# In th e United States Court of Federal Cl aims

No. 15-1171C (F iled Under Seal: December 16, 2015) (Reissued for Publication: December 18, 2015) *

************************************* F F LPRO L L C, * Postaward B id Protest; Cross-Motions for
* J udg ment on the Administrative Record; Plaintiff, * Past Performance; Solicitation

* I nterpretation; Evaluation of Proposals;
v. * I nadequate Ex planation of Ex ercise of
* Discretion; Assig nment of Streng ths and THE UNI TED STATES, * W eaknesses; B est Value Tradeoff;
* I njunctive Relief Defendant. *
*************************************
Michael A. Gordon, W ashing ton, DC, for plaintiff.
Tany a B . Koenig , United States Department of Justice, W a shing ton, DC, for defendant.

OP INION AND ORDER

SWEENEY , J udg e

I n this postaward bid protest, plaintiff F F LPro, L L C contends that the United States Department of State’s Office of Antiterrorism Assistance (“ATA”) improperly deviated from the solicitation when it awarded a cy ber security

training contract to VariQ Corporation (“VariQ”). The parties have each moved for judg ment on the administrative record. F or the reasons set forth below, the court g rants in part and denies in part both motions, and awards plaintiff the injunctive relief it deems appropriate.

* The court provided the parties with an opportunity to sug g est redactions to this ruling , but in an December 18, 2015 joint status report, they indicated that no redactions were necessary

.I. BACK G ROUND

A. The Solicitation

On J anuary

17, 2014, the ATA issued solicitation number SAQMMA14R0093 for the acquisition of overseas cy ber security

training services and supplies. 1 AR 26, 28, 59. As
ex p lained in the solicitation’s statement of work, the contemplated purpose of the contract was to “provide for planning , procuringand preparing equipment and supplies, delivery of training courses to include instructors and the shipment of enabling resources to and from countries as specified in a task order.” I d. at 59. The statement of work also included descriptions of the following eig hteen courses and conferences that constituted the ATA’s cy ber security

training prog r am: Ex ecutive Seminar on Dig ital I nvestig ations and Security ; I d entification and Seiz ure of Dig ital Evidence; I dentification and Seiz ure of Dig ital Evidence–Train-the-Trainer; Identification and Seiz ure of Dig ital Evidence–Train-the-Trainer Mentoring ; I n troduction to Dig ital F orensics and I nvestig ations; F undamentals of Network Security ; Cy ber Awareness for Prosecutors Course; Principles of I nternet Investig ation Course; Mobile Device F orensic Consultation; Dig ital F orensics Equipment Grant and Consultation; Mac F o rensics Consultation; Advanced Dig ital F orensics Consultation; Cy ber Unit Manag ement Consultation; Dig ital F orensics L ab Mentoring Consultation; Domestic Cy ber Manag ement Consultation; Specializ ed Hardware/Software Consultations; Audio Video F orensics Consultation; and Specializ ed Conferences. I d. at 59-63. And, the statement of work set forth the responsibilities for certain key personnel that would be required to perform the contract, including a prog ram manag er. I d. at 63-64. The program manag er was to “provide oversig ht of the entire program encompassed by the contract and accountability for the manag ement and ex ecution of all tasks and subcontracts awarded under [ the] contract.” I d. at 63. Althoug h the ATA described the responsibilities for other key personnel in the orig inal statement of work, it subsequently amended the solicitation to require offerors to identify only a prog ram manag e r in their proposals. 2 I d. at 303, 329-30. Offerors were instructed to submit their proposals in two volumes: a technical volume and a price volume. I d. at 53. The proposals would be evaluated according to five factors; in descending

order of importance, these factors were: (1) Technical Compliance W ith all of the Terms and Conditions of the Solicitation (“Technical Compliance”); (2) Corporate Ex perience;

1 The facts in the backg

round section are derived solely from the administrative record (“AR”).

2 There were two other required positions described in the orig inal statement of work–a cy ber log istician and an operations manag er. See AR 64. The ATA indicated in Amendment 001 to the solicitation that the contract awardee would not be responsible for providing a cy ber log istician. See id. at 193, 291; accord id. at 166. And, the ATA removed the operations manag er position in Amendment 002 to the solicitation. See id. at 329-30, 425; accord id. at 303.

-2-(3) Past Performance; (4) Status of Property Manag ement; and (5) Price. 3 I d. at 53-56, 496. Of particular relevance in this bid protest are the first three factors, which were described as follows: 4
[ 1] Technical Compliance . . . . (i) Demonstrate adherence to all the requirements and terms by responding in accordance with the instructions with all the requested information and demonstrating technical understanding of all requirements in the Statement of W o rk . . . .

. . . . [ 2] Corporate Ex perience [ Prime and Subcontractor(s)] (i) Submit a . . . narrative describing the company ’s corporate ex perience. Your company shall provide the ty

pe of supplies and/or professional services procured by either a Government or Commercial entity for a minimum of two y ears. At a minimum, the narrative shall include the following : (A) Org aniz ation’s number of y ears of corporate ex perience relevant to this offer. (B ) Org aniz ation’s structure, to include siz e, ex perience in the field, and resources available to enable the offeror to fulfill requirements. (C) B rief history

of the org aniz ation’s activities contributing to the development of relevant expertise and capabilities. (D) I nformation that demonstrates org aniz ational and accounting controls and manpower presently in-house or the ability to acquire the ty

pe and kinds of manpower proposed.

3 I n the orig inal solicitation, the ATA indicated that a six th factor, F inancial Responsibility , would also be evaluated. See AR 56. However, in Amendment 004 to the solicitation, the ATA advised that F inancial Responsibility would only

be used by

the contracting officer for the purpose of making a responsibility

determination; the factor would not be evaluated as part of the offerors’ nonprice proposals. See id. at 465, 496.

4 The ATA modified these descriptions in the amendments to the solicitation. Compare AR 53-56 (containingthe orig inal solicitation), with id. at 183-84 (containing Amendment 001), and id. at 454-55 (containing Amendment 003). The descriptions quoted by the court are found in Amendment 003 to the solicitation.

-3-. . . .

(F ) Demonstrate Progr am Manag er and Operations Manag er ex perience in manag ing an international training prog ram. . . . (G) Demonstrate accessibility to qualified facilitators. F a cilitators must be elig ible to travel on short notice to countries in distant locations. [ Acknowledg ment] of ex tended availability for international travel is required. The proposed facilitators are required to possess all required travel documents (U.S. passports) upon contract award.
[ 3] Past Performance Offerors are advised to use references from projects involving relevant I T supplies and I T training services within the scope of this solicitation and in compliance with [ F ederal Acquisition Reg ulation (“F AR”)] 52.212-1. (i) Provide a description of the offeror’s ex perience in the professional information technolog y services and cy

ber trainingservices industries referenced in the [ request for proposals] . Describe three completed or on-g oing project(s), similar in siz e and complex ity

to the effort contemplated herein and in sufficient detail for the Government to perform an evaluation. Two of the three projects described must be prior federal g overnment with overseas deploy ment trainingex perience on cy ber training . I n direct relationships with Government ag e ncies are acceptable (i.e., y our firm trains instructors who teach classes under F ederal contracts with other firms), but substantial evidence must be provided. Each ex ample shall have been within the last two y e ars, whether completed or ong oing . All ex amples of completed services shall have been found to be acceptable by the ordering activity . I f the Offeror cannot provide three ex amples of past ex perience, [ it] may provide additional documentation to substantiate project ex perience to be evaluated by

the Contracting Officer. Offerors shall demonstrate that the tasks performed are of a similar complex ity to the work solicited under this solicitation. Demonstrate the ability

to manag e a multi-million dollar series of training in a g lobal theatre. Many

simultaneous iterations requiringex panded staffing resources to support deliveries. Demonstrated ex perience should include direct support of an international law enforcement training prog ram. An emphasis should be on law enforcement and not [ United States Department of Defense] eng ag ements. I llustrate ex perience in the acquisition, config uration and international shipping of various computer related components. Demonstrate
ex isting OEM (Orig inal Equipment Manufacturer) partnerships and the ability to forg e necessary

manufacturer relationships to ensure compliance with required licensing and End User L icense Agreements.

-4-F or each Past Performance Contract Profile submitted with its proposal, the

offeror should send a Past Performance Questionnaire . . . to the respective customer reference (e.g . Contracting Officer, Contracting Officer’s Representative, or other person with direct knowledg e of the offeror’s performance), asking

them to complete and return the survey by email to [ the ATA]

. . . . Only Past Performance Questionnaires reflecting the prime contractor’s Past Performance will be considered for award. F o r the purposes of evaluation, the Government will not accept or consider Past Performance Questionnaires for subcontractors.

I d. at 454-55. Offerors were advised that the nonprice factors would be “evaluated using an adjectival rating

sy stem,” and that “[ o] nce the adjective is assig ned for each area of the requirements, an overall adjectival rating [ would] be applied” to each nonprice proposal. I d. at 53. The adjectival rating s for the nonprice factors other than Past Performance were described as follows:
Rating D escription Superior Proposal ex ceeds most solicitation requirements, demonstrates

ex ceptional understanding of the requirements and has features that offer some advantag e to the Government. Offer has a hig h probability

of success with the lowest potential for unsuccessful performance.
Good Proposal meets solicitation requirements and demonstrates an

adequate understanding

of the requirements with more streng ths than weaknesses. Clarifications can usually resolve any issues and there is [ a] reasonable probability of success with averag e potential for unsuccessful performance[ .] Marg inal Proposal does not meet all solicitation requirements and does

not demonstrate understanding of the requirements with one or more weaknesses which may require correction. The offer has ambig uities with a hig h probability for unsuccessful performance and hig

h potential for failure. Unacceptable Proposal does not meet the requirements and contains one

more [ sic] sig nificant deficiencies with many weaknesses and ambig uities. No potential for successful[ ] performance and proposal is non-compliant with the solicitation requirements.

-5-I d. at 56-57. And, the adjectival rating s for the Past Performance factor were described as

follows:
Rating D escription
Ex ceptional B ased on the offeror’s recent/relevant performance record, the

Government has a hig

h ex pectation that the offeror will successfully

perform or ex ceed the requirements. I t is unlikely that Government intervention will be needed in order to obtain the required services. Satisfactory B ased on the offeror’s recent/relevant performance record, the

Government finds the past performance to meet the requirements. The Government has [ a] reasonable ex p ectation that the offeror will successfully meet the required effort. Some Government intervention may be needed in order to obtain the required services.
Neutral The offeror has stated that they have no past performance or

relevant record of similar performance and requests this rating

. Government check of resources produces no evidence of [ similar] performance and no other rating can be reasonably assig ned.
I nadequate B ased on the offeror’s recent/relevant performance record,

sig nificant doubt ex ists that the offeror can meet the requirement. I

nappropriate past performance is offered that is not similar in siz e and scope to the requirements. Government check of resources produces evidence of poor performance on other similar efforts or potential unsuccessful performance can be reasonably

concluded from past performance [ information] offered.

I d. at 57. The nonprice factors, when combined, were more important than price. I d. at 56. The ATA intended to award the contract “to the responsible offeror whose offer conforming to the solicitation [ was] most advantag eous to the Government, price and other factors considered.” I d.

The ATA amended the solicitation on six o c casions. I d. at 155-501, 540-42. As noted above, the amendments included chang es to the descriptions of the evaluation factors, chang es to what would be evaluated, and chang es to the required number of key personnel. Additional information relevant to plaintiff’s alleg ations in this bid protest was contained in Amendments 001 and 002.

-6-I n Amendment 001 to the solicitation, the ATA provided answers to questions posed by

prospective offerors. I d. at 277-90. Some of these questions and answers related to the Past Performance factor:

20. I s it a requirement for the prime to provide relevant past performances, or will the g o vernment accept past performances from its team members?

B o th, if y our firm intends to subcontract we would ex pect to hold them to the same requirements as the prime vendor.

21. I s it a requirement for the prime to provide demonstrated ex perience in manag ing an international training prog ram or will the g overnment accept demonstrated ex perience from its team members as well?

B o th, if y our firm intends to subcontract we would ex pect to hold them to the same requirements as the prime vendor.

. . . .
7. I s the requirement for 2 y ears of experience of cy

ber trainingoverseas a requirement for the prime, or for the team (including subcontractors)?

B o th. I f y our firm intends to subcontract, we would ex pect to hold the subcontractor to the same requirements as the prime vendor.

8. W e have concerns that the wording for the past performance requirement dictating that 2 of the 3 past performances must be with the F ederal g overnment [ is] ex cluding past performances of equal or g reater relevance to the subject of the [ request for proposals] . . . . Can this requirement limiting 2 of the 3 past performances be modified to encompass commercial training activities that are offered and provided to individuals and elements of the F e deral Government, but are not a stand-alone contract with the F e deral Government? Two of the three projects must be prior F ederal Government (indirect or direct–must carry

weig ht) or commercial projects of similar subjects offered to federal g overnment personnel. Yes, y our submission will be acceptable.

I d. at 279, 287-88. Other questions and answers related to the scope of the work to be provided; in response to inquiries reg ardingwhether the ex isting courses required modification or development, the ATA indicated that it did not ex pect that any modifications or development would be necessary , particularly in the short term, but that it would entertain sug g estions for course improvement during contract performance. I

d. at 278, 281, 283.

-7-Amendment 001 also addressed the provision of course instructors. Specifically , the ATA added a contract clause providing that the contract awardee was required to offer workers who are displaced by

the contract award the rig ht of first refusal of employ ment under the new contract, id. at 175 (incorporating F A R 52.222-17), likely

in response to some of the questions that it received, see, e.g ., id. at 284 (“[ Q:] How will independent contractors be captured on this effort? W e utiliz e a majority of them as ex pert, adjunct instructors. [ A:] I n cumbent contractors performing

under this contract [ who] are displaced will be offered rig ht of first refusal with the awardee, to be worked [ out] during transition after award, clause included in amendment 1 based on Ex ecutive Order.”). The ATA provided further information reg a rding course instructors in response to other questions: 2. Do all instructor resumes need to be vetted by the Department of State? Or is there a list of pre-qualified instructors they would like us to use? This will be worked out with the awardee after award. The Government may have incumbent instructors that need to be retained under the new award, otherwise if the awardee has instructors we would like to know about the offeror’s instructors or the offeror’s ability

to obtain instructors should incumbent instructors waive their rig ht of first refusal.

. . . . 13. I s there a pool of ex isting certified trainers? This pool was said to number about 600, with perhaps one quarter of those ex perienced in the ATA Cy ber Training Prog ram. The ex pectation that this resource pool was available precluded an advance effort to build another pool. W ill the g overnment provide, either in advance, or to the awarded prime, a pool of vetted cy ber professionals to deliver the curriculum on site?

W e do not know where the sug g estion of 600 qualified instructors orig inated from. W e can only

sug g e st that we have a fraction of that number. From a technical perspective, it is the responsibility of the vendor to provide documentation that they

are able to provide instructors qualified as stated within the [ statement of work] . Subsequently , it is the responsibility of the vendor to provide this staffing , not ATA. The Government will not provide in advance during the solicitation phase any such list of incumbents. However, if there are any incumbent contractor’s employ ees displaced by

this award, a list of incumbent contractor employ

ees will be provided to the awardee for compliance with Ex ecutive Order 13495 if they are qualified for those positions.

I d. at 286, 288-89.

-8-I n Amendment 002 to the solicitation, the ATA responded to another question reg arding

the Past Performance factor:
17. Reg arding Question 20 ([ from the first set of] Questions and Answers). The response appears to ex

p ect both Prime and Subcontractors to provide 3 past performance responses each. I f that is true [ then] it appears the Government required that both the prime contractor and the subcontractor meet the Past Performance requirement [ “] two of the three projects described must be prior federal g overnment with overseas deploy ment training ex perience on cy ber training .[ ” ] F or many

small business[ es] and hubz ones this is difficult to meet to have 2 past performances each having federal Government with overseas deploy ment ex p erience on cy

ber training . There are believed to be only a handful of small businesses and hubz ones that can meet this requirement and team tog ether. W ill the Government clarify [ whether] this requirement is for three past performances for the prime, sub or both with a total of 3 required? Or does the Government require 3 from each team member (which would require 9 fully compliant past performances for the team)? The latter would only be met by

a few, severely limiting competition to so few [ that] the competition would appear to be unfair to competitors. The prime must provide 3 and the sub must provide 3. The Government will provide a “neutral” rating to firms with no past performance. W e would recommend try

ing to provide similar ex perience as well with overseas deploy ment training in g eneral to convey relevance–in such cases they could be of similar value to overseas cy

ber training

.
I d. at 417. And, with respect to the provision of course instructors, the ATA indicated: 6. Please confirm who is responsible for training personnel to be prepared to teach events. . . . W hat process is used now to train and vet personnel? . . . How does State ex p ect vetting . . . to occur if no training is included?

. . . The vendor is required to provide instructors [ who] meet the stated requirements. ATA will review the resumes of proposed instructors and will perform [ its] own vetting /confirmation of their capabilities. . . . ATA does n o t provide allowances for the contractors to recruit/train prospective instructors.

I d. at 414-15. Amendment 002 also contained the final deadline for proposals: F e bruary 26, 2014. I d. at 425.

-9-B. Evaluation of P roposals and Source Selection Decision Thirteen offerors, including plaintiff and VariQ, submitted proposals to the ATA by the deadline. 5 See g enerally

id. at 544-2742. As set forth in the source selection plan, see id. at 12, a Technical Evaluation Team assessed the proposals and, for each proposal, assig ned consensus adjectival rating s for both the individual nonprice factors and the nonprice proposal overall, see g enerally id. at 3286-364. W ith respect to the proposals submitted by plaintiff and VariQ, the Technical Evaluation Team assig n ed the following rating s:

Evaluation F actor Plaintiff VariQ Technical Compliance Superior Superior Corporate Ex perience Good Superior
Past Performance Satisfactory Ex ceptional Status of Property

Manag ement Good n/a 6
Overall Good Superior

I d. at 3286-97.

I n addition to assig ning adjectival consensus rating s for each nonprice proposal, the Technical Evaluation Team provided narrative summaries and identified streng ths and weaknesses. See g e n erally id. at 3286-364. F o r plaintiff’s proposal, the Technical Evaluation Team determined the following : 7

5 Specific aspects of the proposals are addressed, as necessary , in the court’s discussion of the parties’ cross-motions for judg ment on the administrative record.

6 The Technical Evaluation Team’s evaluation form did not indicate a consensus adjectival rating

for VariQ’s proposal on the Status of Property Manag e ment factor. See AR 3296. However, a subsequently prepared document indicates that the rating was “Good.” See id. at 3387.

7 All but the evaluation factor heading s are direct quotations from the Technical Evaluation Team’s evaluation forms.

- 10-F actor: Technical Compliance

Narrative Summary : Superior understanding

and conveyance of the requirements of the [ statement of work] . Demonstrated competency in all aspects of the technical requirements. Demonstrated core competency in the field of dig ital investig ative centric prog rams. Streng ths:

• Offeror clearly

understands the requirements of the project demand[ ] the manag ing and delivery

of courses and enabling

equipment.

• Offeror understand[ s] that [ it] will serve as representative[ ] under the direction of ATA (section 2, 2-4).

• Offeror specializ es in the specific dig ital investig ative centric prog rams and resources being

delivered by

ATA.

• Superior understanding of log istical demands associated with all aspects of a g lobal prog ram (section 2, 2-5).

• All “facilitators are screened and vetted with ATA.” (section 5, 5-2)

• [ I t is] cog niz ant of the importance of the targ et audience.

• Understands that project manag ement as well as subject matter ex p ertise [ are] integ ral part[ s] of the project.

F actor: Corporate Experience Narrative Summary : Proposal ex ceeds solicitation requirements, demonstrates a g ood understandingof the [ statement of work] . The information provided demonstrates org aniz ational accountingcontrols and in house manpower to accomplish the task. The prog ram manag e r and instructors are well qualified.
Streng ths:

• Demonstrated ex perience manag ing a multi-dollar [ sic] training prog ram (section 3, 3-10)

• The vendor’s pool of manag e rs possesses substantial ex perience manag ing international cy

ber prog rams.

• Demonstrated ability

to maintain and track the scope of the project (section 5, 5-4)

• Evidence of sustained access to the hardware/software referenced in the [ statement of work] Orig inal Equipment Manufacturer (OEM) partnerships.

- 11-F actor: Past Performance

Narrative Summary : The vendors [ sic] past performance meets all requirements outlined in the [ statement of work] and indicates a high probability of successfully completing the project. 8
The Past Performance [ Q uestionnaires] (PPQs) were reviewed by the TET. However, it was identified that the PPQ responses were provided by teaming partners of the offeror and may therefore not be objective.

F F LPro had no contracts or other information listed in the Past Performance I nformation Retrieval Sy stem (PPI RS).
Streng ths:

• The vendor presented various ex amples of successfully addressing on the g round issues associated with delivering the ATA overseas (section 3, 3-9).

• The vendor has a demonstrated [ successful] past performance as a subcontractor manag ing the ATA Cy ber Prog r am.
Overall Proposal meets solicitation requirements and demonstrates an adequate understanding of the requirements with more streng ths than weaknesses. Clarifications can usually resolve any

issues and there is reasonable probability of success with averag e potential for unsuccessful performance[ .]

I d. at 3286, 3288-89, 3291 (footnote added). The Technical Evaluation Team determined the following for VariQ’s proposal:

8 Due to the lack of an apostrophe in the word “vendors” to indicate whether a sing ular or plural possessive form of the noun was intended, it is unclear whether the Technical Evaluation Team was referring

only to plaintiff, or to plaintiff and its subcontractors.

- 12-F actor: Technical Compliance

Narrative Summary : The proposal ex ceeds most of the solicitation requirements and demonstrates an
ex tremely g ood understandingof the requirements with more streng ths than weaknesses. There is a hig h probability

that this vendor will be able to perform the tasks needed without any intervention.
Streng ths:

• Clear understanding

of roles and scope of project

• Ex cellent backgr ound knowledg e of ATA and solicitation requirements

• Has a hig hprobability of success

F actor: Corporate Experience Narrative Summary : The corporate ex

p erience presented in the proposal ex ceeds most of the solicitation requirements. I t demonstrates an ex tremely g ood understandingof the requirements and experience needed to perform the tasks with more streng ths than weaknesses. There is a clear understanding of the manag ement structure and key personnel required for the project.
Streng ths:

• The vendor’s core competency is cy ber investig a tions and I T infrastructure

• The vendor is well versed in training in an international setting

• Robust description and identification of key personnel with clear manag ement structure.

F actor: Past Performance Narrative Summary :

B a sed on the vendors [ sic] stated past ex perience and the PPI Rs [ reports] presented[ ,] there is a hig h ex pectation that the vendor will be able to perform or

- 13-ex c eed the requirements of the statement of work successfully

. 9 I t is unlikely that Government intervention will be needed in order to obtain the required services.
Streng ths:

• The majority

of the vendors [ sic] stated ex perience is centric to cy ber training 1 0

• Ex cellent reviews from multiple g overnment and public entities (see PPI Rs attachments)

Overall The VariQ proposal ex ceeds most of the basic requirements stated in the [ statement of work] . The vendor has shown superior understanding of the scope of the project and availability of the skills and manpower needed to perform the tasks outlined. There is sufficient indication that very minimal intervention will be needed from the Government and there will be a g ood return on investment.

I d. at 3292, 3294-95, 3297 (footnotes added). The Technical Evaluation Team did not identify any weaknesses with either proposal. I d. at 3286-97.

The Technical Evaluation Team finaliz ed its evaluations in September 2014. I d. at 3285. Subsequently , in April 2015, the ATA issued a document titled “Price Neg otiation Memorandum (PNM) and Award Recommendation.” I d. at 3365-400. I t appears that the entire document–ex cept for the final pag e–was prepared by an ATA contract specialist and an ATA contractor manag ement analy st. See id. at 3367 (noting that the “Price Neg otiation Memorandum/Award Summary ” was prepared by

those two individuals for the contracting officer). Prior to that final pag e, the document included: (1) backg round information reg arding the procurement, id. at 3367-71; (2) summaries of the price proposals, id. at 3371-76; (3) the contracting

officer’s price analy

sis, id. at 3376-80; (4) descriptions of the source selection plan, the solicitation and amendments, and the source selection process, id. at 3381-86; (5) the Technical Evaluation Team’s consensus adjectival rating s, narrative summaries, and assig ned streng ths and weaknesses for each proposal, id. at 3387-99; and (6) an award recommendation, id. at 3399. The final pag e, which was identified in the table of contents as the “approval,” id. at 3367, contained a sentence reflecting the contracting

officer’s award decision and the contracting

9 Due to the lack of an apostrophe in the word “vendors” to indicate whether a sing ular or plural possessive form of the noun was intended, it is unclear whether the Technical Evaluation Team was referring

only to VariQ, or to VariQ and its subcontractors.

1 0 See supra note 9.

- 14-officer’s signature, id. at 3400. Of importance are the final two sections of the document, which

the court reproduces here in full:

Award Recommendation VariQ Corporation (VariQ) was the only firm out of thirteen (13) proposals to receive an overall “Superior” rating on [ its] Technical Evaluation. There were several firms with “Good” overall Technical Evaluation rating s. The solicitation evaluation procedures . . . under F AR 52.212-2 Evaluation - Commercial I tems [ specify that] non-cost/price factors [ (] Technical Compliance, Corporate Ex perience, Past Performance and Status of Property Manag ement[ ) ,] when combined, are significantly more important than cost/price. Section “M” of the solicitation stated that all evaluation factors other than price, when combined, are sig

nificantly more important than price, and that the proposal offering the best value is the one that is most advantag eous to the Government, price and other factors considered. Section M states that “Technical and all other factors 2-4, when combined, are more important, when compared to price.”

F actor 1: Technical Compliance. The [ Technical Evaluation Team] g ave VariQ a “Superior” rating

for Technical Compliance. VariQ earned a technical rating of “Superior” because [ it] had a clear understanding of the [ statement of work] and had ex cellent background knowledg e of ATA and the requirement. VariQ had no weaknesses in the Technical Compliance section, thus[ ,] combined with the aforementioned backg

round knowledg e and g rasp of scope of work[ ,] VariQ received a “Superior” rating

.
F actor 2: Corporate Experience. VariQ earned a “Superior” rating under Corporate Ex perience because [ it was] able to prove to the [ Technical Evaluation Team] that [ its] “core competency is cy ber investig ations and I T infrastructure. The vendor [ VariQ] is well versed in trainingin an international setting . Robust description and identification of key personnel with clear manag ement structure.” VariQ had no weaknesses, so the [ Technical Evaluation Team] rated them as ‘Superior’.

F actor 3: Past Performance. VariQ earned an “Ex ceptional” rating

for having several positive PPI RS (Past Performance I n formation Retrieval Sy stem) reports that were cy

ber security

relevant, and had no neg ative reports.

F actor 4: Status of Property Manag ement. VariQ earned a “Good” rating under Status of Property

Manag ement, and had no strengths or weaknesses identified.

- 15-VariQ[ ’s] submitted price proposal, base plus four option y ears, [ was] for a g rand total of $5,303,260.23. VariQ offered the third lowest price proposal in comparison with the Independent Government Cost Estimate (I GCE), with a g rand total of $8,886,714.35. VariQ’s price proposal was 60% of the I GCE.
[ Approval]

B a sed on the foreg oing , the Contracting Officer determines that award of contract number SAQMMA15D0006 be made to VariQ Corporation in the amount of $5,303,260.23 for the period April 20, 2015 throug h April 19, 2020 (base and four option y ears), said contract price being fair and reasonable and in the best interests of the U.S. Government.

I d. at 3399-400. All of the offerors were notified of the contract award to VariQ on April 7, 2015. See g enerally

id. at 3401-65.

C. P rior Bid P rotests Plaintiff received a written debriefing from the ATA on April 9, 2015. I d . at 3493-97. F ive day s later, it lodg ed a bid protest at the United States Government Accountability Office (“GAO”), arg

uing that its proposal should have been more hig hly rated and that the ATA improperly

deviated from the terms of the solicitation by g iving undue weig h t to the price factor. I d. at 3543-53. On May

4, 2015, the ATA advised the GAO that it had determined that it was in its best interest to take corrective action, and that “[ t] he scope of the corrective action [ would] include review and validation by the Contracting Officer of the [ Technical Evaluation Team] report with adjustment as necessary , a new cost-technical trade-off analy sis, and a new Source Selection Authority

(SSA) Decision.” I d. at 3554. The GAO according ly dismissed the bid protest as academic. I d. at 3838.
On May 29, 2015, the ATA issued a document titled “Corrective Action B est Value Tradeoff and . . . Award Recommendation” that was sig ned by both the contracting

officer and an ag ency attorney . I d. at 3555-65. The contracting officer reviewed the Technical Evaluation Team’s evaluations of plaintiff’s and VariQ’s nonprice proposals. I d. at 3559-62. She ex plained that she did not make any chang e s to the adjectival rating s assig ned by the Technical Evaluation Team to VariQ’s nonprice proposal; indeed, in her comments, she merely reported the Technical Evaluation Team’s conclusions and indicated her concurrence. I d. at 3561-62.

W ith respect to plaintiff’s proposal, the contracting officer first concurred with the Technical Evaluation Team’s assessment that plaintiff’s proposal deserved a superior rating for the first technical factor, Technical Compliance. I d. at 3559. Then, after incorrectly representing that the Technical Evaluation Team had assig ned a superior rating

to plaintiff’s proposal for the

- 16-Corporate Ex perience factor, she determined that a superior rating was appropriate. 1 1 I d. F inally , for the Past Performance factor, she reiterated the Technical Evaluation Team’s comments and
ex p lained: As a result of the corrective action review, the Contracting Officer determined that the past performance rating appears to be incorrect considering these responses were outstanding

and althoug h provided by teaming partners these reviews should have been fully

considered and assessed in accordance with the terms and conditions of the solicitation. Nowhere in the solicitation does it state that past performance assessments must be for the prime only . Therefore, the Contracting Officer is hereby

reassessing

F F L Pro L L C’s past performance as ex ceptional. B a sed on the offeror’s recent/relevant performance record, the Government has a hig h ex pectation that the offeror will successfully perform or ex ceed the requirements. It is unlikely that Government intervention will be needed in order to obtain the required services.

I d. at 3560. B ased on these revised adjectival rating s, the contracting officer upg

raded the overall adjectival rating

for plaintiff’s nonprice proposal to superior. Consequently, the proposals submitted by

plaintiff and VariQ were assig ned identical adjectival rating s. I d. at 3561. The contracting

officer then set forth her best value tradeoff analy sis:

B o th VariQ Corporation and F F L Pro L L C received overall technical rating s of Superior. I n accordance with the solicitation, technical is more important than price, and both VariQ and F F LPro are the only firms with overall ‘Superior’ technical rating s.

Iconsidered not just the assig ned rating s but the relative streng ths and merits of each proposal by

F a ctor . . . and have determined that althoug h not identical, the 2 firms are essentially

equal. In reviewing

the streng ths relative to each F actor, I did not find any

streng ths that would disting uish one proposal as superior to the other . . . . W hile each proposal is considered superior and offers beneficial streng ths, they are essentially

equal.

1 1 The contracting

officer subsequently

sug g ested to the GAO, in her statement of facts, that she had recog

niz ed the error and chang ed the rating upon a review of the Technical Evaluation Team’s evaluation. See AR 3735 (“The [ Technical Evaluation Team] also appeared to have erroneously

applied a ‘Good’ rating rather than a ‘Superior’ [ rating ] to F F LPro for its Corporate Ex perience. B ased on the streng ths identified by the [ Technical Evaluation Team] and the summary

finding s, Idetermined the ‘Superior’ rating was most appropriate.” (citation omitted)).

- 17-VariQ Corporation received a technical rating of Superior and submitted a price

proposal . . . for a grand total of $5,303,260.23. F F LPro received a technical rating of Superior and submitted a price proposal . . . for a g rand total of $7,312,591.18. Notwithstanding [ its] technical rating of Superior, F F L Pro, L L C’s price offer is $2,009,330.95 hig h er than that of VariQ’s offered price. I did not find that the streng ths offered by F F LPro were worth the pay ment of a price premium over those offered by VariQ.

I d. at 3562. The contracting officer therefore concluded that VariQ should retain the contract that it was orig inally awarded. I d. at 3564. The ATA advised plaintiff and VariQ of its new decision on J une 2, 2015. I d. at 3566- 68. Plaintiff received a written debriefing on J une 10, 2015, id. at 3575-83, and five day s later, lodg ed a second bid protest at the GAO, id. at 3583.001-.012. I n this second bid protest, plaintiff challeng ed, amongother thing s, the adjectival rating s assig ned to VariQ’s proposal for the Corporate Ex perience and Past Performance factors, the ATA’s purported overweig hting of the Price factor, and the ATA’s determination that VariQ’s nonprice proposal was “essentially equal” to plaintiff’s nonprice proposal. I d. at 3583.001-.002. The GAO denied plaintiff’s protest on September 22, 2015. I d. at 3835-48.

D. Current Bid P rotest

L ess than three weeks later, on October 9, 2015, plaintiff filed the instant bid protest. I n its complaint, it sets forth six claims for relief. Compl. ¶¶ 37-70. F irst, plaintiff contends that the ATA improperly

deviated from the past performance criteria set forth in the solicitation when evaluatingVariQ’s proposal. I d. ¶¶ 37-45. Second, plaintiff contends that the ATA’s evaluation of VariQ’s proposal on the Corporate Ex perience factor was unreasonable. I d. ¶¶ 46-52. Third, plaintiff contends that the ATA misevaluated VariQ’s proposal on the Technical Compliance factor. I d . ¶¶ 53-56. F ourth, plaintiff contends that the ATA’s best value determination was flawed. I d. ¶¶ 57-61. And, in its final two claims for relief, plaintiff contends that it is entitled to equitable relief–both a declaratory judg ment and a permanent injunction. I d. ¶¶ 66-70; accord id. at 25 (containing plaintiff’s request for relief).

B o th parties have moved for judg ment on the administrative record pursuant to Rule 52.1(c) of the Rules of the United States Court of F ederal Claims (“RCF C”). The motions are fully briefed, and the court heard arg ument on December 14, 2015.

II. DISCUSSION

I n ruling on motions for judg ment on the administrative record pursuant to RCF C 52.1(c), “the court asks whether, g iven all the disputed and undisputed facts, a party has met its burden of proof based on the evidence in the record.” A & D F ire Prot., I nc. v. United States, 72 F ed. Cl. 126, 131 (2006) (citingB annum, I nc. v. United States, 404 F

. 3d 1346, 1356 (F ed. Cir. 2005)).

- 18-B e cause the court makes “factual finding s . . . from the record evidence,” judg ment on the administrative record “is properly understood as intending to provide for an expedited trial on the administrative record.” B annum, 404 F .3d at 1356.

A. Standard of

Review

W h en entertaining

a motion for judg ment on the administrative record in a bid protest, the United States Court of F ederal Claims (“Court of F ederal Claims”) reviews the challeng ed ag ency action pursuant to the standards set forth in 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4) (2012). Althoug h section 706 contains several standards, “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 ag ency action if it is ‘arbitrary , capricious, an abuse of discretion, or otherwise not in accordance with law.’” B a

nknote Corp. of Am. v. United States, 365 F .3d 1345, 1350 (F ed. 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 reg ulation or procedure.’” Centech Grp., I nc. v. United States, 554 F .3d 1029, 1037 (F ed. Cir. 2009) (quoting I mpresa Construz ioni Geom. Domenico Garufi v. United States, 238 F .3d 1324, 1332 (F ed. Cir. 2001)). “Contractingofficers are ‘entitled to ex ercise discretion upon a broad rang e of issues confrontingthem’ in the procurement process.” I mpresa, 238 F .3d at 1332-33 (quoting L atecoere I

nt’l, I nc. v. U.S. Dep’t of the Navy , 19 F .3d 1342, 1356 (11th Cir. 1994)). Thus, the court’s review of a procuring ag ency ’s decision is “hig hly deferential.” Advanced Data Concepts, I nc. v. United States, 216 F .3d 1054, 1058 (F ed. Cir. 2000); see also Citiz ens to Preserve Overton Park, I

nc. v. Volpe, 401 U.S. 402, 416 (1971) (“The court is not empowered to substitute its judg ment for that of the ag ency .”). F urthermore, when eng a g ing in a neg otiated procurement, a “protestor’s burden of proving that the award was arbitrary , capricious, an abuse of discretion, or otherwise not in accordance with law is g reater than in other ty

pes of bid protests.” Galen Med. Assocs., I n c

. v. United States, 369 F .3d 1324, 1330 (F ed. Cir. 2004). And, when a contract is to be awarded on a “best value” basis, contracting officers have “even g reater discretion than if the contract were to have been awarded on the basis of cost alone.” I d

. (citing E.W . B liss Co. v. United States, 77 F .3d 445, 449 (F ed. Cir. 1996) (“Procurement officials have substantial discretion to determine which proposal represents the best value for the g overnment.”)). Given the hig hly

deferential standard of review, when a protester challeng es the procuring ag ency ’s decision as lacking a rational basis, “the test for reviewing courts is to determine whether the contracting

ag ency provided a coherent and reasonable ex planation of its ex ercise of discretion, and the disappointed bidder bears a heavy burden of showing

that the award decision had no rational basis.” I

mpresa, 238 F .3d at 1332-33 (citation and internal quotation marks omitted); accord Advanced Data Concepts, 216 F .3d at 1058 (“The arbitrary and capricious standard . . . requires a reviewing court to sustain an ag ency action evincingrational reasoning and consideration of relevant factors.”). W hen a protester claims that the procuring ag ency ’s

- 19-decision violates a statute, reg ulation, or procedure, it must show that the violation was “clear and prejudicial.” I

mpresa, 238 F .3d at 1333 (internal quotation marks omitted).

I n addition to showing “a sig nificant error in the procurement process,” a protester must show “that the error prejudiced it.” Data Gen. Corp. v. J ohnson, 78 F .3d 1556, 1562 (F ed. Cir. 1996); see also B a

n num, 404 F .3d at 1351 (holding that if the procuring ag ency ’s decision lacked a rational basis or was made in violation of the applicable statutes, reg ulations, 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 alleg ed error.” B anknote, 365 F .3d at 1350 (quoting Emery

W orldwide Airlines, Inc. v. United States, 264 F .3d 1071, 1086 (F ed. Cir. 2001)); see also Data Gen., 78 F .3d at 1562 (“[ T] o establish prejudice, a protester must show that, had it not been for the alleg ed error in the procurement process, there was a reasonable likelihood that the protester would have been awarded the contract.”); Statistica, I nc. v. Christopher, 102 F .3d 1577, 1581 (F ed. Cir. 1996) (“To establish competitive prejudice, a protester must demonstrate that but for the alleg ed error, there was a ‘substantial chance that [ it] would receive an award–that it was within the z one of active consideration.’” (quoting CACI , I nc.-F ed. v. United States, 719 F .2d 1567, 1574-75 (F ed. Cir. 1983))).

B. The ATA’s Evaluation of VariQ’s P ast P erf

orm ance Plaintiff first argues that the ATA did not properly evaluate VariQ’s proposal under the Past Performance factor. Specifically , plaintiff contends that the ATA deviated from the past performance criteria set forth in the solicitation in several way s: (1) the ATA did not determine whether VariQ and its subcontractors met the “minimum” past performance requirements; (2) the ATA improperly evaluated the past performance of VariQ and its subcontractors under the “ex ception” to the “minimum” past performance requirements; and (3) even if the “ex c eption” to the “minimum” past performance requirements were applicable, the ATA improperly evaluated the past performance of VariQ and its subcontractors. Pl.’s Mot. 29-31. To determine whether the ATA deviated from the requirements of the solicitation in evaluating the past performance of VariQ and its subcontractors, 1 2 the court must ex amine both the relevant lang uag e of the Past Performance factor description and the ATA’s analy sis of VariQ’s proposal under the Past Performance factor.

1. Standard f or Interpreting a Solicitation As an initial matter, the court must ascertain what the ATA was required to evaluate under the Past Performance factor pursuant to the terms of the solicitation. The court interprets a solicitation in the same manner as it would a contract. See B anknote, 365 F .3d at 1353 n.4

1 2 As clarified by

the questions and answers contained within Amendments 001 and 002 to the solicitation, each offeror and subcontractor was required to independently comply with the past performance requirements. See AR 279, 287-88, 417.

- 20-(citing Grumman Data Sy s. Corp. v. Dalton, 88 F .3d 990, 997-98 (F ed. Cir. 1996)). Thus, as

with the interpretation of a contract, the “[ i] nterpretation of the solicitation is a question of law . . . .” I d. The court beg ins by ex amining the solicitation’s plain lang uag e , and in doing so considers “the solicitation as a whole, interpreting it in a manner that harmoniz es and g ives reasonable meaning

to all of its provisions.” I d. “I f the provisions of the solicitation are clear and unambig uous, they

must be g iven their plain and ordinary meaning ; [ the court] may not resort to ex trinsic evidence to interpret them.” I d. However, when the lang

uag e of the solicitation “is susceptible to more than one reasonable interpretation,” the solicitation is ambig u ous. I d. I f the solicitation contains an ambig uity , then the court must determine whether that ambig uity is patent. Grumman Data Sy s., 88 F .3d at 997. “A patent ambig uity is present when the contract contains facially inconsistent provisions that would place a reasonable contractor on notice and prompt the contractor to rectify the inconsistency

by inquiring of the appropriate parties.” Stratos Mobile Networks USA, L L C v. United States, 213 F .3d 1375, 1381 (F ed. Cir. 2000). Patent ambig uities are “‘obvious, gross, [ or] g laring .’” Grumman Data Sy s., 88 F .3d at 997 (quoting H & M Moving , I nc. v. United States, 499 F .2d 660, 671 (Ct. Cl. 1974)). I f a solicitation contains a patent ambig uity , the protester’s interpretation of the solicitation will fail unless it previously soug ht clarification from the procuring

ag e ncy reg ardingthe ambig uous lang uag e . I d . at 997-98; accord Stratos Mobile Networks USA, 213 F .3d at 1381. I f the ambig uity is not patent and the protester demonstrates that it relied upon the ambig uity , then the court applies the g eneral rule that the ambig uity will be construed ag ainst the drafter of the solicitation–the procuring ag ency . See NVT Techs., I nc. v. United States, 370 F .3d 1153, 1162 (F ed. Cir. 2004).

2. The ATA Could Evaluate the P ast P erf orm ance of

VariQ and Its Subcontractors Using Either the Threshold or Residual Criteria Set F orth in the Solicitation Underly ing all of plaintiff’s contentions is plaintiff’s assertion that under the solicitation, the ATA was required to first determine whether an offeror and each of the offeror’s subcontractors met the threshold past performance requirements; namely , providing a description of three projects that demonstrated ex perience in the subject matter of the solicitation, with at least two of those projects being “prior federal g overnment with overseas deploy ment training
ex p erience on cy

ber training .” AR 455. Then, plaintiff contends, if, and only if, an offeror or subcontractor did not “provide three ex amples of past performance,” id., could the ATA evaluate additional information that demonstrated the experience of the offeror or subcontractor. Defendant disag

rees with plaintiff’s interpretation of the Past Performance factor description, contending that the ATA allowed itself some flex ibility in evaluating past performance when it drafted the solicitation. Specifically , defendant contends, the solicitation provided that if an offeror or a subcontractor could not identify three ex amples of past performance that related to the subject matter of the solicitation (with two of those ex amples being from projects for the federal g overnment for the provision of overseas cy ber training ), then the ATA could review additional information from the offeror or subcontractor that demonstrated its ex perience. The

- 21-court ag rees with defendant that the solicitation reflects a more flex ible approach to evaluating

the proposals under the Past Performance factor than what plaintiff sug g ests. The parties’ arg

uments center on the following portion of the Past Performance factor description: Provide a description of the offeror’s ex perience in the professional information technolog y

services and cy

ber trainingservices industries referenced in the [ request for proposals] . Describe three completed or on-g oing project(s) . . . . Two of the three projects described must be prior federal g overnment with overseas deploy

ment training ex p erience on cy ber training . . . . I f

the Offeror cannot provide three ex amples of past ex perience, [ it] may provide additional documentation to substantiate project ex perience to be evaluated by the Contracting Officer.

I d. Under the plain lang

uag e of this provision, if an offeror or subcontractor identified fewer than three ex amples of qualify ing past ex perience, it was entitled to submit additional information to ex pound upon its ex perience. Nothing in this lang uag e prevented the offerors or subcontractors from supply ing information pertaining to other projects to “substantiate [ the] project ex perience to be evaluated by the Contracting Officer.” I d. Moreover, because the plain lang uag e of the provision indicates that the ATA would accept a proposal containing fewer than three ex amples of past ex perience, 1 3 the requirement that two of the described projects be for the provision of overseas cy

ber trainingfor the federal g overnment must only have applied when three ex amples of qualify ing past ex perience were supplied. According ly , plaintiff’s interpretation of the solicitation–which precludes an offeror or subcontractor from providing information reg arding other projects to substantiate their experience if they have fewer than three
ex amples of qualifying past performance–is not reasonable. Offerors and subcontractors were permitted to submit three ex amples of past performance reg ardless of whether they were able to meet the requirement that two of the projects be for the provision of overseas cy ber trainingfor the federal g overnment. On the other hand, plaintiff’s interpretation of what offerors and subcontractors were required to demonstrate under the Past Performance factor if they did not provide three ex amples of qualify ing past performance is eminently reasonable. As plaintiff notes, the Past Performance factor description provides a laundry list of what must be demonstrated with the “additional documentation” supplied by offerors and subcontractors who were unable to provide three
ex amples of qualifying past performance, including :

1 3 I ndeed, elsewhere in the solicitation, when describing the adjectival rating s it would assig n for the Past Performance factor, the ATA indicated that the failure of an offeror or subcontractor to submit ex amples of past performance would result in the assig nment of a neutral rating , and the submission of “[ i] nappropriate past performance” would result in the assig nment of an inadequate rating . AR 57.

- 22-Offerors shall demonstrate that the tasks performed are of a similar complex ity to the work solicited under this solicitation. Demonstrate the ability to manag e a multi-million dollar series of training in a g lobal theatre. Many simultaneous iterations requiringex p anded staffing resources to support deliveries. Demonstrated ex perience should include direct support of an international law enforcement training prog ram. . . . I llustrate ex p erience in the acquisition, config uration and international shipping of various computer related components. Demonstrate ex isting OEM (Orig inal Equipment Manufacturer) partnerships and the ability to forg e necessary

manufacturer relationships to ensure compliance with required licensing

and End User L icense Agreements.

I d. Defendant does not dispute these requirements.

W ith this interpretation of th e Past Performance factor description in mind, the court turns to plaintiff’s contention that the ATA did not properly evaluate the past performance of VariQ and its subcontractors.

3. Standard f

or Review ing a P rocuring Agency’s Evaluation of P ast P erf

orm ance As noted above, because “[ p] rocurement officials have substantial discretion to determine which proposal represents the best value for the government,” E.W . B liss, 77 F .3d at 449, a protester bears a heavy

burden in provingthat an ag ency ’s decision to award a contract in a best value procurement lacked a rational basis, Galen Med. Assocs., 369 F .3d at 1330. According ly , a court g enerally

will not “second g u ess” the rating s assig ned by procurement officials responsible for evaluating

proposals. E.W . B liss, 77 F .3d at 449. I ndeed, “[ i] n protests challeng ing an ag ency ’s evaluations of an offeror’s technical proposal and past performance, review . . . should be limited to determining whether the evaluation was reasonable, consistent with the stated evaluation criteria and complied with relevant statutory and reg ulatory requirements.” B anknote Corp. of Am. v. United States, 56 F ed. Cl. 377, 381 (2003), aff’d, 365 F .3d at 1345.

4. The F ailure of VariQ and Its Subcontractors to Satisf y the Threshold P ast P e rf orm ance C riteria Does Not Render the ATA’s Evaluation of VariQ’s P r oposal Im proper
W ith respect to the initial cri teria set forth in the Past Performance factor description, plaintiff contends that the ATA failed to evaluate the past performance of VariQ and its subcontractors under those criteria, and even if it did, VariQ and its subcontractors did not satisfy those criteria. Specifically , plaintiff contends that neither VariQ nor its subcontractors met the requirement that two of three projects submitted as ex amples of past performance be for the provision of overseas cy

ber trainingfor the federal g overnment (either directly or indirectly

). 1 4

1 4 Plaintiff advances another contention–that VariQ and its subcontractors did not indicate whether, with respect to their completed projects, the ordering entity found the services

- 23-Defendant does not challeng e plaintiff’s contention, which is supported by the contents of VariQ’s proposal. See g e n erally AR 758-75. However, the failure of VariQ and its subcontractors to meet this requirement does not mean that the ATA improperly evaluated VariQ’s proposal. Rather, as noted above, offerors and subcontractors who could not meet the threshold past performance criteria were entitled to establish their ex perience under the remainingcriteria in the Past Performance factor description.

5. The ATA’s Evaluation of VariQ’s P ast P erf

orm a nce Does Not Dem onstrate the Consideration of

Relevant F actors

Plaintiff nex t contends that if the ATA was correct to evaluate VariQ’s proposal under the remainingcriteria in the Past Performance factor description, its evaluation lacked a rational basis because VariQ and its subcontractors did not meet those criteria. Specifically , plaintiff contends that neither VariQ nor its subcontractors “manag ed a multimillion dollar series of training in a g lobal theatre with many simultaneous iterations requiringex panding staffing resources to support deliveries.” Pl.’s Mot. 32. Plaintiff further contends that neither VariQ nor its subcontractors had “experience in the acquisition, config uration and shipping of computer components.” I d. Althoug h defendant does not dispute plaintiff’s contentions in its response to plaintiff’s motion, 1 5 and there is support for these contentions in the administrative record, see g enerally AR 758-75, their accuracy is not relevant. VariQ and its subcontractors were not required to demonstrate that they had manag ed such a training prog ram or acquired, config ured, and shipped computer components. Rather, they were required to demonstrate the ability to perform those tasks. 1 6

provided to be acceptable. The court disregards this argument because it is premised on erroneous assertions of fact. See Pl.’s Mot. 28 (asserting that (1) VariQ did not meet the requirement, but ig noring the fact that the project at issue was not complete at the time VariQ submitted its proposal, and (2) VariQ’s subcontractors did not meet the requirement for five of the six projects identified, but ig noring the fact that of those six projects, only two were complete at the time of proposal submission).

1 5 Defendant does address plaintiff’s first contention in its replyin support of its crossmotion for judg ment on the administrative record. However, the court normally does not consider contentions that were not advanced in a party ’s response to a motion. See Nichols v. Mich. City

Plant Planning Dep’t, 755 F .3d 594, 600 (7th Cir. 2014) (holding that a nonmoving party “waives any

argu ments that were not raised in its response to the mov ing party ’ s motion”); see also SmithKline B eecham Corp. v. Apotex Corp., 439 F .3d 1312, 1319 (F ed. Cir. 2006) (“[ A] r g uments not raised in the openingbrief are waived.”).

1 6 Althoug h plaintiff may be correct that it has satisfied the Past Performance criteria, plaintiff’s ex perience does not foreclose the possibility or likelihood that VariQ could be successful in carry

ing out the requirements of the contract. I t would be a non sequitur to sug g est

- 24-More problematic is the fact that the administrative record lacks any contemporaneous evidence indicating

how the ATA determined that VariQ’s proposal satisfied the criteria set forth in the Past Performance factor description. The Technical Evaluation Team’s assig nment of an
ex c eptional rating for VariQ’s past performance was based on (1) a vag ue assertion that VariQ’s “stated past ex perience” indicated that there was “a hig h ex pectation that [ VariQ would] be able to perform or ex c eed the requirements of the statement of work successfully ,” (2) its conclusion that VariQ’s “stated ex

perience [ was] centric to cy ber training , ” and (3) its acknowledg ment that VariQ had “[ e] x cellent reviews from multiple g overnment and public entities.” I d. at 3295. The contracting

officer adopted these finding s without further analy sis. I n short, neither the Technical Evaluation Team nor the contracting officer explicitly addressed, for any

of the nine past performance ex amples supplied by VariQ and its subcontractors, whether (1) “the tasks performed [ were] of a similar complex ity to the work solicited under this solicitation”; (2) the projects reflected “the ability to manag e a multi-million dollar series of trainingin a g lobal theatre”; (3) the projects included “[ m] any simultaneous iterations requiringex panded staffing resources to support deliveries”; (4) the projects included “direct support of an international law enforcement training prog ram”; (5) the projects “illustrate[ d] ex perience in the acquisition, config uration and international shippingof various computer related components”; and (6) the projects reflected “ex isting OEM (Orig inal Equipment Manufacturer) partnerships and the ability to forg e necessary

manufacturer relationships to ensure compliance with required licensing and End User L icense Ag reements.” I d. at 455. Herein lies the flaw in this procurement. As noted above, the evaluation and rating of proposals is within the discretion of the procuringag ency

. W hen such actions are being challeng ed in a bid protest, the court must “determine whether the . . . ag ency provided a coherent and reasonable ex planation of its ex ercise of discretion . . . .” I

mpresa, 238 F .3d at 1333; accord SEC v. Chenery Corp., 332 U.S. 194, 196- 97 (1947) (“I f the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable. I t will not do for a court to be compelled to guess at the theory underly ing the ag ency ’s action; nor can a court be ex pected to chisel that which must be precise from what the ag ency has left vag

ue and indecisive.”). Moreover, the ag e n cy ’s action must “evinc[ e] rational reasoning and consideration of relevant factors.” Advanced Data Concepts, 216 F .3d at 1058. However, the Technical Evaluation Team’s evaluation of VariQ’s past performance–twice endorsed by the contracting

officer–does not meet these standards because it does not address any of the criteria set forth in the Past Performance factor description; in other words, it does not evince a consideration of relevant factors. I ndeed, the narrative summary provided by

the Technical Evaluation Team in support of its ex ceptional rating

is little more than a copy -and-paste of the solicitation’s definition of “ex ceptional.” Compare AR 57 (defining “ex ceptional” as: “B ased on the offeror’s recent/relevant performance record, the Government has a hig h ex pectation that the offeror will successfully

perform or ex ceed the requirements. I t is unlikely

that Government intervention will be needed in order to obtain the required services.”), with id. at 3295 (containing the following

that because plaintiff is the successful incumbent, no other company could successfully

perform the identical contract requirements.

- 25-narrative summary : “B ased on the vendors [ sic] stated past ex perience and the PPI Rs [ r eports]

presented[ ,] there is a hig h ex p ectation that the vendor will be able to perform or ex ceed the requirements of the statement of work successfully . I t is unlikely that Government intervention will be needed in order to obtain the required services.”). Consequently , the court has no basis for determining

whether the ATA considered all of the relevant factors when assessing the past performance of VariQ and its subcontractors. 1 7 Accord AshB ritt, I nc. v. United States, 87 F ed.

1 7 The parties’ assertions reg arding what the ATA did and did not consider in evaluating the past performance of VariQ and its subcontractors is no substitute for the absent ATA analy sis. See B owman Transp., I nc. v. Ark.-B est F reig ht Sy s., Inc., 419 U.S. 281, 285-86 (1974) (holding that a court “may not supply

a reasoned basis for the ag ency ’s action that the ag ency itself has not g iven”), cited in OMV Med., I nc. v. United States, 219 F .3d 1337, 1344 (F ed. Cir. 2000) (apply

ing the rule in a bid protest); B urling ton Truck L ines, I nc. v. United States, 371 U.S. 156, 168-69 (1962) (“The courts may not accept . . . counsel’s post hoc rationaliz ations for ag ency action; . . . an ag ency ’s discretionary order [ can only ] be upheld, if at all, on the same basis articulated in the order by the ag ency

itself[ .] ”); Chenery , 332 U.S. at 196 (“[ A] reviewing court, in dealingwith a determination or judg ment which an administrative ag ency alone is authoriz ed to make, must judg e the propriety of such action solely

by the g rounds invoked by

the ag ency . I f those g r ounds are inadequate or improper, the court is powerless to affirm the administrative action by

substituting what it considers to be a more adequate or proper basis.”).

I n addition, the contracting officer’s subsequent ex

p lanation reg arding what she considered when performing her best value tradeoff analy sis, set forth in her statement of facts submitted to the GAO, is not an adequate substitute for a contemporaneous ex planation. I n her statement of facts, the contracting officer merely identified some of VariQ’s past performance references, the dates of contract performance, and the contract values; provided g e neral descriptions of the work performed under some of the contracts; indicated the quality of VariQ’s performance under some of the contracts; and unclearly stated that VariQ “provided one reference where they

were a prime . . . and other references as a subcontractor/teaming partner with overseas ex perience.” AR 3746-47. She did not address all of the criteria set forth in the Past Performance factor description, nor did she address any of the past performance information submitted for either of VariQ’s subcontractors. I n another portion of her statement of facts in which she responded to plaintiff’s protest alleg ations, the contracting officer did discuss VariQ’s subcontractors and provided support for her conclusion that VariQ and its subcontractors had both federal and overseas ex perience. However, she still did not address many of the criteria set forth in the Past Performance factor description. I n any event, the court is not inclined to credit the contracting

officer’s representations to the GAO, as they constitute post hoc rationaliz ations for the ATA’s earlier decision. See CRAssociates, I n c. v. United States, 95 F ed. Cl. 357, 377 (2010) (remarking

that there is no leg al authority that “requires the court to g ive” a contracting officer’s statement of facts submitted during a GAO bid protest “any

independent, let alone dispositive, weig ht”); Al Ghanim Combined Grp. Co. Gen. Trad. & Cont. W

. L .L . v. United States, 56 F ed. Cl. 502, 508 (2003) (“The Supreme Court has made clear that post hoc rationaliz ations offered by the ag ency should be afforded limited importance in the court’s

- 26-Cl. 344, 370 (“B ecause the ag ency has provided no supportingdocumentation to ex plain the scores it assig ned to [ the protester] , this Court cannot determine whether the ag ency ’s . . . scoring of [ the protester’s] revised proposal took into account the amplified information on past performance and had a rational basis.”), clarified by 87 F ed. Cl. 654 (2009); see also F la. Power & L ig ht Co. v. L orion, 470 U.S. 729, 744 (1985) (“I f the record before the ag ency does not support the ag e ncy

action, if the ag ency has not considered all relevant factors, or if the reviewing court simply

cannot evaluate the challeng ed ag ency action on the basis of the record before it, the proper course, ex cept in rare circumstances, is to remand to the ag ency for additional investig ation or ex planation.”). I n the absence of a coherent and reasonable
ex p lanation from the ATA of its evaluation of VariQ’s proposal under the Past Performance factor, the court cannot ascertain whether the ATA’s evaluation had a rational basis. 1 8

C . The ATA’s Evaluation of VariQ’s Corporate Experience Plaintiff’s second protest g round is that the ATA unreasonably evaluated VariQ’s proposal under the Corporate Ex perience factor. More particularly , plaintiff claims that the ATA assig ned streng ths to VariQ’s proposal that were not related to the criteria set forth in the solicitation’s Corporate Ex perience factor description or the work described in the solicitation’s statement of work. Plaintiff further contends that the ATA did not identify the obvious weaknesses and deficiencies in VariQ’s proposal. As previously

noted, because a procuring ag ency has broad discretion in making a best value determination, a court will not disturb the technical rating s assig ned by the ag ency

during its evaluation of proposals unless those rating s are (1) unreasonable, (2) inconsistent with the solicitation, or (3) noncompliant with the relevant statutes and reg ulations. This g eneral prohibition ex tends to a procuring ag ency ’s assig nment of streng ths, weaknesses, and deficiencies to an offeror’s proposal. See, e.g ., F emme Comp I nc. v. United States, 83 F ed. Cl. 704, 741-42 (2008) (“The [ p r ocuringag ency ’s] conclusion that [ the] proposal revisions prompted by discussions were sufficient to eliminate weaknesses and improve some rating s, but insufficient to be assig n ed streng ths or improve other rating s, was well within the [ its] discretion in evaluating proposals.”); id. at 751-52 (“I t was well within the [ procuringag ency ’s] broad discretion in evaluatingproposals to assig n streng ths to those offerors that met or ex ceeded four

analy sis.” (citing Citiz e ns to Preserve Overton Park, 401 U.S. at 419)); Cubic Applications, I nc. v. United States, 37 F ed. Cl. 339, 343-44 (1997) (noting that the court had “a choice about the deg ree of relevance to assig n to” postdecisional documents included in an administrative record).

1 8 Given this conclusion, the court need not address plaintiff’s remaining arguments reg arding the ATA’s evaluation of VariQ’s proposal under the Past Performance factor, such as plaintiff’s contention that the streng ths that the ATA assig ned to VariQ’s proposal were not tied to the ex p r ess criteria in the Past Performance factor description, or its contention that the ATA improperly

focused on VariQ’s past work in cy ber security , rather than VariQ’s past work in overseas cy

ber security

training

.

- 27-substitute g oals and no one else.”); see also Aero Corp., S.A. v. United States, 38 F ed. Cl. 739,

763 (1997) (“Decisions as to the adequacy o f the information presented in a proposal are . . . rig htfully left to the discretion of evaluators . . . .”). Upon reviewing

the evidence in the administrative record, the court cannot conclude that the ATA’s assig nment of streng ths to VariQ’s proposal under the Corporate Ex perience factor was, as plaintiff contends, unreasonable or inconsistent with the solicitation. W ith respect to the first streng th identified by the Technical Evaluation Team and endorsed by the contracting officer–“[ t] he vendor’s core competency is cy ber investig ations and I T infrastructure”–plaintiff contends that the ATA improperly focused on work not required under the solicitation, rather than on cy

b er security

training . W ith respect to the second identified streng th–“[ t] h e vendor is well versed in training

in an international setting ” –plaintiff asserts that VariQ has, at most, minimal corporate ex perience in overseas cy ber security

training

. And, with respect to the third identified streng th–“[ r] obust description and identification of key personnel with clear manag ement structure”–plaintiff arg ues that VariQ did not identify the roles of its proposed key personnel, that the role of one of VariQ’s proposed manag e rs is minor, and that VariQ’s proposed manag ement structure was not clear. On their face, all but one of plaintiff’s contentions amount to nothing more than disag r e ements with the streng ths assig ned by the ATA; the remainingcontention, that VariQ did not identify the roles of its proposed key personnel, is just incorrect, see AR 750-51 (identify ing the prog ram manag er and describing his responsibilities), 778 (describingthe prog ram manag er’s role in the transition process), 778-79 (describing , in a table captioned “Org aniz a tional Roles & Responsibilities,” the role of the prog r am manag er). 1 9 According ly , plaintiff has not met its heavy burden of establishingthat the ATA’s evaluation was unreasonable or inconsistent with the solicitation. Accord B a nknote, 56 F ed. Cl. at 384 (“[ T he protester] o f fers little more than its disag r eements with the [ procuring ag ency ’s] overall assessment of the adequacy of its proposal versus that of its competitors. Such naked claims, no matter how vig orous, fall far short of meeting the heavy

burden of demonstrating that the finding s in question were the product of an irrational process and hence were arbitrary

and capricious.”). Plaintiff’s second contention is that when evaluating VariQ’s proposal on the Corporate Ex perience factor, the ATA did not identify the obvious weaknesses and deficiencies related to the provision of course instructors. Specifically , plaintiff argues that the ATA should have assig ned sig n ificant weaknesses for VariQ’s purported failure to demonstrate the “resources available to enable [ it] to fulfill requirements,” the “manpower presently in-house or the ability to acquire the ty

pe and kinds of manpower proposed,” and “accessibility to qualified facilitators [ who are] elig ible to travel on short notice to countries in distant locations,” AR 455, because VariQ (1) did not identify any instructors who would be available to perform the contract, (2) did

1 9 The only k e y

personnel required by

the solicitation, AR 303, 329-30, and identified by VariQ in its proposal, id. at 728-47, 750-51, was a prog ram manag er.

- 28-not demonstrate the capability to identify

qualified instructors who could travel internationally on short notice, and (3) unduly relied upon the ATA to assist with the provision of instructors. 2 0
As an initial matter, the court notes that neither the description of the Corporate Ex perience factor contained in the solicitation nor the questions and answers included in the amendments to the solicitation contained a requirement that offerors specifically identify course instructors. Rather, offerors were only required to “[ d] emonstrate accessibility to qualified facilitators.” I d . at 455; accord id. at 289 (“[ I ] t is the responsibility of the vendor to provide documentation that they

are able to provide instructors.”); see also id. at 286 (noting that offerors could provide information concerning proposed instructors “if” they had instructors). F urther, plaintiff is incorrect that the ATA assig ned a weakness to another offeror for failing to identify course instructors; the weakness assig ned by the ATA was for the quality of the instructors that the offeror did identify . See id. at 3334 (“[ T] he vendor states [ it has] access to qualified instructors, but only

identif[ ies] non-key

instructors.”). Thus, VariQ’s failure to identify any instructors does not, as plaintiff arg u es, contravene the solicitation. Plaintiff’s other objections are also without merit. I n support of its contention that VariQ did not demonstrate the capability to identify qualified instructors who could travel internationally

on short notice, plaintiff merely avers that VariQ’s statements were insufficiently specific and that VariQ’s supporting evidence was not relevant. And, in challenging VariQ’s statement that it would work with the ATA to identify qualified instructors, plaintiff disreg ards that the solicitation, and the questions and answers included in the amendments to the solicitation, provided that qualified incumbent instructors would have the rig ht of first refusal to work for the contract awardee, and that the ATA would provide a list of those instructors to the contract awardee. At bottom, plaintiff’s objections are nothing more than disag r eements with the ATA’s evaluation of VariQ’s proposal, and are insufficient to meet plaintiff’s heavy burden of establishing that the ATA’s failure to assig n a weakness on this issue was improper.

2 0 Plaintiff advances a fourth reason in its reply in support of its motion for judg ment on the administrative record: that VariQ inconsistently indicated in its proposal that (1) “it had a ‘pool’ of qualified instructors” and (2) it “would have to ‘formulate’ this instructor pool and ‘enhance’ its recruitment sy stem,” an inconsistency

that the ATA considered to be a weakness in another offeror’s proposal. Pl.’s Reply 23 (quoting AR 728, 747). The court g e nerally disreg ards arg

uments first advanced in a reply brief. See SmithKline B eecham, 439 F .3d at 1319; Novosteel SA v. United States, 284 F .3d 1261, 1274 (F ed. Cir. 2002) (“Raisingthe issue for the first time in a reply brief does not suffice; reply briefs reply to arg uments made in the response brief–they

do not provide the moving party with a new opportunity

to present y et another issue for the court’s consideration.”). However, if the court were inclined to address plaintiff’s arg

ument, it would reject it. A reasonable reading of VariQ’s proposal is that VariQ would formulate an instructor pool using both instructors in its ex isting pool and the incumbent’s instructors who possessed the right of first refusal to work for the contract awardee. According ly , VariQ’s representations are not facially inconsistent.

- 29-I n sum, plaintiff has not established that the ATA’s evaluation of VariQ’s proposal on the

Corporate Ex perience factor was unreasonable or inconsistent with the solicitation.

D. The ATA’s Evaluation of VariQ’s Technical Com pliance The third protest g round advanced by plaintiff is that the ATA misevaluated VariQ’s proposal on the Technical Compliance factor. Plaintiff specifically challeng es the reasonableness of each of the three streng ths assig ned by

the ATA to VariQ’s proposal for this factor, and also complains that VariQ should have been assig n ed a weakness for its heavy reliance on its subcontractors. Plaintiff arg ues that the first assig ned streng th–“[ c] lear understanding of roles and scope of project”–is unreasonable because VariQ proposed work that was bey ond the scope of the statement of work. As plaintiff notes, the ATA ex plained in the statement of work that it was procuringthe “delivery

of training courses to include instructors . . . .” I d. at 59. VariQ, plaintiff avers, proposed to do more. Quoting several phrases from VariQ’s proposal, plaintiff sug g ests that VariQ proposed to train instructors, develop new courses, and improve existing courses, reflecting its lack of understanding of the project’s requirements. Moreover, plaintiff contends, the ATA assig ned weaknesses to the proposals of other offerors for proposing work that was bey o nd the scope of the statement of work, reflecting the disparate treatment of offerors. Defendant disag

rees with plaintiff’s contentions, arg uing that this assig ned streng th is supported by the contents of VariQ’s proposal and that the ATA treated all offerors equally

. As a threshold matter, plaintiff misconstrues the contents of VariQ’s proposal. The lang uag e quoted by

plaintiff is contained in the section of VariQ’s proposal that addresses VariQ’s corporate ex

perience. See id. at 788. I n that section, VariQ was not, for the most part, describingthe work that it intended to perform under the contract being solicited by the ATA. Rather, it was describing

the work that it currently performs for its clients. And, to the ex tent that some of the languag e quoted by plaintiff could be construed as a proposal to modify and improve the ATA’s cy

ber security

training prog r am, see id. (containingVariQ’s representation that it was “uniquely

suited to effectively

transition, maintain, modif[ y ] and improve the ex isting Cy b er Training

Prog ram”), the ATA represented in the questions and answers contained in Amendment 001 to the solicitation that it would entertain sug g estions for course improvement during contract performance. Moreover, the ATA did not treat the offerors unequally. I t is undisputed that procuring ag encies “must treat all offerors equally , evaluating proposals evenhandedly ag a inst common requirements and evaluation criteria.” B anknote, 56 F ed. Cl. at 383 (citing Seattle Sec. Servs., I nc. v. United States, 45 F ed. Cl. 560, 569 (2000)). Thus, when a procuring ag ency decides to assig n a streng th or a weakness for an aspect of one proposal, it must consistently assig n that streng th or weakness to all proposals. See, e.g ., CMI Mg mt., I nc. v. United States, 115 F ed. Cl. 276, 300-01 (2014) (“I

t is difficult to reconcile the Ag ency ’s assig n ment of a streng th for positive AQL rating s to [ one offeror] w ith its denial of a streng th for [ the protester’s] similar positive

- 30-AQL

rating s.”); B ay

F irst Sols., L L C v. United States, 102 F ed. Cl. 677, 686 (2012) (“[ The protester] was not assig n e d a streng th . . . despite havingpresented resumes with the requisite
ex p erience, whereas [ the contract awardee] was assig n ed a streng th . . . despite having included resumes that clearly

did not meet all requirements. This constitutes either disparate treatment of offerors, or an irrational evaluation of [ the contract awardee’s] and [ the protester’s] proposals.”). However, unlike VariQ’s proposal, the two proposals cited by plaintiff reflected that those offerors were proposing work that was clearly

bey ond the scope of the statement of work. I n one proposal, the offeror affirmatively represented, in a section titled “Technical UnderstandingResponse to [ Statement of W ork] Requirements,” AR 1140, that it would “ex ecute the assigned Prog ram of I nstruction (POI ) ,” “coordinate with ATA to ensure the latest information on emerg ing cy ber threats is included in the ATA-approved POI ,” and “customiz e the content of each eng ag ement to address specific requirements of each country ,” id. at 1141. The Technical Evaluation Team according ly assig ned the following weaknesses: (1) “The vendor does not demonstrate understanding of the requirements of the [ statement of work] by stating that [ it would] be involved with the ex e cution of POI s,” and (2) “The solicitation does not require any

course customiz ation or manipulation as implied by the vendor . . . .” I d . at 3310. And in the other proposal, the offeror indicated in its “Ex e cutive Summary ” that it would “conduct[ ] needs assessments,” explaining that “[ u] pon appropriate comprehensive Needs Assessments to assess a country partner’s present Antiterrorism/CounterTerrorism capabilities . . . , [ it would] ensure the coordination of a Country Assistance Plan and adhere to the proper roll-out of the 18 cy

ber trainingcourse seg ments.” I d. at 1812. The Technical Evaluation Team according ly

commented: “The vendor does not have a g ood understandingof the project requirements. F or ex ample, several references were made of a needs assessment, which [ is] not part of this proposal.” I d . at 3328. I n short, for these two offerors, there was support in their proposals for the Technical Evaluation Team’s assig ned weaknesses and comments.

Plaintiff nex t arg ues that the second assigned streng th–“[ e] x c ellent backg round knowledg e of ATA and solicitation requirements”–is unreasonable because neither VariQ nor is subcontractors had any

“ATA contracts or firsthand knowledg e of ATA,” and because VariQ’s alleg ed failure to satisfy

the requirements set forth in the Corporate Ex perience and Past Performance factor descriptions reflected that “any such background knowledg e was of little value in understanding

the solicitation requirements . . . .” Pl.’s Mot. 39. B o th arg uments are, on their face, nothing

more than disag r eements with the ATA’s assessment of VariQ’s proposal. Plaintiff’s objection to the third assig ned streng th–“[ h] as a hig hprobability of success”–is that the streng th is unrelated to the factor at issue, under which offerors were to “demonstrat[ e] technical understanding

of all requirements in the Statement of W ork . . . .” AR 454. Plaintiff’s objection lacks merit. F irst, a reasonable reading of the assig n ed streng th is that the ATA concluded that VariQ demonstrated its understanding of the requirements, and therefore had a hig h probability

of successfully

meeting those requirements. Second, the lang uag e of the streng th is taken directly

from the definition of the superior rating , see id. at 56 (“Offer has a hig h probability

of success with the lowest potential for unsuccessful performance.”), rendering it

- 31-superfluous to the ATA’s evaluation, g iven that the Technical Evaluation Team assig n ed, and the contracting

officer adopted, a superior rating for VariQ’s proposal on this factor. 2 1

F inally , plaintiff contends that the ATA should have assig n ed a weakness to VariQ’s proposal for VariQ’s heavy reliance on its subcontractors because other offerors were penaliz ed for the same transg

ression. However, aside from remarking that VariQ’s proposed prog ram manag er and other individuals are employ e es of one of VariQ’s subcontractors, plaintiff does not
ex p lain how VariQ’s proposed reliance on subcontractors is equivalent to or heavier than other offerors’ reliance on subcontractors. And, the court declines plaintiff’s implied invitation to review the proposals and make its own determination reg arding the offerors’ relative reliance on subcontractors for contract performance. Thus, g iven the deference afforded to a procuring ag ency ’s evaluation of proposals, the court cannot conclude that the ATA treated the offerors unequally by failing to assig n a weakness to VariQ’s proposal for VariQ’s purported heavy reliance on its subcontractors.

I n sum, plaintiff has not established that the ATA’s evaluation of VariQ’s proposal on the Technical Compliance factor was unreasonable or inconsistent with the solicitation.

E. The Contracting Of

f icer’s Best Value Determination As its final protest g round, plaintiff contends that the contracting officer’s best value determination was flawed. I nitially , plaintiff contends that the rating s that the ATA assig ned to VariQ’s proposal for the three most important nonprice factors were unreasonable and inconsistent with the solicitation. Plaintiff further contends that its proposal was far superior to the proposal submitted by VariQ. According ly , in plaintiff’s view, the contracting officer’s determination that the two proposals were “essentially equal” under the nonprice factors lacks a rational basis. Moreover, plaintiff arg ues, the contracting

officer’s best value determination reflects a misunderstanding of the relative importance of the evaluation factors set forth in the solicitation.

As ex plained above, the rating s assig ned by the Technical Evaluation Team and adopted by the contracting

officer for VariQ’s proposal under the Corporate Ex perience and Technical Compliance factors were not unreasonable or inconsistent with the solicitation. However, the court was unable to determine whether the ATA’s evaluation of VariQ’s proposal under the Past Performance factor was similarly reasonable and consistent with the solicitation because the ATA did not provide a coherent and reasonable ex planation reflecting

that it considered all of the

2 1 Plaintiff lodg e s a second objection to the third assigned streng th in its reply in support of its motion for judg ment on the administrative record–that the ATA did not assig n this streng th to any other offeror. As noted above, the court is disinclined to address arg uments first raised in a reply brief. See SmithKline B eecham, 439 F .3d at 1319; Novosteel SA, 284 F

. 3d at 1274. Moreover, the court’s conclusion that the third assig ned streng th was superfluous to the ATA’s evaluation renders this late-asserted objection moot.

- 32-relevant factors. As a result, the court cannot ascertain the propriety of the ex ceptional rating assig ned to VariQ’s proposal for the Past Performance factor or the superior rating assig ned to VariQ’s nonprice proposal overall. And, in the absence of such information, it is impossible to assess the propriety

of the contracting

officer’s best value determination. 2 2 I n short, the ATA’s decision to award the contract to VariQ lacked a rational basis. Due to its effects on the best value determination and the subsequent award of the contract to VariQ, the ATA’s failure to provide an ex p lanation for its evaluation of VariQ’s proposal on the Past Performance factor constitutes a sig nificant procurement error. I ndeed, pursuant to the solicitation, the Past Performance factor is the third most important factor to be considered by

the ATA. Thus, a different evaluation under this factor mig h t affect the results of the contracting

officer’s best value tradeoff analy sis and, therefore, the award of the contract. Moreover, this error is prejudicial to plaintiff. W hen the contracting

officer conducted her best value tradeoff analy

sis after the first GAO protest, she limited her discussion to the proposals submitted by

plaintiff and VariQ. And, if VariQ’s proposal is assig ned a rating other than
ex c eptional for the Past Performance factor, the contracting officer could alter her assessment that plaintiff’s hig h technical rating s were not worth the $2 million price premium, especially in lig ht of the fact that price was the least important factor under the solicitation. Thus, there was a substantial chance that plaintiff would have been awarded the contract absent the ATA’s error.

F . P laintif

f ’s Request f

o r Injunctive Relief

B e cause plaintiff has established the ex istence of a sig n ificant, prejudicial procurement error, the court must address plaintiff’s request for injunctive relief. The Court of F e deral Claims has the authority

to award injunctive relief pursuant to 28 U.S.C. § 1491(b)(2), and is g uided in making such an award by RCF C 65(d). I n determining whether to award a permanent injunction, a court must consider whether (1) the plaintiff has succeeded on the merits; (2) the plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3) the balance of hardships favors the g rant of injunctive relief; and (4) it is in the public interest to g rant injunctive relief. PGB A, L L C v. United States, 389 F

. 3d 1219, 1228-29 (F ed. Cir. 2004). Plaintiff has succeeded on the merits, and defendant concedes that plaintiff has satisfied the remaining three factors. According ly , an award of injunctive relief is appropriate in this matter.

2 2 As a result, the court cannot assess the merits of plaintiff’s remaining arguments–that plaintiff submitted the superior proposal to the ATA, that it was error for the contracting officer to declare its proposal to be “essentially equal” to the proposal submitted by VariQ, and that the contracting

officer misunderstood the relative importance of the evaluation factors.

- 33-III. CONCLUSION

F or the reasons set forth above:

• Plaintiff’s motion for judg ment on the administrative record is G RANTED IN P ART and D ENIED IN P ART

.

• Defendant’s cross-motion for judg ment on the administrative record is G RANTED IN P ART and DENIED IN P ART

.

• B ecause the ATA did not provide an ex planation for its evaluation of VariQ’s proposal on the Past Performance factor, the ATA’s Past Performance and Overall rating s for VariQ’s proposal must be SET ASIDE as arbitrary and capricious. Consequently , the contracting officer’s best value determination, which is based, in part, on those rating s, must also be SET ASIDE as arbitrary and capricious.

• The appropriate procurement officials at the ATA shall, at a minimum, (1) reassess VariQ’s proposal under the Past Performance factor, (2) assig n new rating s for both the Past Performance factor and the nonprice proposal overall, (3) perform a new best value tradeoff analy sis that takes into account the new rating s, and (4) make a new award decision. Performance of the contract awarded to VariQ is ENJOINED pending the ATA’s corrective action. Should plaintiff file another bid protest in this court in conjunction with the solicitation at issue here, the clerk shall waive the court’s filing fee and assig

n the bid protest to the undersig ned. The court has filed this ruling under seal. The parties shall confer to determine ag reed-to proposed redactions. Then, by no later than Monday, January 4, 2016 , the parties shall file a joint status report indicating their ag reement with the proposed redactions, attaching a copy of those pages of

the court’s ruling containing proposed redactions, w ith all proposed redactions clearly indicated. No costs. The clerk is directed to enter judg ment in accordance with this Opinion and Order.

IT IS SO ORDERED. s/ Marg aret M. Sweeney MARGARET M. SW EENEY J udg e

- 34-