sallyport was 

correctly found to have submitted an unacceptable proposal and thus lacks standing 

because it would not have received the award even if the agency incorrectly evaluated 

exp Federal. The court disagrees. If the court finds the agency should have found that all 

three bidders submitted unacceptable proposals,6 then the court would have to remand to 

the agency to either repeat the bidding process or for further negotiations. See Impresa 

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1334 (Fed. Cir. 

 

a competitor, this court finds that the error in the POM/PNM was harmless. Sallyport argues that 

referring to the alleged contact as a “deficiency” demonstrates that the agency was unfairly harsh 

in evaluating Sallyport’s proposal. The court finds that this was simply an error in the 

conclusion of the POM/PNM, which refers to the contact as a “weakness” elsewhere in the 

document, and not evidence of the agency’s bias.

6 No party disputes that the third bidder, [xxx] was correctly assigned a lower-than-acceptable 

rating on its technical proposal, see AR 500.
24

2001). The Federal Circuit has found that a protestor has demonstrated prejudice in such 

circumstances. See Tinton Falls Lodging Realty, LLC v. United States, 800 F.3d 1353, 

1360 (Fed. Cir. 2015). The court will therefore turn to Sallyport’s arguments regarding 

exp Federal’s proposal. 

Sallyport argues that exp Federal’s proposed Project Manager, Khalil Al-Amin, 

does not meet the solicitation’s requirement that a Project Manager have a project 

management certification. The PWS states that the Project Manager “shall have a Project 

Management certification from an accredited institution.” AR 124. Mr. Al-Amin’s 

résumé in exp Federal’s proposal states that Mr. Al-Amin has a “Master Certificate, 

2014, Mastering Project Management” and that he has “additional education in . . . 

Project Management (Master Certificate).” AR 249. Sallyport states that “[i]nformation 

that Mr. Al-Amin has published publically about himself states that his certificate was 

issued by Villanova University.” Pl.’s MJAR 30. According to Sallyport, “[a] Project 

Manager ‘Master Certificate’ is not remotely the same as a “Project Management 

certification from an accredited institution.” Id. Sallyport asserts that “a Project 

Management certificate program” at a university “merely prepares an individual to 

complete the Project Management certification process.” Id. at 31. Sallyport asserts that 

universities, including Villanova, provide training to prepare individuals for certification 

exams, almost exclusively the Program Management Institute’s (‘PMI’) Project 

Management Professional (‘PMP’) certification exam,” though Sallyport does identify 
25

two other small international organizations that it also could also provide the type of 

“certification” required by the solicitation. Id. 

The government and defendant-intervenor argue, and the court agrees, that 

Sallyport’s arguments regarding the distinction between a certificate and a certification in 

project management relies on evidence outside of the administrative record. The 

solicitation does not require a specific type of certification, stating only that the 

certification must come from “an accredited institution.” AR 124. In contrast, on the 

same page as the certification requirement for the Project Manager, the solicitation states 

that bidders must include at least two Master Electricians in their proposals who are 

either licensed as Master Electricians by a state or have a “Level 4 NVQ Diploma in 

Installing Electro Technical Systems and Equipment from an accredited organization 

registered with the Office of Qualifications and Examinations regulation in the United 

Kingdom.” Id. at 124-25. In addition, the solicitation requires that the proposed Property 

Control Manager be a “Certified Professional Property Administrator (CPPA)” and states 

that a “Certified Professional Property Manager (CPPM) is preferred.” Id. at 124. These 

provisions demonstrate that had the agency intended the proposed Project Manager to 

hold a specific type of certification from one of a very small number of certifying 

organizations, it would have said so.

Moreover, the agency’s interpretation of “certification” to include the certificate 

held by Mr. Al-Amin is supported by the language of the solicitation, which appears to 

use the terms “certificate” and “certification” interchangeably. The PWS states that 
26

“[p]rior to mobilizing any personnel, all required certificates/licenses shall be filed with 

the KO and reviewed by the COR. These certificates/licenses shall provide sufficient 

confirmation that the minimum standards are met for each individual proposed to be sent 

forward or assigned to the project for support from Continental United Sates (CONUS).” 

Id. at 122 (emphasis added). The words “certificates/licenses” in that section plainly 

include the required “certification” for the Project Manager described in the same 

document. The court agrees with the defendants that the agency reasonably interpreted 

the term “certification” to include the “Master Certificate” in project management listed 

in Mr. Al-Amin’s résumé. Accordingly, the court finds that Sallyport has not met its 

burden to show that it was unreasonable, arbitrary, or capricious for the agency to 

determine that the “Master Certificate, 2014, Mastering Project Management” listed in 

Mr. Al-Amin’s résumé, id. at 249, satisfied the solicitation’s requirement that a proposed 

Project Manager have a “Project Management certification from an accredited 

institution.” Id. at 124.

IV. CONCLUSION

For the reasons stated above, the Sallyport’s motion for judgment on the 

administrative record is DENIED. Further, Sallyport’s request for injunctive relief is 

DENIED. The government and exp Federal’s motions for judgment on the 

administrative record are GRANTED. The clerk is instructed to enter judgment 

accordingly. No costs.

IT IS SO ORDERED.
27

s/Nancy B. Firestone 

NANCY B. FIRESTONE

Senior Judge