# In the United States Court of Federal Claims

No. 17

- 836 C (Filed Under Seal : September 12 , 2017 ) (Reissued for Publication: October 1 2 , 2017) 1

************************************* SYNERGY SOLUTIONS, INC.

, *

* Plaintiff, * P osta ward Bid Protest; Judgment on the

* Administrative Record; Blue & Gold Fleet

v. * Waiver Rule ; Corporate Experience; Past

* Performance; Cost Realism; Prejudice THE UNITED STATES, *

*

Defendant

. *

**** *********************************

Julia Diane Di Vito

, Washington, DC, for plaintiff.

Eric Evan Laufgraben , U nited States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY , Judge

In this bid protest, plaintiff Synergy Sol utions, Inc. (“ SSI ”) challenges the award of a contract by the United States Department of Energy’s (“DOE”) National Nuclear Secu ri ty Administration (“NNSA”) t o TUVA, LLC (“TUVA”). Currently before the court are the parties’

cross

- motions for judgment on the administrative record. As explained below, because the

NNSA did not act arbitrarily, capriciously, or contrary to law, the court denies SSI’s motion for judgment on the administrative record and grants defendant’s cross

- motion for judgment on the

admi nistrative record.

1 This reissued Opinion and Order incorporates the redactions proposed by the parties in their September 26, 2017 joint status report as well as two additional redactions imposed sua sponte by court

. The court ’ s redactions appear in line s 3 and 10 of the second paragraph on page 5 0 ; both redactions are of information the parties jointly agreed to redact but inadvertently failed

to designate in their statu s report . Redactions are indicated with a bracketed ellipsis (“[. . .]”)

. The court notes that the parties were not in complete agreement with respect to the proposed redactions, as discussed in footnote 5

.- 2

- I. BACKGROUND

A. The Solicitation

The NNSA’s mission

is to strengthen national security through the military application of nuclear energy and by reducing the global threat from terrorism and weapons of mass destruction. DOE/NNSA is a vital contributor to reducing the global nuclear danger through its national security, nuclear safety, nonproliferation activities, and nuclear materials stabilization by supporting a safe, secure, reliable stockpile, and the safe dismantlement and di sposal of excess nuclear weapons.

AR 112. 2 “The multi

- disciplined DOE/NNSA safeguards and security programs . . . directly support protection of NNSA personnel, facilities, nuclear weapons, and information from a full spectrum of threats

. . . .” Id. The NNSA’s Office of Personnel and Facility Clearances ( “ OPFC ” )

, located on Kirtland Air Force Base in Albuquerque, New Mexico, “is responsible for the management and implementation” of these programs. Id.

On June 10, 2013, the NNSA prepared an Indepen dent Government Cost Estimate (“IGCE”) for the provision of “Personnel Security and Facility Clearance Programs Support

Services” over a five year period. Id. at 1

- 4. The total cost was estimated at $32,123,912. Id. at 1. On March 13, 2014, the NNSA de veloped a corresponding Acquisition Strategy Plan. Id. at
5

- 11. On February 23, 2015, the NNSA issued its Source Selection Plan (“SSP”) , which set forth “the criteria, evaluation process and procedures, and rating methodology to be used by the Integrated Project Team (IPT) to evaluate offers for . . . Request for Proposal [(“RFP”) or “solicitation”)] No. DE

- SOL

- 0006736.” Id. at 14.

The RFP was issued on February 25, 2015. Id. at 32. It specifically sought a contractor to provide

, on a cost

- plus

- fixed

- fee basis

, “all personnel security program support to the NNSA clearance population of approximately 49,000 contractor and federal employees

. ” Id. at 33, 112

- 13 . In particular, as set forth in the RFP’s Performance Based Work Statement (“PBWS”), the

suc cessful offeror would be responsible for “ numerous and varied personnel security access authorization adjudicative and processing activities, as well as investigating and analyzing the required background investigations of approximately 8,200 clearance hol ders and 3,100 applicants per year.” Id. at 113 ; see also id. at 199 (identifying four PBWS areas: Program

M anagement

, Processing, Adjudication, and F oreign Ownership, Control, and Influence (“FOCI”)), 214 (identifying, in the RFP Questions and Answers ( “Q&A”), the six skill set categories of Adjudication, Administrative, Processors, Professional/Executive Administrative,

F OCI, and Vault Activities ). In addition, “OPFC conducts security reviews for approximately 9,500 human reliability program incumbent s per year and performs the processing of

2 The facts in this section are der ived from the corrected administrative record (“AR”), which was filed on July 31, 2017.- 3

- investigations for approximately 4,000 applicants for [Homeland Security Presidential Directive

12 (“ HSPD

- 12 ”)] Personal Identification Verification per year.” Id. at 113.

In section L of the RFP, the NNSA descri bed the information that offerors were required to provide in their proposals. Id. at 86

- 107. O fferors were directed to submit their proposals in

three volumes: Volume I: Offer and Other Documents ; Volume II: Technical and Management

Information ; and Volume III: Cost Proposal. Id. at 94

- 95. Offer or s were told that the

information in Volume s II and III would be evaluated pursuant to f ive evaluation criteria : Criterion 1: Technical Approach ; Criterion 2: Staffing Plan and Narrative and Program

Mana ger (“PM”) Qualifications ; Criterion 3: Corporate Experience ; Criterion 4: Past

Performance ; and Criterion 5: Cost. Id.

Then, in section M of the RFP, the NNSA indicated how the proposals would be evaluated, describing each of the five criteria. Id

. at 109

- 11. I n descending order of importance,

the criteria we re :

Criterion 1 ( Technical Approach ) The Government will evaluate the Offeror’s understanding of the requirements, and the completeness and feasibility of the proposed technical approach asso ciated with the PBWS requirements identified for this Criterion

in Section L. The Government will also evaluate the extent to which the Offeror’s technical approach demonstrates a thorough understanding of any

technical risks and the effectiveness of Offe ror’s approach to avoid or

minimize those risks.

Criterion 2 ( Staffing Plan and Program Manager Qualifications ) (A) Staffing Plan :

The Government will evaluate the Offeror’s Staffing Plan to determine the degree to which the proposed staffing levels a nd skill mix are likely to result in efficient and successful performance of the PBWS. Additionally, the Offeror’s approach to staffing during workload fluctuations will be evaluated to determine the degree to which the approach is likely to result in con tinuity, and successful accomplishment of the PBWS during workload fluctuation periods.

(B) Program Manager Qualifications :

The Government will evaluate the extent to which the proposed Program Manager possesses the education and relevant experience to effectively execute the duties and responsibilities of the Program Manager considering the nature, size, and scope of the work required in the PBWS, including consideration of the Minimum Personnel Qualifications for the Program Manager position at Sectio n J Attachment 6. The resume of the proposed Program Manager, without the documentation required in provision L.24(b)(2)(B) (if not currently employed by the Offeror), will be evaluated; however, the omitted documentation (letter of intent) will be noted as a performance risk.

Criterion 3 The Government will evaluate and assess the relevancy [ ] (similarity in- 4

- ( Corporate Experience ) nature, size in dollars, and complexity) and depth of the Offeror’s (or team member’s or subcontractor’s) experience (provid ed in Attachments L

- 9 and

L

- 10) 3 as it relates to performing the portions of the PBWS the Offeror (or team member or subcontractor) is proposed to perform. Any discrepancies between Offerors’ Staffing Plan and Offerors’ experience listed in

Attachment L

- 1 0 will be noted as a performance risk under this Corporate Experience evaluation criterion. The Government may consider the corporate experience of a predecessor or affiliated company of a team member as though the experience were the team member’s if the Government determines that the assets or resources of the predecessor or affiliated company will be brought to bear in performance under this contract. Only corporate experience that complies with the instructions contained in provision L

- 24(b)(3) [, whic h provides, in part, that “[c]ontracts listed shall include federal customers only,”] will be evaluated.

Criterion 4 ( Past

Performance ) Past performance is the measure of how well the Offeror has performed work similar to that required in this solicitati on. The Government will evaluate the Offeror’s (or team member’s or subcontractor’s) relevant information from the Past Performance Questionnaires, the self

- assessment information submitted for Criterion 3, and any relevant past performance information th e Government may obtain from other sources, to determine the degree to which the past performance demonstrates the Offeror ’ s (or team member’s or subcontractor’s) ability to successfully perform the portions of the PBWS the Offeror (or team member or subco ntractor) is proposed to perform. Additionally, the Government will consider the Offeror’s historic ability to recruit and retain personnel and ensure all required personnel are available

for contract start

- up. The Government may consider the past perfor mance of a predecessor or affiliated company of a team member as though the past performance were the team member’s if the Government determines that the assets or resources of the predecessor or affiliated company will be brought to bear in performance un der this contract. Past performance information must be within the last three years and in place for at least three months in order to be evaluated. If the Offeror (or team member or subcontractor) does not have a record of relevant past performance info rmation on contracts similar to the PBWS, or past performance information is otherwise not available, the Offeror will not be evaluated favorably or unfavorably on past performance and will be assigned a neutral rating.

Criterion 5 ( Cost ) The cost propo sal will not be rated, but will be used in determining the best

value to the Government in accordance with Section M.2 NNS

- M

- 1002. The cost proposal will be evaluated in accordance with [Federal Acquisition Regulation (“ FAR ”)] 15.404 to determine cost rea sonableness and realism. A significant cost deficiency or weakness that may cause the offer to be

3 Attachment L

- 9 to the RFP is captioned “ Corporate Experience & Self

- Assessment Form.” AR 197; accord id. at 95. Attachment L

- 10 to the RFP is a form captioned “Cor porate Experience Matrix.” Id. at 95; 199.- 5

- rejected is defined as one that is lacking in reasonableness or realism, and the

correction of which would cause a material alteration or revision of the

Off eror’s cost proposal. An unrealistic, unreasonable, or incomplete cost proposal may be evidence of the Offeror’s lack of, or poor, understanding of the requirements of the solicitation, and thus may adversely affect the Offeror’s rating on the Technical P roposal criteria.

Pursuant to FAR 15.404, the following will be evaluated:

( A ) Reasonableness :

The total price proposed for the five year period plus the Six

- Month Option to Extend Services price, including the Government baselined transition period a nd [Other Direct Costs (“ ODC ”)] amounts, and proposed fee will be used to evaluate price reasonableness. The cost proposal will be evaluated to determine the appropriateness of the underlying assumptions and estimating techniques used to generate the prop osed costs and the consistency of those assumptions and techniques with the proposed accomplishment of the required work. The Government may use any of the cost or price analysis techniques specified in FAR 15.404

- 1 to determine reasonableness. The

Gover nment may determine the offer unreasonable if the Offeror’s priced [Contract Line Item Numbers ] are materially unbalanced.

(B) Realism :

The cost proposal will be evaluated to determine if the estimated proposed

cost elements are realistic for the work t o be performed, reflect a clear understanding of the PBWS requirements, and are consistent with the Staffing Plan Summary submitted by the Offeror. Inconsistencies between the cost proposal and other portions of the proposal could raise concerns regarding the Offeror’s understanding of the requirements and its ability to perform the work for the proposed cost, and may affect the Government’s rating of the Offeror’s Technical Proposal. As a result of its cost realism analysis, the Government may adjust the Offeror’s proposed costs to reflect any additions or reductions in cost elements to realistic levels. Cost realism analysis will be used by the Government to establish each Offeror’s total probable cost for the best value determination. The total probab le cost (evaluated price) includes the sum of the Government evaluated costs of the Offeror’s proposal including the Six

- Month Option to Extend Services price, the Government baselined transition and ODC amounts, and total proposed fee for all requirements in the PBWS. The Offeror’s cost/price proposal will be evaluated using the probable cost computed by the Government. The Offeror’s proposed estimated costs shall not be controlling for source selection purposes.- 6

- Id. at 109

- 11 (footnote added)

. Accord ing to the NNSA :

In determining th e best value to the Government, Evaluation

Criteria 1

- 4, when combined, are significantly more important than cost/price; however cost/price will contribute substantially to the

selection decision. The Government is more concerned with obtaining a superior technical proposal than making an award at

the lo we st evaluated total cost to the Government (including fee).

Id. at 109.

In section M of the RFP

, the NNSA further indicated that the contract, which was set
aside for small businesses

, id. at 33, would be evaluated by the NNSA’s IPT

, id. at 108. The

NNSA intended “to make the award without discussions.” Id. If such an award could not be made on the basis of the offerors’ initial proposals, then the RFP provided that the Contracting

Officer would “establish a competitive range for proposals submitted as a result of this solicitation, comprised of all the most highly rated proposals.” Id. P roposals were due on March 30, 2015

. Id. at 205.

B. SSI’s and TUVA’s Propos al s

On March 30, 2015, the NNSA received ten proposals, id. at 2262, including proposals

from SSI , the incumbent, 4 and TUVA , the eventual awardee. S ee id. at 284

- 519 (SSI’s proposal)

, 520

- 755 (TUVA’s proposal)

. In April 2015, the NNSA asked the Defense Contract Audit Agency (“DCAA”) to perform a cost realism analys is o f TUVA’s cost proposal. See id. at
4508

- 09 (letter regarding SAVA’s cost proposal), 4513

- 14 ( letter regarding TUVA’s cost proposal ) , 4515

- 18 (DCAA memorandum regarding the NNSA’s request f or an analysis of Inquiries’s cost proposal).

On June 30, 2016, the NNSA conducted technical evaluations of both SSI’s and TUVA’s cost proposals. See id. at 861

- 62 (evaluation of SSI’s proposal), 863

- 64 (evaluation of TUVA’s proposal). On July 8, 2016, the NNSA concluded, “on the basis of the [IPT’s] evaluation and rating of each proposal against the evaluation criteria specified in the [RFP]

, ” that both SSI and TUVA were in “the competitive range for the purpose of conducting discussions.” Id. at 866

- 6 7

. T he NNSA separately informed SSI and TUVA

, by letter dated July 28, 2016, that they were

each within the established competitive range and that the NNSA had decided to enter into

written discussions with them : “The main purpose of these discussions is to notify [the offeror] of significant weakness, deficiencies, any pertinent adverse past performance information, and instances where the offeror’s price is considered to be too high, or too low by the Government.”

Id. at 874 (SSI’s letter)

, 904 (TUVA’s letter)

. In the letters, t he NNSA also informed SSI and

TUVA that they were each permitted to submit a final proposal revision (“FPR”) by August 12,

2016. Id. Both SSI and TUVA submitted timely FPRs. See id. at 948

- 1457 (SSI’s FPR)

, 1458

- 2135 (TUVA’s FPR).

4 Id. at 209

.- 7

- In its FPR, SSI proposed the provision of personnel security and facility clearances support services for a total estimated cost of $26, 199,522, to include both the base and option periods. Id. at 1284. SSI’s total proposed price of $28,672,731 in cluded SSI’s total proposed fee (for both periods) of $1,348,209. Id. In Attachment L

- 9 to its FPR, SSI identified three prior

contracts as evidence of its relevant corporate experience:

Contract

Number Date & Client Amount Invoiced

to Date or Final /

Initial Contract

Price Description

DE

- AC52

- 10NA29739 11/17/09

NNSA $[. . .] / $[. . .] Incumbent contract.

DESC0007680 12/28/12

DOE $[. . .] / $[. . .] SSI to provide “security support services for federal personnel, prime contractors, and subcontract ors.”

DE

SC0006145 12/19/11

DOE $[. . .] / $[. . .] SSI to provide “expert and professional technical assistance to conduct facility security surveys; review security plans; review vulnerability analyses; perform Personnel Security tasks; conduct

Informa tion Security tasks; conduct Incidents of Security Concern tasks;

and conduct or assist in self

assessments of all security program areas to identify deficiencies and required corrective actions.”

See i d. at 1161

- 75 (11/17/09 c ontract), 1176

- 78 (12/28/12 c ontract), and 1179

- 80 (12/19/11

c ontract). 5 In Attachment L

- 10 to its FPR, SSI proposed, based on its previous corporate

5 Error! Main Do cument Only. There is a well

- established presumption in favor of public access to court records and proceedings. See Nixon v. Warner Commc’ns , 435 U.S. 589, 597 (1978) (“[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.”); In re Violation of Rule 28(d) , 635 F.3d 1352, 1356 (Fed. Cir. 2011) (“There is a strong presumption in favor of a

commo n law right of public access to court proceedings.”). This presumption applies to court records in civil adjudicatory proceedings, AmerGen Energy Co. by & Through Exelon

Generation Co. v. United States , 115 Fed. Cl. 132, 136 (2014), including the records maintained by the Court of Federal Claims, 28 U.S.C. § 174(b) (2012); Pratt & Whitney Canada Inc. v.

United States , 14 Cl. Ct. 268, 273 (1988). The presumption of public access, however, “is not absolute. Every court has supervisory power over its own re cords and files, and access [may be] denied where court files might . . . become a vehicle for improper purposes.” Nixon , 435 U.S. at 598. Thus, “the decision as to access is one best left to the sound discretion of the trial court, a

discretion to be ex ercised in light of the relevant facts and circumstances of the particular case.”- 8

- Id. at 599. In exercising that discretion, a court “weigh[s] the interests advanced by the parties in light of the public interest and the duty of the courts.” Id. at 602; accord AmerGen Energy , 115 Fed. Cl. at 137 (“[T]his court must weigh the private interests advanced by the parties against the public’s interest in access to judicial proceedings.”). The party seeking to restrict access to court records bears a “heavy bu rden of overcoming the presumption of open judicial records.” Pratt & Whitney , 14 Cl. Ct. at 275. Indeed, only a “compelling justification” will suffice to overcome the presumption. Id. at 274; accord In re Violation of Rule 28(d) , 635 F.3d at 1358 (rem arking that another federal appellate court had concluded that “‘only the most compelling showing can justify’ limitations on the disclosure of ‘testimony or documents actually introduced at trial’” (quoting Poliquin v. Garden Way, Inc. , 989 F.2d 527, 533 (1st Cir. 1993))); AmerGen Energy

, 115 Fed. Cl. at 137 (“[A] party seeking to prevent disclosure of information submitted as evidence in dispositive judicial proceedings, whether at trial or in connection with a motion for summary judgment, must demonstrat e compelling reasons for keeping such information out of public view.”); see also Pratt & Whitney , 14 Cl. Ct. at 276 (“The common law right of access is particularly strong with respect to materials considered by a court.”). One circumstance in which

cour ts will deny public access to its records is when those records contain “business information that might harm a litigant’s competitive standing.” Nixon , 435 U.S. at 598. Indeed, the protective order in this case allows for the redaction of “information t hat must be protected to safeguard the competitive process, including source selection information, proprietary information, and confidential information . . . .” Protective Order ¶ 1; see also In re Violation of Rule 28(d) , 635 F.3d at 1360 (noting that the court’s local rule

– Rule 28(d)

– makes it “clear that the parties must confine their confidentiality markings [in their briefs] to information covered by a protective order”); Def. Tech., Inc. v. United States , 99 Fed. Cl. 103, 103 n.* (2011) (rejecting

t he proposed redaction of information that did not fall within the protective order’s definition of protected information); Magnum Opus Techs., Inc. v. United States , 94 Fed. Cl. 512, 519 n.* (2010) (rejecting proposed redactions “not concerning ‘protected information’ as defined in the protective order”); cf. Linc Gov’t Servs., LLC v. United States , 96 Fed. Cl. 672, 724 (2010) (“The purpose of redaction . . . is to safeguard the competitive process, not to withhold information that a party frowns on making public.”). However, if the redactions would be so extensive as to render the affected document incomprehensible, the court may exercise its

discretion and decline to make them. See, e.g.

, In re Violation of Rule 28(d) , 635 F.3d at 1360 (noting that “[t]h e confidentiality markings in this case were so extensive that the non

confidential version of the brief is virtually incomprehensible” and that such “an improper casual approach to confidentiality markings . . . ignores the requirements of public access[ and] deprives the public of necessary information”); Allied Tech. Grp., Inc. v. United States , 94 Fed. Cl. 16, 23 n.1 (2010) (“[I]f the court were to accept all of [the] proposed redactions, it would . . . result[] in a nearly incomprehensible public docum ent.”); MVM, Inc. v. United States , 46 Fed. Cl. 137, 137 n.* (1999) (“If the language were redacted, the opinion would be incomprehensible.”).

In this case, the parties agree that the information in the third column, captioned “Amount

Invoiced to Date o r Final/Initial Contract Price,” of the table appearing on pages 6 and 7 of the version of the opinion filed under seal should be redacted. September 26, 2017 Joint Status Report, Proposed Redactions 6

- 7. However, plaintiff also seeks to redact the infor mation under the first, second, and fourth columns, respectively captioned “Contract Number,” “Date &- 9

- experience, “ 100% self

- performance of [the] PBWS .” Id. at 1279. SSI also provided a corporate experience matrix that identified SS I’s experience in the PBWS areas of (1) Program Management, (2) Processing, (3) Adjudication, and (4) Foreign Ownership, Control, or Influence (“FOCI” ). Id.

TUVA is a “ privately held, wholly owned subsidiary of AKIMA, LLC, 6 which is a wholly owned subsid iary of NANA Development Corporation. ” Id. at 1463

- 64 (footnote added)

. AKIMA, LLC has twenty

- eight subsidiaries, id. at 3967, including SAVA Workforce Solutions, LLC (“SAVA”)

, id. at 1464, AKIMA Security

, id. at 1862

- 63, and AKIMA Infrastructure, LLC

, i d. I n its FPR, TUVA proposed to satisfy the contract’s requirements by joining forces with

SAVA and another company, Inquiries, Inc. (“Inquiries”). Id. at 1463. TUVA’s total proposed price was $24,997,054, which cover ed both the base and option periods. Id. at 1 468

. Included in TUVA’s contract price are TUVA’s indirect and direct labor rates , which are described at length

in its FPR

. See id. at 1675

- 88 , 1955

- 56.

Lastly, TUVA’s FPR provides information regarding its and its affiliates’ previous

corpor ate experience. For example, i n Attachment L

- 9 to its FPR, TUVA identified seven prior contracts as evidence of its relevant corporate experience:

Client,” and “Description.” September 26, 2017 Joint Status Report 1. According to plaintiff, the information is proprietary and if known to plaintiff’s competitors, “could give [them] insight into the specific references on which [plaintiff] would rely for this type of contract.” Id. In addition, plaintiff claims that because its “past performance and corporate experience [were] not at issue in this pr otest,” the public does not need to have the information in order to understand the court’s reasoning. Id. Defendant counters that the information should not be redacted because it “is publicly available and has no bearing on the competitive process.” I d. at 2.

Plaintiff’s argument is not persuasive. First, constraints that apply to federal procuring agencies and their officials do not apply to this court. See Torres Advanced Enter. Sols., LLC v. United States

, No. 17

- 868C, 2017 WL 4366238 , at *5 (Oct. 2, 2017) . Second, allegations of competitive harm must be supported if they are to rebut the presumption of public access to court

records. See AmerGen Energy , 115 Fed. Cl. at 140

- 41 ( noting that because broad, nebulous, or conclusory allegations of com petitive harm are insufficient to establish good cause for the issuance of a protective order under Rule 26(c)(1) of the Rules of the United States Court of Federal Claims, “such allegations are insufficient to meet the more stringent compelling reasons

st andard required to rebut the presumption of public access with respect to judicial records”). Here, not only does plaintiff fail to specify what actions a competitor would take if it had access to information related to plaintiff’s past performance, but p laintiff also fails to specify what harm

would result from those actions. In sum, plaintiff h as not advanced a compelling justification for

the court to redact the information described above f rom its September 12, 2017 Opinion and

Order.

6 AKIMA is ref erred to in the administrative record as both “AKIMA” and “Akima.”- 10

- Contract

Number Date & Client Amount Invoiced

to Date or Final /

Initial Contract

Price Description

HSSCC G

- 08

- D

- 00009 4/22/08 Department of

Homeland Security (“DHS”) $[. . .] / $[. . .] Inquiries to provide “personnel security support services.”

DJD

- 10

- C

0014 (original)

DJD

- 16

- R

0004 (bridge) 12/28/09 Drug

Enforcement

Administration (“DEA”) $ [. . .] 7 / $ [. . .] SAVA to provide “qualified Project Management, Administrative, and Data Analysis Support services with the prerequisite technical and administrative knowledge, skills,

and abilities to enhance the operational performance of the [DEA’s Tactical Di version Squads].”

JFBI

- 10

- 035 5/5/10

Federal Bureau

of Investigation (“FBI”) $ [. . .] / $ [. . .] TUVA and SAVA to provide subject matter expert services “such as investigations, adjudications, data analysis, program management, training, identifying th reats to the U.S. such as foreign investments, insider threats, etc.”

DTFAWA

- 14

- C

- 00023 6/23/14

Federal

Aviation

Administration (“FAA”) $[. . .] / $[. . .] TUVA to provide “direct support to FAA . . . in carrying out many [human resources (“HR”)] program services such as compensation and benefits, work

- life, talent development, business management, performance management, labor and employee relations, and regional HR

services across the U.S.” HQ0034

- 14

- C

0059 9/9/14 Department of

Defense (“DOD”) $[. . . ] / $[. . .] Inquiries to provide DOD with “Adjudications and Administrative Support Services.”

HC1028

- 14

- P

0271 (prime contract) 9/12/14

United States Army Office of

the Provost $[. . . ] / $[. . .] SAVA to “track and analyze metrics, as well as implement [knowledge management] to ensure [their customers] capture, develop,

7 [. . .].- 11

- PO

I321000013 (contract with Prime) Marshal

General (“Army OPMG”) share, and effectively use organizational knowledge. ”

Task Order QOU

OHRT201400 003 against

GSA Schedule

Contract GS

07F

- 0451Y 9/16/14

United States Capitol Police (“USCP”) $[. . .] / $[. . .] SAVA to provide a Project Manager with “funding for five Investigator/Adjudicators to support

the USCP” Office of Human

Resources.

See i d. at 1689

- 94 (5/5/10 c ontract), 1694

- 96 (6/23/14 c ontract )

, 1696

- 98 (9/16/14 c ontract),

1698

- 1701 (9/12/14 c ontract), 1701

- 03 (12/28/09 c ontract)

, 1703

- 05 (9/9/14 c ontract), and 1705

- 08 (4/22/08 c ontract) (footnote added)

. In addition, i n Attachment L

- 10 to its FPR, TUVA provided a corporate e xperience matrix that identified which of the various tasks identified in the

four PBWS areas

. Id. at 1709

- 11.

On August 30, 2016, following SSI’s and TUVA’s submission of their FP R s, the IPT once again conducted a technical evaluation of both offeror s’ cost proposals. See id. at 2136

- 37 ( evaluation of SSI’s proposal), 2138

- 39 (evaluation of TUVA’s proposal). On September 8, 2016, the IPT issued its final evaluation report. See id. at 2140

- 210

.

C . Initial Award and First Bid Protest

On September 28, 2016, the SSA issued her Source Selection Document (“SSD”)

. S ee id. at 2261

- 70. Two days later, o n September 30, 2016, the NNSA notified SSI that the contract

had been awarded to TUVA. Id. at 2274

. In its notification letter to SSI, the NNSA state d that TUVA was selected because its proposal provided the best value to the government in terms of technical merit and price, consider ing the RFP’s evaluation criteria. Id. The NNSA also provided SSI with a table summariz ing the NNSA’s assessment of the two offerors ’ p roposals

. 8

Criterion 1 ( Technical Approach ) Criterion 2 ( Staffing Plan

& Program

Manager Qualifications ) Criterion 3 ( Corporate Experience ) Criterion 4 ( Past

Performance ) Criterion 5 ( Cost )

* in millions

of dollars

TUVA Excellent Excel lent Good Very Good $24.99

SSI Good Satisfactory Good Very Good $28.67

Id. at 2275. Further, the NNSA attached to its notification letter a copy of its technical evaluation of SSI’s proposal that described all of the strengths and weaknesses that were

8 The table is not reproduced in its exact format.- 12

- a ssessed. Id. at 2277

- 301. Of particular note is the significant weakness that the NNSA assessed for SSI’s staffing plan:

In SSI’s FPR they described job duties for Adjudication Major Services (PBWS 4.3.1) for the Personnel Security Specialist 1 that

does not include the [. . .] . This is not efficient and does not lend to proficient [. . .] . . . . [SSI’s] approach does not provide the appropriate skill mix that is likely to result in efficient and successful contract performance related to all PBWS f unctions. This is a flaw in the proposal that appreciably increases the risk of unsuccessful contract performance.

Id. at 2288

- 89; accord id. at 2194

- 95 (containing the IPT’s September 8, 2016 final evaluation report)

. In addition, the NNSA informed SSI that it was entitled to a debriefing, which meant that SSI was permitted to submit written questions to the NNSA. Id. In one of its written questions, SSI sought more information regarding the NNSA’s assignment of that significant

weakness: “ In Criteri on 2

– Staffing Plan & PM Quals, can the Government explain why the Weakness discussed was considered significant? ” Id. at 2306. In a response dated October 6, 2016, id. at 2302, the NNSA stated: “ The Government determined the proposed job duties/skill mix in the Staffing Plan were not likely to result in efficient and successful performance of the PBWS, and it is a flaw in the proposal that appreciably increases the risk of unsuccessful contract performance ,” id. at 2306.

Less than one week later, on October 11, 2016, SSI filed a bid protest with the United States Government Accountability Office (“ GAO ”) challenging the NNSA’s award of the

contract to TUVA. Id. at 2310

- 70. During the proceedings, the NNSA produced certain documents, including copies of TUVA’s proposal and the NNSA’s evaluation of TUVA’s and SSI’s proposals. Id. at 2456

- 64. In response, SSI filed a supplemental bid protest with the GA O on November 4, 2016

. Id. at 2465

- 75. On November 10, 2016, the NNSA filed a Notice of

Corrective Action and Request to Dismiss the Protest (“Notice of Corrective Action”)

, wherein it indicated that it would reevaluate the acceptable offerors’ proposals

, review the acceptable offerors’ size qualifications , and prepare a new selection decision

. Id. at 2491 ; see also id. at 2534 (indicating that only the proposals evaluated by SSI and TUVA were deemed acceptable). Then, on November 15, 2016, the NNSA clarified the scope of the corrective action: “ Should the agency identify new weaknesses and/or defici en cies in its reevaluation of proposals that it would have been obligated to raise in the previous round of discussions, the agency will give acceptable offerors an opportunity to address the new weaknesses and/or deficiencies in

additional discussions.” Id. at 2524. The following day, the GAO dismissed SSI’s bid protest, finding that the NNSA’s promise to reevaluate the offerors’ proposals rendered SSI’s protest

academic. I d. at 2500.

D . Reevaluation and Second Bid Protest

On February 22, 2017, the NNSA’s IPT issued its Corrective Action Final Evaluation Report (“Revised IPT Report”). See i d

. at 2521

- 610. In its Revised IPT Report, the NNSA used “the methodology described in the SSP to assess each proposal’s merit in relation to the- 13

- evaluation crit eria stated in the RFP. ” Id. at 2527. Specifically, the NNSA compared the offerors’ past experiences with the list of tasks required in the PBWS. See id. at 2537

- 569 (evaluation of TUVA’s FPR), 2575

- 604 (evaluation of SSI’s FPR). With respect to Criter ion 1 ( Technical Approach ), Criterion 2 ( Staffing Plan and Program Manager Qualifications ) , and Criterion 3 ( Corporate Experience )

, the following adjectival rating definitions were applied :

R ating Definition

Excellent The Proposal addresses the requirem ents in an exceptional manner normally evidenced by at least one significant strength or a combination of strengths and no weaknesses and a very high probability of successful contract performance with a low degree of risk.

Good The Proposal addresses the requirements in a comprehensive manner normally evidenced by strengths that outweigh any weaknesses and a high probability of successful contract performance with a low degree of risk. Satisfactory The Proposal addresses the requirements in an acceptable manner normally evidenced by strengths and weaknesses that are generally offsetting and a reasonable probability of successful contract performance with a moderate degree of risk.

Less Than Satisfactory The Proposal addresses the requirements in a less t han acceptable manner with weaknesses that outweigh strengths, if any; and a low probability of successful contract performance with a moderate to high degree of risk.

Id. at 2529. With respect to Criterion 4 (Past Performance), different adjectival rat ing definitions

were used:

Rating Definition Exceptional Performance meets contractual requirements and exceeds many requirements to the government’s benefit. Very Good Performance meets contractual requirements and exceeds some to the government’s ben efit. Satisfactory Performance meets contractual requirements. Marginal Performance does not meet some contractual requirements. The element being assessed reflects a serious problem for which the contractor has not yet implemented satisfactory correcti ve actions. Unsatisfactory Performance does not meet contractual requirements and recovery is not likely in a timely manner. Contractor’s corrective actions to date are

ineffective.

Neutral The Vendor lacks a record of relevant or available past perform ance or for whom information on past performance history is not available. There is no expectation of either successful or unsuccessful performance based on the Vendor’s past record.

Id. Lastly, the NNSA performed a cost realism analysis of both propos als. See id. at 2570

- 74 (analysis of TUVA’s FPR), 2605

- 06 (analysis of SSI’s FPR).- 14

- The next day, February 23, 2017, the SSA issued her Revised Source Selection Decision (“Revised SSD”)

. I d. at 2611

- 19 . Significantly, the SSA concluded that there was no evidence of underbidding in TUVA’s cost proposal. Id. at 2618. That same day, the NNSA again notified

SSI that the contract had been awarded to TUVA and again provided SSI with a table summarizing its assessment of the two offerors ’ proposals

. 9 I d. at 2620

- 52.

Criterion 1 ( Technical Approach ) Criterion 2 ( Staffing Plan

& Program

Manager Qualifications ) Criterion 3 ( Corporate Experience ) Criterion 4 ( Past

Performance ) Criterion 5 ( Cost )

* in millions

of dollars

TUVA Excellent Excellent Good Very G ood $24.99

SSI Good Satisfactory Excellent Very Good $28.67

Id. at 2621. According to the NNSA, “[t]he rationale for the award [ to TUVA was that] TUVA’s proposal represents the best value to the Government in terms of technical merit and price

consider ing the evaluation criteria in the solicitation.” Id. Both parties then received , as they had before, explanatory debriefing letters. See id. at 2690

- 94 (TUVA’s letter), 2695

- 98 (SSI’s letter).

On March 7, 2017, SSI filed its second bid protest with t he GAO. Id. at 2699

- 779

. According to SSI, the NNSA (1) failed to advise SSI of a significant weakness during discussions, (2) unreasonably and unequally evaluated the proposals pursuant to Criterion 2, (3)

misevaluated TUVA’s proposal pursuant to Criter ion 3 and Criterion 4 , (4) failed to perform a proper cost realism analysis, (5) misevaluated TUVA’s proposal pursuant to C riteri on 1 and

Criterion 2, and (6) unreasonably assigned two weaknesses to SSI ’s proposal pursuant to
Criterion 1. Id. at 2705

- 24. On April 4 , 2017, the NNSA issued its Contracting Officer’s Statement of Facts and Agency Memorandum of Law. I d. at 2838

- 79.

Approximately two months later, o n June 15, 2017, the GAO denied SSI’s protest. See

id. at 2953

- 67. First, the GAO concluded that two of the protest grounds raised by SSI were untimely. Id. at 2958

- 59. They were (1) SSI’s claim that “three of the contract references provided for two of TUVA’s subcontractors (contracts HC1028

- 14

- P

- 0271 and DJD

- 10

- C

- 0014 for SAVA, and contract HSSCCG

- 08

- D

- 00009 for Inquiries) are not relevant to the work required pursuant to the RFP given the lack of similarity and complexity to the work here,” and (2) SSI’s claim that the NNSA failed to notify it during discussions of the NNSA ’s assessment of

a significant weakness

— that SSI failed to state that its Personnel Security Specialist ( “ PSS ” ) I personnel would [. . .]

. Id.

Second, the GAO concluded that SSI’s claim that the agency unreasonably evaluated the realism of TUVA’s proposed costs lacked m erit. Id. at 2959

- 60. Rather, the GAO found that (1)

the NNSA was not required to perform an in

- depth cost analysis, or to verify each item in assessing cost realism ; (2) the NNSA was not required to achieve scientific certainty in its cost

9 The table is not reproduced in its exact format.- 15

- realism analy sis ; (3) the NNSA’s cost realism analysis was reasonable because it used a variety

of methods to evaluate the direct rates, to include a discrete analysis of labor rates by category ; (4) the NNSA’s determination that TUVA’s “allocation of labor categories and skill mix for the

tasks [was] sufficient and realistic to accomplish the PBWS” was proper ; and (5) the NNSA’s evaluation of TUVA’s indirect rates, in light of the information provided by TUVA and the NNSA’s comparison of “TUVA’s proposed indirect rates with its DCAA

- provided Forward Budget Submission” was appropriate. Id. at 2960

- 61

.

Third, with respect to SSI’s argument that the NNSA’s discussions with SSI and TUVA were not equal, the GAO noted that while an agency must treat offerors equally, in that “offerors must be afforded equal opportunities to address the portions of their proposals that require

r evision, explanation, or amplification,” the actual discussions need not be “identical.” Id. at
2962. The GAO then concluded that SSI’s complaint in this respect was based on a comparison of “two very different discussion scenarios,” and that overall, the NNSA’s discussion s with SSI and TUVA were “reasonable and equal, particularly when the content of the discussions, not just the length, are taken into account.” Id. at 2963.

Fourth, the GAO concluded that SSI’s claim that the NNSA improperly assigned SSI two weaknesses for the same issue relating to its technical approach

— “that [SSI’s] proposal regarding risk mitigation for the OPFC did not provi de an effective approach to avoid or

minimize risks ”

— was without merit. Id. Noting that its review was limited to determinin g whether the NNSA’s “evaluation conclusions were reasonable and consistent with the terms of the solicitation and applicable proc urement laws and regulations,” the GAO concluded that the two weaknesses were appropriately assigned because “each weakness align [ ed] with a specific portion of the PBWS.” Id. at 2963

- 64.

Fifth, the GAO concluded that SSI’s claim that the NNSA improperly gave TUVA’s staffing plan a rating of “ E xcellent” was baseless

. Id. at 2964

- 65

. According to the GAO, (1)

the NNSA’s findings with respect to TUVA’s plan and its proposed PM were amply supported by the record, and (2) the NNSA ’s assignment of a signific ant weakness only to SSI ’s proposal when TUVA’s proposal had the same problem did not prejudice SSI because the SSA did not rely on this distinction in making her best

- value decision. Id.

Lastly, with respect to SSI’s claim that the NNSA’s assignment of the rating of “ G ood”

for TUVA’ s corporate experience and “ V ery G ood” for TUVA’s past performance was not merited, the GAO concluded that (1) the first rating was warranted because “[a]n agency properly may attribute the experience or past performance of a parent or affiliated company ,” and because “the solicitation specifically allowed for the consideration of corporate experience and past performance of subcontractors

, ” id. at 2965

- 66 ; and (2) the second rating was warranted because “the solicitation speci fically stated that the agency would consider the offeror’s (or team member’s or subcontractor’s) experience as it related to performing the portions of the PBWS that it was proposed to perform,” and because the solicitation also permitted consideration of the past performance of team members and subcontractors

, i d. at 29 6 6.- 16

- E

. The Instant Protest

Five days after the GAO denied its protest, SSI filed the instant protest. SSI sets forth three claims for relief in its complaint. First, SSI claims that t he NNSA failed to advise it of a significant weakness during discussions. Compl. ¶¶ 44

- 52. According to SSI, the NNSA concluded that SSI’s proposal contained a significant weakness pursuant to Criterion 2. Id. ¶ 46.

SSI further avers that the NNSA then failed to notify SSI of that weakness during the discussion period: “NNSA failed to follow the requirements of FAR 15.306(d) that a contracting officer must indicate to or discuss ‘significant weaknesses’ with each offeror in the competitive range and, a s a result, the discussion s that NNSA held with SSI were not meaningful.” Id. ¶ 49. SSI contends that this significant weakness was material to NNSA’s evaluation of SSI’s proposal and

ultimate decision to award the contract to TUVA. Id. ¶¶ 48, 50.

Sec ond, SSI claims that the NNSA’s evaluation of TUVA under the c orporate e xperience

and p ast p erformance c riteria was arbitrary and capricious. Id. ¶¶ 53

- 63. According to SSI, the NNSA unreasonably permitted TUVA to rely on experience references provided b y TUVA and

its subcontractors

. Id. ¶¶ 54

- 59. Specifically, SSI claims that (1) the NNSA unreasonably permitted TUVA to rely on subcontractor SAVA’s experience for an area of the contract that does not involve SAVA, and that if SAVA’s e xperience for PBWS Area 5.0 had been properly

excluded , TUVA would have been rated “Satisfactory” rather than “Good” for Criterion 3

, id. ¶¶

5 4

- 56 ; (2) the NNSA unreasonably found TUVA’s sole experience reference and two of

subcontractor SAVA’s experience references to be re levant when they related to contracts that

were not similar in size to the contract at issue

, id. ¶ 57 ; and (3) the NNSA unreasonably found TUVA’s sole experience reference, one of subcontractor SAVA’s experience references, and one of subcontractor Inquir ies’s experience references to be relevant when none was performed as a federal prime contractor, id. ¶ 58 . Lastly, SSI contends in its second count that the NNSA’s

evaluation of TUVA under the p ast p erformance criterion was unreasonable because the NNSA considered experience that was not relevant, as relevance was defined in the RFP. Id. ¶ 61.

Third, SSI claims that the NNSA failed to properly conduct a cost realism evaluation. Id. ¶¶ 65

- 70. According to SSI, in evaluating TUVA’s proposal for cost realism, a review required by the RFP, the NNSA failed to recognize TUVA’s unrealistically low direct rates and failed to adjust TUVA ’ s probable cost on this basis. I d. ¶ 66. In addition, SSI contends that the NNSA failed to recognize that TUVA’s indire ct rates were too low to provide the employee benefits TUVA promised in its proposal and failed to adjust TUVA’s probable cost accordingly. Id. ¶ 67.

SSI also contends that the NNSA (1) failed to consider whether TUVA’s technical approach was

consistent with its proposed costs

— according to SSI, TUVA’s cost proposal was inconsistent with incumbent retention; and (2) misevaluated TUVA’s staffing plan, ignored an inconsistency between TUVA’s cost proposal and its technical approach, and erroneously concluded that TUVA would be capable of meeting the RFP’s requirements. Id. ¶ 68. In SSI’s view, the NNSA’s cost realism analysis was insufficiently documented and t here is no evidence in the contemporaneous record of a reasonable cost realism evaluation. Id. ¶ 69.

In its request for relief, SSI claims it is entitled to a permanent injunction that requires the NNSA to: “(i) refrain from proceeding with TUVA’s contract; (ii) allow SSI to submit a new FPR addressing Criterion 2; (iii) reevaluate TUVA ’ s p roposal under the c orporate e xperience- 17

- and p ast p erformance criteria; and (iv) conduct a proper cost realism analysis.” Compl. 12.

In light of the NNSA’s agreement to stay the performance of TUVA’s contract for ninety days to allow for the resolution of this protest, id. ¶ 39, the court entered a scheduling order providing for the briefing of cross

- motions for judgment on the administrative record. Briefing has concluded, and the court heard argument on September 12, 2017

.

II. STANDARD OF REVIEW

Wh en entertaining a motion for judgment on the administrative record in a bid protest, the United States Court of Federal Claims (“Court of Federal Claims”) reviews the challenged agency action pursuant to the standards set forth in 5 U.S.C. § 706. 28 U.S.C . § 1491(b)(4) (2012). Although 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 agency action if it is ‘arbitrary, capricious, an a buse of discretion, or otherwise not in accordance

with law.’ ” Banknote Corp. of Am. v. United States , 365 F.3d 1345, 1350 (Fed. Cir. 2004). Under this standard, the court “may set aside a procurement action if ‘(1) the procurement

official’s decision la cked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.’” Centech Grp., Inc. v. United States , 554 F.3d 1029, 1037 (Fed. Cir. 2009) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States , 238 F.3d 1324, 1332 (Fed. Cir. 2001)).

“ [ C ] ontracting officers are ‘entitled to exercise discretion upon a broad range of issues confronting them’ in the procurement process.” Impresa , 238 F.3d at 1332

- 33 (quoting

Latecoere Int ’ l, Inc. v. U.S. Dep ’ t of Navy

, 19 F.3d 1342, 1356 (11th Cir. 1994)). Thus, the court’s review of a procuring agency’s decision is “highly deferential.” Advanced Data Concepts, Inc. v. United States , 216 F.3d 1054, 1058 (Fed. Cir. 2000); see also Citizens to Preserve Overton Park, Inc . v. Volpe , 401 U.S. 402, 416 (1971) (“The court is not empowered to substitute its judgment for that of the agency.”). Indeed, “technical ratings . . . involve discretionary determinations of procurement officials that a court will not second guess.” E. W.

Bliss Co. v. United States , 77 F.3d 445, 449 (Fed. Cir. 1996); accord Isometrics v. United States

, 5 Cl. Ct. 420, 423 (1984) (“[W]here an agency’s decisions are highly technical in nature, . . . judicial restraint is appropriate and proper.”). Furtherm ore, when engaging in a negotiated procurement, a “ protester ’ s burden of proving that the award was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law is greater than in other types of bid protests.” Galen Med. Assocs., Inc. v. United States , 369 F.3d 1324, 1330 (Fed. Cir. 2004). And, when a contract is to be awarded on a “best value” basis, contracting officers have “even greater discretion than if the contract were to have been awarded on the basis of cost alone.” Id

. (citing E.W. Bliss Co

. , 77 F.3d at 449) (“Procurement officials have substantial discretion to determine which proposal represents the best value for the government.”)).

Given the highly deferential standard of review, when a protester challenges the

pr ocuring agency’s decision as lacking a rational basis, “the test for reviewing courts is to determine whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a heavy bur den of showing that the

award decision had no rational basis.” Impresa , 238 F.3d at 1332

- 33 (citation and internal- 18

- quotation marks omitted); accord Advanced Data Concepts , 216 F.3d at 1058 (“The arbitrary and capricious standard . . . requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors.”). When a protester claims that the procuring agency’s decision violates a statute, regulation, or procedure, it must show that the violation was

“clear and prejudicial.” Impresa , 238 F.3d at 1333 (internal quotation marks omitted).

In addition to showing “a significant error in the procurement process,” a protester must show “that the error prejudiced it.” Data Gen. Corp. v. Johnson , 78 F.3d 1556, 15 62 (Fed. Cir. 1996); see also Bannum , Inc. v. United States , 404 F.3d 1346, 1351 (Fed. Cir. 2005) (holding that if the procuring agency’s decision lacked a rational basis or was made in violation of the applicable statutes, regulations, or procedures, the court must then “determine, as a factual matter, if the bid protester was prejudiced by that conduct”) ; PGBA, LLC v. United States , 60 Fed. Cl. 196, 203 (2004) (“To prevail in a bid protest, a disappointed offeror must show both significant error in the pr ocurement process and prejudice to its posture in the process.”)

. “To establish prejudice . . ., a protester must show that there was a ‘substantial chance’ it would have received the contract award absent the alleged error.” Banknote , 365 F.3d at 135 1 ( quoting Emery Worldwide Airlines, Inc. v. United States , 264 F.3d 1071, 1086 (Fed. Cir. 2001)); see also Data Gen. , 78 F.3d at 1562 (“[T]o establish pr ejudice, a protester must show that, had it not been for the alleged error in the procurement process, th ere was a reasonable likelihood that the protester would have been awarded the contract.”); Statistica, Inc. v. Christopher , 102 F.3d 1577, 1581 (Fed. Cir. 1996) (“To establish competitive prejudice, a protester must demonstrate that but for the alleged er ror, there was a ‘substantial chance that [it] would receive an award

— that it was within the zone of active consideration.’” (quoting CACI, Inc.

- Fed. v. United States , 719 F.2d 1567, 1574

- 75 (Fed. Cir. 1983))) ; accord Overs tr eet Elec. Co. v. United States

, 47 Fed. Cl. 728,

742

- 43 (2000).

III. ANALYSIS

A . Standard for Interpreting a Solicitation

As an initial matter, the court must define the NNSA’s obligation when reviewing the various proposals it received in response to its solicitation. The court i nterprets a solicitation in

the same manner as it would a contract. See Banknote , 365 F.3d at 1353 n.4 (citing Grumman Data Sys. Corp. v. Dalton , 88 F.3d 990, 997

- 98 (Fed. Cir. 1996)). Thus, as with the interpretation of a contract, the “[i]nterpretation of the solicitation is a question of law . . . .” Id.

at 1353. The court begins by examining the solicitation’s plain language, and in doing so considers “the solicitation as a whole, interpreting it in a manner that harmonizes and gives

reasonable mean ing to all of its provisions.” Id. “If the provisions of the solicitation are clear and unambiguous, they must be given their plain and ordinary meaning; [the court] may not resort to extrinsic evidence to interpret them.” Id.

However, when the languag e of the solicitation “is susceptible to more than one reasonable interpretation,” the solicitation is ambiguous. Id. If the solicitation contains an ambiguity, then the court must determine whether that ambiguity is patent. Grumman Data Sys.

, 88 F.3d a t 997. “A patent ambiguity is present when the contract contains facially inconsistent provisions that would place a reasonable contractor on notice and prompt the contractor to rectify- 19

- the inconsistency by inquiring of the appropriate parties.” Stratos Mobile Networks USA, LLC

v. United States , 213 F.3d 1375, 1381 (Fed. Cir. 2000). Patent ambiguities are “‘obvious, gross, [or] glaring.’” Grumman Data Sys. , 88 F.3d at 997 (quoting H & M Moving, Inc. v. United

States , 499 F.2d 660, 671 (Ct. Cl. 1974)). If a solicitation contains a patent ambiguity, the
protester ’ s interpretation of the solicitation will fail unless it previously sought clarification from the procuring agency regarding the ambiguous language. Id. at 997

- 98; accord Stratos Mobile

Networks USA , 213 F.3d at 1381. If the ambiguity is not patent and the protester demonstrates that it relied upon the ambiguity, then the ambiguity will be construed against the drafter of the

solicitation

— the procuring agency. See NVT Techs., Inc. v. United Sta tes , 370 F.3d 1153, 1162 (Fed. Cir. 2004).

B

. SSI Cannot Prevail on the Merits of Its Protest

1. SSI Waived Its Right to Object to the NNSA ’s Failure to Disclose a Significant Weakness During Discussions

SSI’s first claim concerns the NNSA’s failure to disclose the significant weakness pertaining to the job duties/skill mix described in the staffing plan during discussions. According to SSI, although a description of the duties of the PSS I position was present in its initial proposal, when the NNSA assigned this particular significant weakness , it only referenced

SSI’s FPR . Pl.’s Mot. 11 (citing AR 2194

- 95). SSI claims that the only change it made to its description of the duties of the PSS I position in its FPR was to add that “[t]he Personnel

Sec urity Specialists are responsible for all tasks in PBWS 4.3.1 and 4.3.2.” Id. (citing AR 1235).

SSI argues, therefore, that the NNSA’s failure to reopen discussions to advise SSI of its assignment of a significant weakness so that SSI would have an oppor tunity to amend its FPR

was a violation of the FAR. Id. at 13. SSI concludes: “Thus, NNSA’s evaluation of SSI under Criterion 2 was flawed, and the resulting award decision based on that evaluation was unreasonable, arbitrary, and capricious.” Id.

D efendant contends that SSI waived its argument that the NNSA erred by failing to engage in discussion s with SSI regarding a significant weakness in its staffing plan. Def.’s

Cross

- Mot. & Resp. 14

- 18. Relying on Blue & Gold Fleet, L.P. v. United States , 4 92 F.3d 1308 (Fed. Cir. 2007), a decision of the United States Court of Appeals for the Federal Circuit (“Federal Circuit”), defendant argues that SSI forfeited its right to challenge the NNSA ’s

decision in this regard because SSI did not raise its objecti on after the NNSA’s November 10,

2016 notice of its intent to take corrective action and prior to the NNSA’s award of the contract

to TUVA

. Id. According to defendant , pursuant to the Blue & Gold Fleet waiver rule, bidders are encouraged “to raise issues early on so the agency can expeditiously address and resolve them in connection with the procurement, rather than through costly, after

- the

- fact litigation.”

Id. at 14. In addition, defendant avers that although the waiver rule was originally interprete d as applying solely to solicitations, the Federal Circuit expanded application of the rule to cover “all

pre

- award situations.” Id. at 15 (quoting Comint Sys. Corp. & EyeIT.com, Inc., Joint Venture v. United States , 700 F.3d 1377, 1382 (Fed. Cir. 2012) )

. Defendant concludes: “Thus, to the extent that a bidder perceives any defect, ambiguity, or error regarding the scope of the proposed corrective action, then it must raise that concern before the agency engages in that action should it wish to preserve its objection.” Id.- 20

- SSI disputes defendant ’s interpretation of the Blue & Gold Fleet waiver rule. Pl.’s Reply & Resp. 2

- 5. According to SSI, the waiver only applies to challenges alleging errors in the solicitation, not to challenges alleging errors i n the evaluation process. Id. at 3

- 4. Quoting Vanguard Recovery Assistance v. United States , 99 Fed. Cl. 81, 92 (2011), SSI argues that “had [the agency] at any point in taking corrective action modified its solicitation and called for new proposals, the n the somewhat extended doctrine of timeliness and waiver represented by the progeny of Blue & Gold Fleet in this court could well have been triggered.” Id. (internal quotation marks omitted). In addition, SSI contends that it would have been premature f or it to protest immediately following NNSA’s notice that it intended to take corrective action because “the determination during the reevaluation that this aspect of SSI’s proposal was a significant weakness had not yet been made.” Id. at 3 n.2.

Defend ant counters that SSI’s relianc e on Vanguard Recovery Assistance is misplaced. Def.’s Reply 4

- 5. According to defendant , in Vanguard Recovery Assistance , the court held that

the Blue & Gold Fleet waiver rule was inapplicable to the protest e r’s challenge because it related to “perceived evaluation defects in connection with the agency’s corrective action after a GAO protest,” whereas in the instant case, SSI ’s challenge relate s to a procedural error

— SSI’s claim

that the NNSA fail ed to follow the requiremen ts of FAR 15.306(d) by precluding SSI from submitting a revised FPR to address the significant weakness in its staffing plan

— yet SSI failed to raise the issue prior to the NNSA’s award of the contract to TUVA

. Id. In addition, defendant challenges SSI’s claim that it would have been premature for SSI to challenge the agency’s

corrective action because the NNSA had not yet determined whether to assign SSI’s proposal a significant weakness. Id. at 5. Defendant claims that SSI was aware of the agency’s ana lysis in this respect by the time it filed its first protest and certainly was aware by the time the NNSA

took corrective action. Id.

In the instant case, it is undisputed that , pursuant to the FAR, “[e] xchanges with offerors

after establishment of the c ompetitive range ” are intended to be meaningful conversations between the parties:

Negotiations are exchanges, in either a competitive or sole source environment, between the Government and offerors, that are undertaken with the intent of allowing the off eror to revise its proposal. These negotiations may include bargaining. Bargaining includes persuasion, alteration of assumptions and positions, give

and

- take, and may apply to price, schedule, technical requirements, type of contract, or other terms of a proposed contract. When negotiations are conducted in a competitive acquisition, they take place after establishment of the competitive range and are called

discussions.

FAR 15.306(d)

. Significantly, “ the contracting officer must

. . . indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. ” FAR 15.306(d) (3)

. It is further undisputed that the NNSA failed to conduct such discussions with SSI prior to the NNSA’s initial award of the contract to TUVA

. See Def.’s Cross

- Mot. & Resp. 15

-- 21

- 16 (“[W]e recognize that NNSA did not conduct such discussions regarding a significant weakness in [SSI’s] sta ffing plan such that [SSI] could have addressed the significant weakness in its [FPR].”) ; Def.’s Reply 2 (“In our cross

- motion, we acknowledged that NNSA did not re

open discussions with [SSI] to address a significant weakness in its Staffing Plan (Criteri on 2) that the agency identified in its evaluation of [SSI’s FPR] . . . . Thus, [SSI] did not have an opportunity to address the significant weakness before the agency completed its initial evaluation of proposals.”). Nevertheless, pursuant to the Blue & Gold Fleet waiver rule, SSI had an obligation to object to this error in a timely fashion.

In Blue & Gold Fleet , the Federal Circuit affirmed the conclusion of the Court of Federal Claims that the protest e r ’ s challenge to the terms of the solicitation, which was not raised until after the deadline for the submission of proposals, was untimely. 492 F.3d at 1312

- 16. In doing

so , the Federal Circuit recognized, for the first time, a waiver rule for bid protests :

[A] party who has the opportunity to obje ct to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection subsequently in a bid protest action in the Court

of Federal Claims.

Id. at 1313; accord id. at 1315; Bannum, Inc. v. United States , 779 F.3d 1376, 1380 (Fed. Cir. 2015). It found support for such a waiver rule in (1) the statutory mandate of 28 U.S.C. § 1491(b)(3) that courts are to “give due regard to

. . . the need for expedit ious resolution of” bid protests, (2) the fairness rationale underlying the doctrine of patent ambiguity, (3) the GAO ’ s rule that challenges to the terms of a solicitation must be brought prior to the deadline for submitting bids or proposals, and (4) the analogous doctrines of laches and equitable estoppel in the patent context. Blue & Gold Fleet , 492 F.3d at 1313

- 15. Of these rationales for the recognition of a waiver rule, the Federal Circuit placed particular emphasis on fairness and the expeditious r esolution of bid protests:

In the absence of a waiver rule, a contractor with knowledge of a solicitation defect could choose to stay silent when submitting its first proposal. If its first proposal loses to another bidder, the

contractor could then come forward with the defect to restart the bidding process, perhaps with increased knowledge of its competitors. A waiver rule thus prevents contractors from taking advantage of the government and other bidders, and avoids costly

after

- the

- fact litigation.

Id. at 1314; see also id. at 1315 (“[T]he statutory mandate of [28 U.S.C.] § 1491(b)(3) for courts to ‘give due regard to

. . . the need for expeditious resolution of the action’ and the rationale underlying the patent ambiguity doctrine favor recognition of a waiver rule.”); DGR Assocs.,

Inc. v. United States , 690 F.3d 1335, 1343 (Fed. Cir. 2012) (“[I]f there is a patent, i.e. , clear, error in a solicitation known to the bidder, the bidder cannot lie in the weeds hoping to get the contract, and then if it does not, blindside the agency about the error in a court suit.”).- 22

- The Federal Circuit revisited the Blue & Gold Fleet waiver rule in C omint Systems

. In that case, the procuring agency amended the solicitation four months after the proposal

submission deadline. 700 F.3d at 1380. More than two months later, it awarded three contracts pursuant to the amended solicitation. Id. The protest e r objected to the terms of the amendment, but did not lodge a protest until after the procuring agency awarded the contracts. Id. at 1380

- 81. Specifically, the protest e r lodged a protest with the GAO almost two weeks after the contracts

were awarded

. Id. at 1380. T hen, two months later

— after the GAO denied its protest

— the
protest e r filed a complaint in the Court of Federal Claims. Id.

Upo n review, the Federal Circuit agreed with the government that the protester failed to preserve its challenge to the terms of the solicitation amendment by not raising it prior to the

award of the contracts. Id. at 1381. Althoug h it recognized that the Blue & Gold Fleet waiver rule was not directly applicable to the circumstances before it because the solicitation was amended after the proposal submission deadline, the Federal Circuit concluded that the reasoning

of Blue & Gold F leet “applie[d] to all situations in which the protesting party had the opportunity to challenge a solicitation before the award and failed to do so.” Id. at 1382; see also id. (remarking that the policy behind the Blue & Gold Fleet waiver rule supported the extension of the rule “to all pre

- award situations”). Accordingly, it held that “assuming that there is adequate time in which to do so, a disappointed bidder must bring a challenge to a solicitation containing a patent error or ambiguity prior to the award of the contract.” Id. ; accord id. (“[W]here bringing the challenge prior to the award is not practicable, it may be brought thereafter.”); see also

Bannum , 779 F.3d at 1381 (holding that the protester had waived its “solicitation challenge by
not p roperly raising it before the close of bidding” and noting that the protester had not argued that such a challenge would be “impractical” or that its failure to raise such a challenge was excusable for good cause).

In the case at bar, the issue presented is whether SSI waived its right to object to the

NNSA ’s conceded fail ure to conduct discussions regarding the significant weakness in SSI’s

FPR. As noted above, the GAO concluded that because SSI failed to raise the issue between September 30, 2016, the date SSI learned that it was unsuccessful in its bid, and February 2 3

, 2017, the date the NNSA issued its Revised SSD, it waived the right to raise the issue before the GAO in its March 7, 2017 second bid protest. See AR 2958

- 59. The GAO focused on the f act
that SSI failed to challenge the scope of the corrective action when it was discussed by the parties in several e lectronic

- mail messages dated November 15, 2016. Id. at 2958

- 59. Specifically, the GAO note d that when TUVA asked the NNSA whether its co rrective action would include reopening discussions, the NNSA stated: “Should the agency identify new weaknesses and/or deficiencies in the reevaluation of proposals that it would have been obliged to raise in the previous round of discussions, the agency will give acceptable offerors an opportunity to address the new weaknesses and/or deficiencies in additional discussions.” Id. at 2957 (quoting the November 15, 2016 e lectronic

- mail message from DOE to GAO). In other words, the GAO did not find that the NNSA’s decision to take corrective action was a decision to start the process anew. Rather, the GAO viewed the NNSA’s decision to take corrective action

, when informed by the NNSA’s e lectronic

- mail message regarding the scope of its proposed

corrective a ction, as a continuation of the process that began on the date TUVA was first awarded the contract. Thus, i n response to SSI’s argument that “because the agency conducted a full reevaluation and made a new award decision these issues are timely filed,” th e GAO stated:- 23

- The fact that the agency made a new source selection decision (and provided the offeror with a debriefing concerning that decision) does not provide a basis for reviving otherwise untimely protest allegations concerning corrective action.

. . . Such unwarranted piecemeal presentation or development of protest issues

undermines ou r goal of affording parties the opportunity to present

their cases with the leas t disruption possible to the orderly and expeditious conduct of government procure ments. . . . Accordingly, we see no reason to provide the protester here with a “second bite at the apple,” nor condone a situation where an agency takes corrective action in response to a protest, and the protest then advances issues that could have and should have been raised in the previous protest.

Id. at 2959.

This court agrees with the GAO’s reasoning and similarly concludes that SSI forfeited its right to claim that the NNSA failed to engage in discussions with SSI regarding its assignment of

a significant weakness for SSI’s staffing plan

. Viewing the NNSA’s evaluation of SSI’s proposals as a singular process that began on March 30, 2015, the date of SSI’s initial proposal,

and continu ed until February 23, 2017, the date of the NNSA’s Revised SS D, it is clear that SSI had an obligation to raise its concern over the lack of discussions in connection with its initial GAO protest

— filed on October 11, 2016, or its supplemental GAO protest

— filed on November 4, 2016. Thus, by the time SSI filed it sec ond GAO protest, on March 7, 2017, SSI ’s protest was untimely or stale

.

In so ruling, th is court stresses its reliance on the Federal Circuit’s expanded interpretation and application of the Blue & Gold Fleet waiver rule in Comint Systems , wherein

it he ld that the prejudiced offeror was obliged to raise its objection to the amended solicitation as early as possible and at a minimum, prior to the agency’s award of the contract :

In summary, Comint had ample time and opportunity to raise its objections t o [the amendment to the solicitation prior to the award of the contract] , but chose instead to wait and see whether it would

receive an award of the contract. Having done so, Comint cannot now “come forward with [its objections] to restart the bidding

pro cess,” and get a second bite at the apple.

. . . Comint failed to preserve its objections to [the amendment] by not raising them

until after the award of the contract.

700 F.3d at 1383 (quoting Blue & Gold Fleet , 492 F.3d at 1314). Thus, th e court resp ectfully

declines to follow the reasoning in Vanguard . As noted above, in that case

— which i s not binding authority

— the court drew a distinction between perceived defects in the solicitation versus perceived defects in the evaluation process. The undersig ned does not view the reasoning

of the Federal Circuit in Comint Systems as being so limit ed . Rather, the language in Comint- 24

- Systems expresses a clear

, practical intent to expand the reach of the Blue & Gold Fleet waiver

rule to include any defects that c ould potentially be raised and resolved prior to the contract

award

, despite the fact that in Comint Systems , the defect at issue related to an amended solicitation and not a defect arising during the evaluation process. See also Jacobs Tech

. , Inc. v.

Uni ted States , 100 Fed. Cl. 179, 182 n.4 (2011) (“Although [ Blue & Gold Fleet ] deals with a
protester ’s objections to terms of the solicitation, this Court suggests that it raises legitimate concerns for prudent protester s challenging the solicitation process or the evaluation of offerors’ proposals.”).

2. The NNSA Did N ot Misevaluate TUVA’s Corporate Experience and Past Performance

SSI next claims that the NNSA’s evaluation of TUVA’s proposal on Criterion 3 (C orporate E xperience ) and Criterion 4 (P ast P erf ormance) was flawed. Pl.’s Mot. 13

- 14. In SSI’s view, the experience listed by TUVA was both irrelevant and inapplicable. Id

. SSI

advances four arguments in support of its contention that the NNSA’s evaluation of TUVA’s proposal was unreasonable, arbit rary, and capricious in that NNSA failed to utilize the requisite

evaluation criteria. Id. at 14

- 20. Conversely, defendant argues that the NNSA’s evaluation of TUVA’s corporate experience and past performance was both rational and supported by the

record , and specifically counters each of SSI’s arguments

. Def.’s Cross

- Mot. & Resp. 18

- 24.

a. TUVA May Rely on Its Subcontractor’s Experience for Areas of the Contract the

S ubcontractor Will Not Perform

SSI’s first argument is that TUVA cannot rely on the experience of one of its

subcontractors for areas of the contract that TUVA does not intend for that subcontractor to perform. Pl.’s Mot. 14

- 17. S SI concedes that the NNSA may, pursuant to Criteri on 3 and

Criterion 4 , “ ‘ consider [ the corporate experienc e or past performance] of a predecessor or affiliated company of a team member as though [ the corporate experience or past performance]

w ere the team member’s if [it] determines that the assets or resources of the predecessor or affiliated company will be brought to bear in performance under this contract. ’ ” 10 Id. at 14 (quoting AR 110). SSI further concedes that the NNSA may, pursuant to these criteria, consider the experience of an offeror’s team member as it relates to the portion of the PBWS the team

m ember will be working on. Id. SSI does not concede, however, that it was appropriate for the NNSA to evaluate SAVA’s experience and attribute it to TUVA when that experience was not relevant to SAVA’s proposed duties pursuant to TUVA’s FPR

. Id

.

Sp ecifically, SSI points to the NNSA’s consideration of SAVA’s experience pursuant to an FBI contract ( contract number J

- FBI

- 10

- 035). Id. at 14

- 17 (citing AR 1689 )

. According to SSI, the NNSA erroneously concluded that SAVA’s experience

— as a result of the FBI

contract

— was relevant to PBWS A rea 5.0, which deals with FOCI support and Facility Clearance (“FCL”) support. Id. at 16 (citing AR 2561

- 62 ) . In fact, SSI contends, TUVA did not

10 SSI does not challenge TUVA’s claim that it is affiliated with SAVA, n oting that both TUVA and SAVA are “Alaska Native Corporations” and “subsidiaries to a common parent (Akima, LLC).” Pl.’s Mot. 15; accord id. (“TUVA is presumably affiliated with SAVA due to their common ownership.”).- 25

- propose to the NNSA that SAVA would provide work in this area. Id. at 1 5

- 16. Rather, SSI

claims that TUVA proposed that SAVA would provide [. . .] full time equivalent (“ FTE ”) position s that fall into PBWS categories 4.1, 4.2, and 4.3, id. at 15 (citing AR 1886, 1974

- 76 )

, and that TUVA would itself provide all of the personn el required to perform services pursuant to
PBWS A rea 5.0

. Id. at 16 (citing AR 1868, 1874 ) . This misplaced reliance, SSI argues, caused

the NNSA to improperly assign TUVA a strength for having experience in all PBWS areas rather than recognizing that TU VA lacked experience providing FOCI/FCL support services and

therefore merited the “ Satisfactory ” rating it originally received for Criterion 3. Id. at 16

- 17 (citing AR 923, 2561

- 62 )

.

Further, SSI claims that the “NNSA was permitted only to evaluate an offeror’s corporate experience references that were provided in Attachments L

- 9 and L

- 10 that complied with the instructions contained in provision L

- 24(b)(3).” Pl.’s Reply & Resp. 6. According to SSI, the NNSA erroneously relied upon the corporate exper ience references of AKIMA, LLC and AKIMA Security, even though they were not listed in Attachments L

- 9 and L

- 10 to TUVA’s proposal. Id. at 6

- 7.

Defendant claims that the RFP permit ted the NNSA to consider the resources of TUVA’s predecessors and affi liates when evaluating TUVA’s corporate experience. Def.’s

Cross

- Mot. & Resp. 19

- 21. In addition, defendant claims that TUVA was not obliged to designate its affiliates as subcontractors in order to demonstrate how their resources would support TUVA’s pe rformance of the contract. Id. at 19. According to defendant , TUVA’s only obligation was to demonstrate how resources such as the workforce, management, or facilities of

its affiliates would be committed to the contract. Id. Furthermore, in response to SSI’s

contention that the NNSA improperly considered SAVA’s experience because TUVA’s proposal did not indicate that a SAVA employee was to provide FOCI/FCL support, defendant argues that

the RFP allow ed the NNSA to consider both SAVA’s assets and resourc es as well as its employees. Id. (citing AR 110)

. Finally, defendant notes that when the GAO considered these same arguments, it found “no basis to question [ the NNSA’s] determination.” Id. at 21 (quoting

AR 2966 )

.

Then, i n response to SSI’s claim that it improperly considered corporate experience references that did not comply with the terms of the RFP in that they were not listed in

Attachments L

- 9 and L

- 10, defendant note s first that “[a]lthough SAVA is both TUVA’s subcontractor and affiliate, th e agency considered TUVA’s explanation of the assets and resources that SAVA would contribute to FOCI/FCL work as an affiliate.” Def.’s Reply 7 (citing AR 1843

, 2562). Second, defendant note s that TUVA’s FPR included an updated version

of Attachment L

- 9, which contained additional information regarding SAVA’s corporate experience. Id. (citing AR 1 843). Third, defendant note s that TUVA’s FPR explained that not only did AKIMA , LLC have specific FOCI/FCL experience, but that AKIMA , LLC would provide TUVA w ith access to its Facility and Corporate Security Officer in addition to providing

financial and administrative resources. Id.

Pursuant to Criterion 3 of the RFP

, an offeror’s corporate experience may be evaluated in
two ways. First, the NNSA stated th at it “ will evaluate and assess the relevancy . . . and depth of [ the offeror’s or its team member’s or subcontractor’s ] experience . . . as it relates to performing- 26

- the portions of the PBWS [ the offeror proposes that it or its team member or s ubcontracto r is ] to perform. ” Id. at 110 (emphasis added) . In other words, the NNSA was obliged to consider the corporate experience of TUVA or its team members or subcontractors if it was related to PBWS

tasks that TUVA proposed it or they would perform. Second, the NNSA stated that it “ may consider the corporate experience of [ a predecessor or affiliated company ] as though the experience [was the offeror’s if the NNSA] determ ines that the assets or resources of the predecessor or affiliated company will be brough t to bear in performance under this contract. ”

Id. (emphasis added). In other words, with respect to TUVA’s predecessors or any companies affiliated with TUVA, the N NSA was permitted, but not obliged, to consider the entity’s assets

or resources as belon ging to TUVA if they would be brought to bear in the performance of the

contract.

TUVA’s FPR provided that in addition to the work performed by TUVA, work would be performed by SAVA and Inquiries, acting as subcontractors. See id. at 1458

- 66. TUVA also

indicated in its FPR that SAVA possessed significant FOCI/FCL experience as a result of work

on a particular FBI contract. See AR 18 4 3

- 4 8

. In addition, TUVA indicated in its FPR that it would receive security support, to include its Facility and Corpora te Security Officer, from

A KIMA, LLC

, its parent company. Id. at 1862

- 63. TUVA also described , for the first time in its

revised Attachment L

- 9

, in section captioned “Additional Corporate Experience,” its ability to rely on the expertise of AKIMA Securit y:

Additionally, AKIMA Security has experience supporting one of our sister companies, AKIMA Infrastructure, LLC, that provides support to the Sandia National Laboratory and the Lawrence Livermore Laboratories, so they are familiar with the DOE’s

proces ses and procedures. AKIMA Security has expertise, knowledge, and skills affecting the Foreign Ownership, Control, or Influence Program (FOCI).

Id. In its revised Attachment L

- 9, TUVA also modified its description of the work performed by

SAVA on the FBI contract , further highlighting TUVA’s ability to satisfy the FOCI/FCL requirements of the instant contract. See id. at 184 3

- 4 4 (“SAVA has developed a breadth of experience in identifying, investigating, analyzing, and assessing both individuals and entit ies with any foreign nexus and its impact on Security and the US Intelligence Community through its extensive work on multiple FBI/ [Subject Matter Expert (“ SME ”)] Contract Task Orders, such as the Security Division, Counterintelligence and Directorate of I ntelligence.

. . . TUVA/SAVA

believes this extensive experience with analytical and investigative work on both individuals and

other entities by their SMEs, coupled with their knowledge and ability to adhere to agency regulations, policies and procedures, mitigates the lack of specific corporate experience pertaining to the PBWS FOCI/FCL Task (5.0). ”)

, 1862

- 63 (“ TUVA receives security support, to include our Facility and Corporate Security Officer, from our parent company, AKIMA, LLC

, that provides these s ervices for all of its subsidiary companies. Additionally, AKIMA Security has experience supporting one of our sister companies, AKIMA Infrastructure, LLC, that provides support to the Sandia National Laboratory and the Lawrence Livermore Laboratories,

so they are familiar with the DOE’s processes and procedures. AKIMA Security has expertise, knowledge, and skills affecting the Foreign Ownership, Control, or Influence Program- 27

- (FOCI). ”)

, 1863 ( “Acknowledging the DOE has its own processes and procedures for FOCI, Team TUVA is confident our reach back to our experienced security staff coupled with the knowledge gained from our experience investigating foreign ownership, influence, and threats to our national security through our FBI SME contract will assist u s in fully executing the requirements of the PBWS and any resulting contract. Additionally, based on our experience successfully staffing contracts with existing incumbent personnel, our team is confident we will be able to retain the existing FOCI/FCL kn owledge base.”).

In evaluating TUVA’s corporate experience pursuant to the RFP’s evaluation criteria, the IPT, in its Revised IPT Report

, explained :

TUVA provided Corporate Experience that is somewhat relevant for FOCI/FCL PBWS (5.0). TUVA/SAVA had S ME [s] that supported the FBI counterintelligence and Counterespionage

missions. The SME [s] gained experience in research to determine if foreign influence was present and posed a threat to security.

SME [s] supported the identification, analysis and dissem ination of information regarding threats to national security as a result of foreign investments/ownership in the US. This included reviewing applications with information related to newly acquired foreign acquisitions, foreign ownership or influence. TU VA’s general knowledge/expertise will assist in performing some of the necessary services to the FOCI/FCL PBWS.

Id. Then, in her Revised SSD, the SSA explained :

TUVA received a “Good” rating for Corporate Experience. Cumulatively, TUVA and their subcon tractors provided Corporate Experience for each of the PBWS areas. TUVA provided Corporate Experience that was highly relevant for Program Management, Processing and Adjudication, and somewhat relevant

for FOCI/FCL. As a result, TUVA demonstrated depth o f experience, as it relates to performing the PBWS and increases the

likelihood of successful contract performance. Overall, TUVA received 3 significant strengths, 1 strengths and no weaknesses.

Id. at 2617. In addition, in an internal memorandum caption ed “Ostensible Subcontracting Review,” which was prepared by the NNSA during the corrective action, not only did the NNSA indicate that FOCI/FCL experience was only relevant to a small part of the work pursuant to the contract, but the NNSA also stated tha t “[e]ven if SAVA’s Corporate Experience and Past Performance contracts had been removed from consideration under the criteria of the same name, TUVA would still have been able to demonstrate Corporate Experience in three of the four task areas and highly rated Past Performance.” AR 2688. Furthermore, in a footnote to this statement, the NNSA added:- 28

- Between TUVA and Inquiries, similarly situated small businesses under the NAICS for this procurement, only experience under the [FOCI] task area would have been lacking. This is a relatively small scope of the work under this requirement for [which] both TUVA and SSI proposed only 3 FTEs. At worst, TUVA would have received a “Satisfactory” rating like other Offerors who were missing experience in one area . . . , including [in] more significant scope areas of performance. With respect to Past Performance, between TUVA and Inquiries, there was highly rated Past Performance such that it is unlikely the rating assigned of “Very

Good” would have been different

.

Id. In sum, the NNSA assessed TUVA’s corporate experience, which included SAVA’s “somewhat relevant” experience, in accordance with the evaluation criteria in the RFP. Its assessment, therefore, was not irrational.

Finally, the court notes that alth ough defendant’s description of the GAO’s conclusion regarding the NNSA’s assessment of TUVA’s corporate experience i s accurate, it is irrelevant :

When the GAO denies a bid protest, and finds the agency decision reasonable, the GAO decision drops out of t he equation when a subsequent protest is brought in our court. See Data Mgmt. Servs.,

J.V. v. United States , 78 Fed. Cl. 366, 371 n.5 (2007) (explaining that the GAO decision “is given no deference”); All Seasons Constr., Inc. v. United States , 55 Fed. Cl . 175, 177 n.1 (2003). The Court is not aware of any Federal Circuit opinions in which the GAO’s seal of approval brings with it any enhanced deference toward the agency decision

— after these opinions note the GAO’s denial of a protest, the GAO decisions do not figure into the Circuit’s analysis. See, e.g.

, Ala. Aircraft [Indus., Inc.

- Birmingham v. United States ] , 586 F.3d [1372,] 1374

- 76 [(Fed. Cir. 2009)] ; Axiom Res. Mgmt. [, Inc. v. United States ], 564 F.3d [1374,] 1378, 1381

- 84 [ (Fed. Cir. 2009)] ; Tip Top Constr., Inc. v.

United States , 563 F.3d 1338, 1341

- 47 (Fed. Cir. 2009); Info.

Tech. [& Applications Corp. v. United States ], 316 F.3d [1312,] 1317, 1319

- 24 [(Fed. Cir. 2003)] . In the admittedly rare case in which the GAO sustains a protest but the ag ency chooses not to follow that office’s recommendation, it seems the agency’s initial procurement decision (not the decision to eschew the recommendation) would be the topic of a resulting bid protest in court, and the deference given the agency’s decisio n is not reduced due to the GAO’s disagreement. See Delta Data Sys. Corp. v.

Webster , 744 F.2d 197, 201

- 02 (D.C. Cir. 1984) (Scalia, J.) (“regard[ing] the assessment of the GAO as an expert opinion, which we should prudently consider but to which we have no obligation to defer” and “reject[ing the] contention that every- 29

- decision of the GAO should be adopted and enforced by the court unless that decision lacks a rational basis”).

CBY Design Builders v. United States , 105 Fed. Cl. 303, 339

- 40 (2012).

b. The NNSA’s Assessment of TUVA’s Corporate Experience Was Neither Arbitrary N or Capricious

Second, SSI claims that three of the experience references TUVA provided the NNSA were not relevant pursuant to the terms of the RFP because they related to contr acts that were not

similar in size to the one described in the RFP. Pl.’s Mot. 17

- 18 (citing AR 110 ) . According to SSI, the first such contract is a subcontract TUVA performed for Lynxnet, LLC in support of the

FAA ( contract number DTFAWA

- 14

- C

- 00023) , wh ich was valued by TUVA at $240,098.50.

Id. at 17 (citing AR 1695 ) . Because TUVA proposed to perform the current contract for nearly $25 million, SSI argues that the FAA contract cannot be considered pursuant to Criterion 3 or

Criterion 4 since it is not similar in “size in dollars” to th e contract contemplated by the RFP. Id. (citing AR 1933 )

.

The other two experience references challenged by SSI are for contracts performed by SAVA, TUVA’s subcontractor. Id

. The first is SAVA’s contract with the USCP (contract number QOU

- OHRT201400003), which was valued at $ [. . .]

. Id. (citing AR 1697 ) . The second is SAVA’s contract with the Army OPMG (contract number HC1028

- 14

- P

- 0271) , which was valued at $ [. . .]

. Id. (citing AR 1698 ) . SSI contends that these c ontracts, like TUVA’s FAA contract, are irrelevant pursuant to Criteri on 3 and Criterion 4 and should not have been considered by the NNSA. Id. at 17

- 18.

In addition to challenging the relevance of TUVA’s experience references, SSI contends

that the NNS A failed to explain why it deemed contracts with much lower values

— such as $ [. . .]

— similar in “size in dollars” to the solicited contract, which was valued at more than $32

million. Pl.’s Reply & Resp. 8

- 9. According to SSI, “[w]here the agency lacks a coherent and reasonable explanation of its evaluation of proposals, the Court cannot ascertain whether the agency’s evaluation had a reasonable basis,” and therefore “the Court cannot find that deeming these contracts relevant was proper.” Id. at 9.

Defendant argues that TUVA’s proposal included relevant corporate experience. Def.’s

Cross

- Mot. & Resp. 21

- 22. Noting that an agency’s “ ‘ determination of relevance is owed deference as it is among the minutiae of the procurement process which [courts] wi ll not second

guess, ’ ” id. at 21 (quoting Glenn Def. Marine (ASIA), PTE Ltd. v. United States , 720 F.3d 901, 909 (Fed. Cir. 2013) )

, defendant claims that SSI “attempts to impose a restriction on the agency’s discretion to determine relevance where none ex ists,” id. According to defendant , the

RFP does not define relevant contracts as those similar in dollar value. Id. In addition,

defendant avers that the NNSA’s evaluation of SSI’s corporate experience included the

consideration of four contracts that h ad a dollar value of less than ten percent of the instant

contract. Id. at 21

- 22. Lastly, defendant s tates that the NNSA’s decision to interpret the phrase “similar in size” broadly was appropriate given that the contract was set aside for a small

busine ss. Id. at 22 (citing AR 7).- 30

- In response to SSI’s contention that the NNSA failed to provide any explanation of its analysis with respect to the relevance of these smaller contracts, defendant claims that the

NNSA’s “ k ey relevance consideration was the ‘degree of similarity between the experience proposed to the work required by the [PBWS].’” D ef.’s Reply 9 (quoting AR 2555). In addition, defendant notes that the NNSA performed an “item

- by

- item comparison of tasks required by the [PBWS] with specific e xperience obtained by TUVA (or its subcontractors).” Id. (citing AR 2556

- 61).

The NNSA was required, p ursuant to the c orporate e xperience criterion of the RFP, to

“e valuate and assess the relevancy [ ] (similarity in nature, size in dollars, and complexi ty) and depth of the Offeror’s (or team member’s or subcontractor’s) experience (provided in

Attachments L

- 9 and L

- 10) as it relates to performing the portions of the PBWS the Offeror (or team member or subcontractor) is proposed to perform. ” AR 110

. Fur thermore, p ursuant to the

p ast p erformance criterion of the RFP, the NNSA was required to assess “ how well the Offeror has performed work similar to that required in this solicitation. ” Id. The RFP does not define, either in its descriptions of the crite ria to be considered or anywhere else, what it means for an

offeror’s corporate experience or past performance to be similar in nature, dollar value, or complexity. The issue therefore is whether the NNSA’s consideration of contracts that rang ed in

dollar value from approximately $ [. . .] to approximately $ [. . .] was reasonable in light of the

fact that TUVA offered to perform the instant contract for approximately $25 million. The answer is yes.

As defendant aptly notes, the NNSA’s discretion in th is area is broad. See

, e.g.
, Linc

Gov ’ t Servs., LLC v. United States , 96 Fed. Cl. 672, 718 (2010) (“Thus, when evaluating an

offeror ’ s past performance, the SSA ‘ may give unequal weight, ’ or no weight at all, ‘ to different

contracts when the SSA views one as more relevant than another. ’ ” ( quoting SDS Int’l, Inc. v.

United States , 48 Fed. Cl. 759, 769 (2001) ) ) ; PlanetSpace, Inc. v. United States , 92 Fed. Cl. 520, 539 (2010) (“At the outset, it is important to note that what does or does not constitute ‘rele vant’ past performance falls within the SSA’s considered discretion.”). In fact, in its Revised IPT Report, the NNSA clearly states

— in the context of evaluating an offeror’s corporate experience

— that it broadly construed relevancy :

Relevancy was met if t he work [ ] was similar in nature, meaning similar to portions of the work required under the PBWS; if the complexity of the Corporate Experience was related and aligned o portions of the work required under the PBWS; and if the size in dollars proposed to perform was similar (applied with broad

discretion ). The thresholds of relevancy are based on the degree of similarity between the experience proposed to the work required by the PBWS.

AR 2555 (emphasis added).

The NNSA’s application of th is standard to TUVA’s corporate experience

— specifically the NNSA’s awarding TUVA three significant strengths for its corporate experience pursuant to

Criterion 3

— reflects this broad approach. Id. at 2557

- 62. For example, t he NNSA beg an its- 31

- discussion of the first si gnificant strength by stating that TUVA provided highly relevant corporate experience for program management. Id. at 2557. Next, the NNSA described the tasks performed by TUVA, its affiliates, and its subcontractors. Id. R egarding TUVA/SAVA’s
corporate experience in one aspect of program management, the NNSA concluded:

TUVA/SAVA conducted studies and analyses directed by the government. They identified efficiencies in program processes and determined which recommendations would be implemented. They

a ssisted and conducted training for the government and developed presentation and training materials in the oversight of training deliverables. They provided coaching and advisory services to achieve improvement in functions and operations. Their PM

inter faced with the [contracting officer] on a regular basis, as well as the Contracting Officer Technical Representative (COTR). The PM managed all phases of the subject matter expert’s work flow, quality and program deliverables. The PM provided risk

assess ment and maintained accountability for quality assurance/quality control schedules, cost and contract performance. The PM prepared monthly invoices and formal status reports/meeting for the FBI COTR. Contract # J

- FBI

- 10

- 035

Id. Therefore, that the NNSA considered contracts that were not performed solely by TUVA does not render the agency’s evaluation in this regard arbitrary or capricious.

In addition to the NNSA’s broad discretion to assess the relevancy of an offeror’s corporate experience , the NNSA also has broad discretion to determine whether an offeror’s previous contracts are similar in “size in dollars” to the solicited contract . For example, in the three PBWS areas of Program Management, Processing, and Adjudication, the NNSA relied upon Inqu iries’ $ [. . .] DOD prime contract and Inquiries’ $ [. . .] million DH S first level

subcontract. See i d. at 2556

- 57. In doing so, t he NNSA did not merely acknowledge that Inquires had experience in those areas, but it specifically identified the tasks per formed. Thus, in the area of Program Management, the NNSA wrote the following regarding Inquiries’ work on

the DOD contract:

Inquiries developed and maintained quality control plans. They were responsible for the overall management of the contract and

p ersonnel. They handled report generation and analysis, briefings, compiling training manuals and work instructions and SOP documents. They ensured all personnel were fully trained and qualified to meet or exceed the government’s timeliness standards,

qua lity standards and deliverables. They were responsible for the execution of all tasks, program management and subcontractor
management.

Id. at 2558. The NNSA also provided the following comment regarding Inquiries’ s work on the

DH S contract: “Inquirie s provided direct customer service and quality control. Their active site

-- 32

- lead oversaw day

- to

- day operations of contractor staff, who directly supported operations within the Personnel security Division.” Id. Therefore, that the NNSA considered contract s that were less than 10% of the solicited contract does not render the agency’s evaluation in this regard arbitrary or capricious.

c. SSI Was Not Prejudiced by the NNSA’s Consideration of TUVA’s Experience on Projec ts Where TUVA Was Not the Prime Contr actor

Third, SSI complains that three of the experience references TUVA lists in its proposal were not relevant pursuant to Criteri on 3 and Criterion 4 because TUVA was not the prime

contractor on those contracts. Pl.’s Mot. 18

- 19. SSI notes that the R FP stated that an offeror’s corporate experience contracts “ ‘ shall include federal customers only. ’ ” Id. at 18 (quoting AR

98 )

. In addition, SSI notes that during the RFP Q&A period, the NNSA clarified that activities performed “in accordance with federa l regul a tions”

— to include “work for other subcontractors and [Maintenance and Operations (“M&O”) ] contractors that support DOE/Federal facilities”

— would not be considered. Id. (quoting AR 210 ). Thus, SSI concludes, only experience

references in which TUV A acted as the prime contractor to a federal government agency may be

considered

, id. , and therefore, the NNSA should not have considered the following cont r acts in

its assessment of TUVA ’ s proposal: (1) c ontract number DTFAWA

- 14

- C

- 00023 , because

TUVA act ed as a subcontractor pursuant to Lynxnet ’s prime contract with the FAA, id. (citing

AR 98 ) ; (2) c ontract number POI321000013 , because SAVA acted as a subcontractor pursuant to another entity’s prime contract with the Army OPMG

, id. (citing AR 795, 1698 ) ; and (3) c ontract
number HSSCCG

- 08

- D

- 00009 , because Inquiries acted as a subcontractor pursuant to Alutiiq Business Services, LLC’s prime contract with t he DHS

, id. at 18

- 19 (citing AR 802, 1 7 06 )

.

Defendant claims that the RFP permits consideration of exp erience obtained by the offerors and their subcontractors as both prime and subcontractors on federal contracts. Def.’s

Cross

- Mot. & Resp. 22

- 23. According to defendant, SSI misinterpret s the NNSA ’s response during the Q&A p eriod

. Id. at 22. Defendant contends that when the NNSA answered “no” to a request to allow consideration of “all activities that are in accordance with federal regulations to include commercial facilities that are governed under [ DOE ] guidelines and work for other

subcontractors and M&O contractors that support DOE/Federal facilities,” id. at 22 (quoting AR

210 ) , it only intended to preclude consideration of insufficiently relevant work experience

, e.g.
, work experience that com plied with DOE/Federal guidelines for commercial facilit ies, id. at 22

- 23. In defendant’ s view, “[t]he RFP

— and evaluation

— focused on the relevancy of the experience, not the offeror’s role as the prime contractor or subcontractor.” Id. (citing AR 110

, 2555

- 62). Defendant f urther claims that “TUVA’s proposal does not rely on contracts with commercial facilities, other subcontractors, or M&O contractors.” Def.’s Reply 10.

As SSI contends, the RFP provides that, when completing Attachment L

- 9, the “Corporate Experience & Performance Self

- Assessment Form,” offe rors we re instructed to list

contracts that “ include federal customers only. ” AR 98. However, t h e RFP does not indicate

whether those contracts may only be ones in which the offeror acted as the prime contractor or

whether federal contracts for which the offeror acted as the subcontractor may be listed as well.

B ecause this provision within the RFP “ is susceptible to more than one reasonable interpretation,” Banknote , 365 F.3d at 1353, the solicitation is ambiguous. Therefore, the court- 33

- must determine w hether that ambiguity is latent or patent. See Grumman Data Sys. , 88 F.3d at 997. In this case, SSI was not presented with “facially inconsistent provisions

, ” Stratos Mobile Networks USA, LLC , 213 F.3d at 1381, which would have placed it on notice and pr ompted it to make inquiries.

That said, based on the plain language of the Q&A exchange concerning relevant experience , it is clear that all offerors received clarification from the NNSA that (1) activities relating to commercial facilities governed by DOE guidelines would not be considered, and (2) work for other subcontractors and M&O contractors in support of DOE/Federal facilities would not be considered. Thus, despite defendant ’s claim that the NNSA only intended to preclude

consideration of work performed on commercial facilities, the NNSA actually precluded consideration of two types of experience: work for commercial facilities and “work for other subcontractors and M&O contractors in support of D OE/Federal facilities.” AR 210. Thus, the Q&A exchange does not clarify the latent ambiguity.

T h e next question is whether SSI relied on the ambiguity

. See NVT Techs. , 370 F.3d at

1162. On this point, the record is un clear. Although SSI does not explicitly state that it relied on the ambiguity, i t did not list any contracts on its “Corporate Experience & Performance Self

Assessment Form,” in which it was the subcontractor. See id. at 1161

- 80. In any event, even if SSI relied on the ambiguity, and the ambiguity must therefore be construed against the NNSA, SSI has not shown that it was prejudiced by such reliance. In other words, without more, SSI cannot argue that TUVA ’ s receipt of a “Good” rating with respect to its c orporate e xperience, as compared to SSI’s receipt of an “Excellent” rating, wa s sufficiently prejudicial to SSI such that

the NNSA’s decision to award the contract to TUVA must be deemed arbitrary, capricious, and

without basis. Moreover, SSI cannot argue that absent this error in the NNSA’s evaluation of the

various proposals , SSI would have been awarded the contract.

d. The NNSA Did Not Misevaluate TUVA ’s Past Performance Pursuant to Criterion 4

F inally, SSI argues that the NNSA misevaluated TUVA ’s past performance pursuant to
Criterion 4. Pl.’s Mot. 19

- 20. Specifically, S SI contends that the NNSA’s assessment was flawed because it erroneously deemed all of TUVA’s and its subcontractors’ experience

references relevant , even though three of the contracts

— one of TUVA’s and two of SAVA’s

—

were not relevant

. Id. This led, SSI avers, to the NNSA improperly assigning TUVA three strengths for Criterion 4 when it should only have assigned two

— one strength for its past performance and one strength for its ability to recruit and retain personnel. Id. (citing AR 2563

- 6 9 )

. SSI conclu des:

These errors impacted the evaluation of offerors and the final tradeoff decision, as SSI was assigned a rating of Very Good under Criterion 4 based on its having one significant strength, three strengths, and no weaknesses, including receiving Exce ptional and Very Good ratings on the incumbent contract. It is likely that, without three of its assigned strengths, TUVA would not be viewed as favorably when the offerors were compared, and TUVA would be found to be Satisfactory instead of Very Good und er- 34

- Criterion 4.

Id. at 20 (citation omitted)

.

Defendant argues that the NNSA’s evaluation of TUVA’s past performance was rational.

Def.’s Cross

- Mot. & Resp. 23

- 24. First, with respect to SSI’s contention that TUVA should have received a “Satisfactory ” rather than a “Very Good” rating because three of the contracts

the NNSA considered were not relevant, defendant contends that SSI fails to acknowledge the

broad discretion afforded the agency. Id. Second, with respect to SSI’s claim that the NNSA

cons idered TUVA’s past performance on contracts that were smaller in size and value, defendant counters that despite the differences, these contracts were nevertheless still relevant. Id. at 24 (citing AR 2567). Third, defendant claims that the RFP does not, as SSI asserts, prohibit consideration of work TUVA performed for a federal agency as a subcontractor

. Id. Finally,

defendant a rgues that SSI has not offered any concrete evidence to support its contention that the NNSA’s assessment of TUVA’s past perfo rmance ultimately affected its best value trade

- off

decision. Id. In the NNSA’s view, not only was SSI afforded an advantage in the category of past performance, but even if SAVA’s experience had not been considered, TUVA and Inquiries were rated highly for past performance and thus it is likely that TUVA ’s past performance would still have been rated “Very Good

. ” Id. (citing AR 2688).

SSI quarrels with defendant ’s conclusion that it i s unlikel y that errors in the NNSA’s assessment of TUVA’s past perfo rmance affected the ultimate award decision. P l. ’s Reply & Resp. 11

- 12. According to SSI, defendant ’s argument “ignores that the RFP provided for a best value analysis, where the evaluation factors were more important than price, but as technical

proposa ls became close or similar in merit, the evaluated cost is more likely to be a determining

factor.” Id. (citing AR 109). Thus, SSI contends that if the NNSA ultimately concluded that

SSI ’s proposal was superior to TUVA ’s proposal with respect to past per formance, “the magnitude of that superiority is critical to the best value tradeoff.” Id. at 12.

Because SSI’s arguments regarding NNSA’s evaluation of TUVA’s proposal under

Criterion 4 mirror those SSI advanced with respect to Criterion 3 , the cour t’s analysis of those arguments is also the same

. See Section III.B.2. b

- c
, supra . In a nutshell, not only did the NNSA possess broad discretion to evaluate TUVA’s and SSI’s past performance, to include the

consideration of contracts smaller in size and v alue than the instant contract, but more importantly, SSI has once more failed to offer any evidence that but for the NNSA’s consideration of TUVA’s and its subcontractor’s experience references, SSI would have been

awarded the contract. As noted in the R FP, “[i]n determining the best value to the Government,

Evaluation Criteria 1

- 4, when combined, are significantly more important than cost/price . . . . The Government is more concerned with obtaining a superior technical proposal than making an

award at the lowest evaluated total cost to the Government (including fee).” AR 109. Thus, although SSI suggests that TUVA’s receipt of a lower rating for p ast p erformance would have

affected the outcome of the NNSA’s calculus, such a broad statement cannot be ma de in this case, given the NNSA’s use of a trade

- off analysis. In other words, even if TUVA had only received a “Satisfactory” rating pursuant to Criterion 4, it still would have received higher ratings in three of the four criteria ( C riteri on 1, Criterio n 2, and Criterion 5) , two of which were deemed more important than Criterion 4. Lastly, although SSI’s contention regarding the- 35

- significance of the magnitude of SSI’s superiority in the area of past performance is sound, it is

no substitute for concrete evidence that but for TUVA’s receipt of a “Very Good” rating in this category, SSI would have been awarded the contract.

3. The NNSA’s Cost Realism Analysis Was Rational

Plaintiff’s final claim concerns the NNSA’s cost realism analysis. The contract that the NNSA sought to award is a cost reimbursement contract. Thus, as noted above, the RFP required a cost realism a nalysis “to ensure that the final agreed

- to price is fair and reasonable.”

FAR 15.404

- 1(a). A c ost realism analysis is

the process of independently reviewing and evaluating specific

elements of each offeror ’ s proposed cost estimate to determine whether the estimated proposed cost elements are realistic for the work to be performed; reflect a clear understanding of the requirements; and are consistent with the unique methods of performance and materials described in the offeror ’ s technical proposal.

FAR 15.404

- 1( d)(1). Agencies tasked with performing such an analysis must make appropriate probable cost adjustments such that an offeror’s proposed cost best reflects the estimated cost of performance. FAR 15.404

- 1(d)(2)(i). Thus, agencies must consider “the information available ”

and must “ not make ‘irrational assumptions or critical miscalculations.’” Univ. Research Co.,

LLC v. United S tates

, 65 Fed. Cl. 500, 509 (2005) (quoting OMV Med., Inc. v. United States

, 219 F.3d 1337, 1344 (Fed. Cir. 2000)). In addition, agencies must “make a good faith effort to consider material facts that a reasonably prudent person would consider relevant to the procurement decision.” United Payors & United Providers Health Servs., Inc. v. United States

, 55 Fed. Cl. 323, 329 (2003).

T o overturn an agency’s cost realism determination, a protester must establish that the agency’s decision lacked a rational b asis. JWK Int’l Corp. v. United States , 49 Fed. Cl. 371, 393 (2001); see also CTA, Inc. v. United States , 44 Fed. Cl. 684, 693 (1999) (“‘Decisions on cost realism are within the agency’s sound discretion and expertise, and the judgment will not be

overtur ned absent any rational basis.’” (citation omitted)). While an agency’s cost realism analysis need not have been performed with “impeccable rigor” to be rational, OMV Med. , 219

F.3d at 1344, the analysis must reflect that the agency considered the informa tion available and did not make “irrational assumptions or critical miscalculations.” Id. ; see also United Payors &

United Providers Health Servs. , 55 Fed. Cl. at 329 (“‘Because the agency is in the best position to make this cost realism determination, o ur review is limited to determining whether its cost evaluation was reasonably based and not arbitrary.’” (citation omitted)). Finally, in the context of a best value procurement, the court’s consideration of an agency’s decision is particularly

deferenti al. See Galen Med. Assocs. , 369 F.3d at 1330.

B ecause “contracting officers are vested with wide discretion with regard to the evaluation of bids,” Labat

- Anderson, Inc. v. United States , 42 Fed. Cl. 806, 846 (1999), and are

entitled to “broad discretion . . . to determine whether a proposal is technically acceptable, [a]- 36

- plaintiff has an unusually heavy burden of proof in showing that the determination made in this regard was arbitrary and capricious.” Cont’l Bus. Enters. v. United States , 452 F.2d 1016, 1021 ( Ct. Cl. 1971)

.

According to SSI, the NNSA neglected to perform a reasonable cost realism analysis of TUVA’s proposal. Pl.’s Mot. 20

- 34. SSI advances four arguments in support of its contention.

Id. Defendant counters that the NNSA’s cost re alism analysis had a rational basis. Def.’s Cross

Mot. & Resp. 25

- 35. According to defendant

, because the NNSA was given broad discretion to devise its own methodology for analyzing cost proposals , the court’s review therefore is necessarily “ ‘ very narro w. ’ ” Id. at 25 (quoting McConnell Jones Lanier & Murphy LLP v. United States , 128 Fed. Cl. 218, 236 (2016) )

. Defendant also urges the court to give prudent

consideration to the GAO’s conclusion that the NNSA’s cost realism analysis was reasonable and sup ported by the record. Id. at 26 (citing AR 2959

- 61 and McConnell Jones Lanier & Murphy , 128 Fed. Cl. at 236 n.9). For the reasons set forth below, plaintiff fails to meet its

burden.

a. The NNSA’s Evaluation of TUVA ’s Direct Labor Rates Was R ational

First, SSI avers that the NNSA failed to appropriately account for what SSI characterizes

as TUVA’s unrealistically low direct labor rates. Pl.’s Mot. 22

- 26. Specifically, SSI contends

that the NNSA should have realized that TUVA’s proposed price was mu ch too low to support the technical approach described in TUVA’s proposal

. Id. In support of its position, SSI argues that a simple comparison of the direct labor rates proposed by SSI with those pro po sed by TUVA, for [. . .] labor categories, demonstrat es that TUVA’s proposed direct labor costs are [. . .] % lower than SSI ’s

. Id. at 23. SSI also suggests that the NNSA should have appreciated that TUVA’s commitment to retaining a minimum of [. . .] % of the incumbent personnel, AR

1679

, at comparable labo r rates, id. at 2017 , was inconsistent with TUVA’s concurrent promise

of low direct labor rates. Pl.’s Mot. 23

- 24. According to SSI, “[i]t is well

- established that a cost realism analysis requires consideration of whether the offeror’s proposed cost refl ects a clear understanding of the requirements to be performed, and is consistent with the unique methods and materials described in the offeror’s technical proposal,” id. at 24 (citation omitted), and although the NNSA appropriately concluded “that TUVA’s rates were too low to retain [. . .] % of the incumbent workforce, the NNSA did not assign a weakness

, ” i d. (citing AR 2 573 ) . Had

the NNSA conducted a reasonable cost realism analysis, SSI adds

, the NNSA would have made a probable cost adjustment instead of simply accepting TUVA’s low proposed direct labor rates.

Id. at 25

- 26 (citing AR 2571 )

.

Defendant claims that the NNSA reasonably evaluated TUVA’s direct labor rates. Def.’s

Cross

- Mot. & Resp. 26

- 30. Specifically, defendant notes that the NNSA (1) used several techniques to evaluate TUVA’s direct labor rates; (2) appropriately considered TUVA’s proposal

to maintain [. . .] % of the incumbent staff since T UVA never proposed to retain those individuals at their incumbent salaries; and (3) properly eval uated the realism of TUVA’s proposed direct labor rates in accordance with TUVA’s proposal since TU VA proposed the retention of [. . .] %

of NNSA’s benchmark of [. . .] FTEs. Id. at 26

- 30.- 37

- In response to defendant’s defense of the NNSA’s analysis of TUVA ’s direct labor rates,
SSI contends that the NNSA’s methodology is “insufficient.” Pl.’s Reply & Resp. 13. According to SSI, the NNSA’s standard deviation analysis, which compared TUVA’s average total direct labor rates with SSI’s average total direct la bor rates

— for both management and
nonmanagement positions

— does not satisfy the requirements of FAR 15.404

- 1(d)(1). Id. at 13

- 14. Rather, SSI argues that the NNSA should have performed such an analysis for each labor
category. Id. at 14. In addition, SS I claims that although the NNSA attempted to determine

whether TUVA could retain at least [. . .] % of the incumbent personnel at its proposed direct labor rates, the NNSA “largely disregarded the results of its analysis.” Id. In SSI’s view, the

NNSA’s Re vised IPT Report demonstrated that to reach [. . .] % retention, TUVA would have had to raise the rates for certain positions and lower the rates for others. Id. at 15. Thus, SSI contends, the NNSA should have made a “probable cost adjustment” to TUVA’s p roposal. Id. Finally, SSI claims that the NNSA failed to properly analyze TUVA’s proposal with respect to retaining specific incumbent personnel at proposed rates. Id. at 16. In this regard, SSI claims

that the NNSA should have conducted a proper cost realism analysis to determine whether TUVA’s technical approach align ed with its cost proposal. Id. at 16

- 17.

In a final defense of the NNSA’s analysis of TUVA’s proposal to retain [. . .] % o f the incumbent staff, defendant provides a detailed explanati on of the NNSA’s analysis. Def.’s Reply

10

- 13. According to defendant , for each of the [. . .] labor categories identified in TUVA’s proposal, the NNSA “tested the feasibility of maintaining [. . .] incumbent employees by comparing (1) TUVA’s proposed ra te for each labor category in the Staffing Plan with (2) the incumbent rate for that category under multiple scenarios.” Id. at 10 (citing AR 2573 ) . In one scenario, the NNSA considered what would happen if TUVA did not retain any of the [. . .]

, thereby retaining [. . .] incumbents with [. . .] new hires. Id. The NNSA concluded that at this [. . .] % retention rate , there was no underbidding or lack of cost realism. Id. (citing AR 2573)

. In an alternative scenario, the NNSA considered what would happe n if TUVA retained, in a given labor category, only those employees whose proposed direct labor rate s were within [. . .] % o f the incumbent’s average rate in that category. Id. at 11 (citing AR 2573 and Tab 61). Pursuant to this scenario, the NNSA found that TUVA would not retain any [. . .] , or [. . .]

, thereby retaining [. . .] incumbents with [. . .] new hires

— a [. . .] % retention rate

. Id. (citing AR 2573). Once more, the NNSA concluded that there was no lack of cost realism. Id. The NNSA

“also de termined that such a scenario presented low risks because if TUVA increased direct

labor rates for [. . .] to incumbent rates, TUVA could likely meet its [. . .] percent retention goal at an increased cost of only $ [. . .]

— less than [. . .] percent of TUVA ’s proposed direct labor costs for one year.” Id. (citing AR 2573). In response to SSI’s argument that the NNSA should have determined whether, under TUVA’s proposal, certain incumbent personnel could be retained, the agency contends that there was no ne ed to do so since it had previously considered a

scenario in which TUVA did not retain individuals whose rates were [. . .] % less than incumbent

rates. Id.

Turning to the Revised IPT Report itself, the NNSA’s detailed explanation of its

evaluation of TU VA’s direct labor rates amply demonstrates that its analysis was thorough and

that its conclusions were r ational

. The NNSA ’s price analyst began by assessing how close TUVA’s proposed direct labor costs were to its probable direct labor costs :- 38

- TUVA propo sed $ [. . .] in direct labor costs, which represents [. . .] % of the total proposed price. TUVA estimated salaries by using [. . .] . DCAA verified the proposed non Service Contract Act (SCA) labor rates to labor rates in an updated salary ranges

document prepared by the contractor and to actual salaries in payroll. DCAA determined that proposed labor rates are within

the [. . .] . The Government compared the proposed SCA labor category rates to the Department of Labor (DOL) Wage

Determination No. 2005

- 23 61, Revision 18, dated January 5, 2016 and all labor rates met or exceed SCA labor rates. The analyst used Standard Deviation (SD) analysis and independent assessment to evaluate the realism of proposed labor rates. SD was calculated by isolating Manageme nt categories for all Offerors. A second SD factor was also calculated for all other (non

management) average rates by offeror. Applying the SD approach, the rates fall slightly outside one SD of the respective mean. The variance for management labor do es not result in underbidding. The variance for ‘other’ categories is approximately 1% less than the SD range or 4% less than the mean. Based on DCAA’s review and the minimal variances disclosed in the SD analysis no apparent

understatement of labor rate s is found. TUVA proposed [. . .] % annual escalation, which is in line with the market rate proposed by other contractors under this solicitation. Escalation is proposed by program year. The probable direct labor cost is the same as the proposed.

AR 25 71.

Next, the NNSA’s price analyst considered the viability of TUVA’s promise to retain [. . .] % of the incumbent staff

. Id. at 2573. Firs t, she compared TUVA’s and SSI’s direct labor

rates and found that “ TUVA’s average total rate was $ [. . .] or [. . .] % less than SSI [ ’ s].” Id

. Second, she isolated TUVA’s direct labor rates for management from the average rates and found that TUVA’s average total rate for management was “ [. . .] % or $ [. . .] higher ” than SSI’s and that TUVA’s average total rate for nonmanagement was “ within [. . .] % ” of SSI’s

. Id. Third, she concluded that although TUVA’s total proposed direct labor rate was [. . .] % lower than SSI’s, the majority of the difference was attributable to the fact that TUVA proposed [. . .] direct pro ductive labor hours per annum, while SSI proposed [. . .]

. Id. When the NNSA ’s price analyst adjusted TUVA’s direct labor rate to reflect this difference, she concluded that TUVA’s

direct labor rate was [. . .] % higher than indicated in TUVA’s FPR ($ [. . .] vs. $ [. . .] ). Id. In other words, after she modified TUVA’s cost proposal such that s he was able to conduct a true comparison of TUVA’s and SSI’s direct labor rates, she found that TUVA’s rates were [. . .] % higher. Id. However, she explained that she did not consider any further adjustment warranted

because TUVA never claimed that it would retain 100% of the incumbent workforce. Id. The

NNSA ’s price analyst further noted that if TUVA did retain certain individuals from the- 39

- incumbent workforce, N NSA was not required to pay 100% of their salaries. 11 Id.

In addition to taking the above steps, because the NNSA’s price analyst noticed that there were significant ranges within the incumbent rates for processors ( between $17.50 and $49.96 per hour, for an avera ge hourly rate of $21.39) and adjudication ( between $24.50 and $49.93 per hour

, for an average hourly rate of $30.22) ; and that lead positions could earn as much as double the amount paid entry level employees

, s he performed a separate analysis of each labor category.

Id. Noting that to satisfy its promise of [. . .] % retention, TUVA would have to retain [. . .] FTEs ( [. . .] % of the incumbent’s current staffing level of [. . .] FTEs), 12 she “ noted that the Program Analyst’s and lead positions wou ld potentially be hard to maintain within budgeted costs while the remaining incumbent labor [was] feasible. ” Id. She then concluded that, if an adjustment

was made to [. . .] by 6%, the proposal was realistic. Id. Lastly, the NNSA’s price analys t

conc luded that there was “no evidence of underbidding ” in TUVA’s proposal. Id. As noted

11 In its opposition to SSI’s motion f or judgment on the administrative record, defendant

relies on FirstLine Transportation Security, Inc. v. United States , 119 Fed. Cl. 116 (2014), in support of its argument that TUVA’s proposal to retain [. . .]% of the incumbent labor force was

reasonable: “The agency considered the protester’s argument, but determined that the compensation package described by the awardee, along with its independent consideration of employee retention rates at other airports, sufficiently mitigated the risk that the award ee would be unable to meet its retention plan.” Def.’s Cross

- Mot. & Resp. 28 (citing FirstLine , 119 Fed. Cl. at 130). SSI challenges defendant’s reliance on FirstLine on the grounds that although the case involved an incumbent retention plan, it did not involve a cost realism analysis: “Instead, the court’s analysis [was] focused on the reasonableness of the agency’s evaluation under two technical evaluation factors unrelated to cost or price.” Pl.’s Reply & Resp. 16. In response,

defendant notes that although the court in FirstLine did not specify whether the agency’s analysis was conducted as part of a cost realism analysis, the rationale behind both is the same

— “to ensure that an offeror’s technical approach is feasible at the proposed cost.” Def.’s Reply 12. The court agrees. In FirstLine , the court held that the agency’s evaluation of the successful offeror’s employee retention plan was rational. 119 Fed. Cl. at 129. Specifically, the court noted the agency considered all aspects of the awardee ’s plan, such as its compensation package, its employee incentive program, and comparable retention rates at other similar facilities: “Rather, the administrative record demonstrates that [the agency] considered all aspects surrounding [the awardee’s] pro posed retention rate and still found no risk.” Id. at 130 (emphasis added). Furthermore, although the words “cost” or “price” do not appear in the court’s analysis, the court’s description of the protester’s arguments clearly references cost and price: “ According to Plaintiff, Akal will not be able to retain [* * *] percent of the existing workforce, because it proposed compensation packages to employees [that are] worth less than what FirstLine currently offers to its screeners. . . . [Plaintiff] argue [s] that wage and hour cuts ‘ materially impact morale and retention, ’ and it is patently irrational to conclude that these cuts can be mitigated by the strategies Akal proposed. ” Id. at 129. Thus, that the FirstLine court did not

indicate that its review was a cost realism analysis is immaterial. As defendant rightly contends, the purpose behind the agency’s review was the same

— to make sure the proposed workforce (one element of which is compensation) was capable of performing the contract.

12 In its FP R, TUVA proposed [. . .] FTEs. AR 2573.- 40

- above, t his conclusion was affirmed by the SSA in her February 23, 2017 Revised SSD

. See AR

Tab 3 8 at 2611, 2618. Thus, there is no evidence that NNSA’s evaluation of T UVA’s direct labor rates was anything other than rational.

b

. The NNSA’s Evaluation of TUVA ’s Ind irect Rates Was R ational

Second , SSI contends that the NNSA erred in its consideration of TUVA ’ s indirect labor rates, which includes fringe benefits, lab or overhead, and general and administrative (“G&A”)

costs . Pl.’s Mot. 26

- 27. According to SSI, TUVA proposed a “robust and competitive benefits package,” which included “ [. . .]

. ” Id. at 26 (citing AR 1681

- 82, 1832, 1955

- 56 ) . SSI further

note s that TUV A also promised to provide “ [. . .], ” all of which constitute additional indirect

labor costs. Id. (citing A R 1464, 2067 ) . Yet, SSI argues, TUVA only “ proposed a fringe rate of [. . .] %, a labor overhead rate of [. . .] %, and a G & A rate of [. . .] %. ” Id

. (citing AR 1935 )

. Had

the NNSA performed a proper cost realism analysis, SSI contends, it would have recognized that

these rates wer e far too low to cover the benefits TUVA proposed in its proposal

. Id. In SSI’s view, t he fact that these expenses w ere not discussed in the NNSA’s Revised IPT Report renders

it unreasonable. Id. (citing AR 2571

- 72 )

.

Defendant claims that the NNSA reasonably evaluated TUVA’s indirect labor rates.

Def.’s Cross

- Mot. & Resp. 30

- 31. According to defendant, the NNSA ’s reli ance on TUVA’s explanation that it would have access to the resources of AKIMA , LLC, its parent company

— thereby r educing TUVA’s costs for [. . .]

— was appropriate. Id. at 30. Defendant further contends that not only did outside information provided by the DCAA confirm the NNSA’s conclusion that TUVA’s indirect labor rates were reasonable, id. at 30 (citing AR 2571), but the

GAO ’s review of the NNSA’s cost analysis found “nothing objectionable,” id. (citing AR 2961 ).

SSI challenges defendant’s reliance on the DCAA’s approval of TUVA’s indirect labor rates. Pl.’s Reply & Resp. 17. According to SSI, the D CAA was not privy to TUVA’s proposal and its conclusion was based on a comparison of TUVA’s proposed indirect labor rates with

TUVA’s Forward Budget Submi ssion

. Id. (citing AR 4513

- 14). SSI further argues that in its

reliance on the D CC A’s analysis, the NNSA failed to conduct an independent evaluation of

TUVA’s indirect labor costs to determine whether they were reasonable. Id. at 17

- 18.

Defendant repli es by noting once more that the NNSA has broad discretion to rely on both TUVA’s claim that it had access to the financial and administrative resources of its parent

company and the D CA A’s analysis. Def.’s Reply 13

- 14.

The NNSA’s conclusion s that ther e was “ no evidence of underbidding ,” AR 2571, and

that TUVA’s “ proposed indirect rates [were] realistic and incorporated into the probable cost ,”

id. , w ere reasonable. First, the NNSA noted that TUVA ’s proposed indirect labor costs of [. . .]

, which const ituted [. . .] % of its total proposed price, was “based on FY16 budgeted rates adjusted for the impact of this contract.” AR 2571. In addition, a lthough the NNSA noted that the DCAA had determined, [. . .]

, it decided not to make an adjustment because “ [ . . .]

. ” Id. Significantly, the NNSA further found that any variances between TUVA’s proposed price and the probable cost was “due to a d ecreased base, which excludes Inquiries rounding amounts ,” id.

, amounts that the NNSA excluded from its probable cost figure because they were viewed as contingency fees, id. at 2573; see also id. at 257 2

- 73 (“Inquiries estimated indirect rates using its- 41

- current business forecast. The cost proposal narrative provides the previous 3 year actual rates.

It should be noted that the actual experienced G&A rate for Inquiries is significantly higher than the proposed rate. Inquiries’ narrative cost proposal indicated that the rate is proposed as a ceiling or CAP rate. If awarded TUVA should include the proposed ceiling of [. . .] % within Inquiries’ contract. Inquiries proposed a fee of [. . .] %. The proposed cost summary includes a

line for ‘ rounding from the summary sheet to the Prime .’ The rounding amounts total to over $ [. . .] . The [government’s probable cost] exclude s this amount as it is considered a contingency.

The [probable cost] f or Inquiries results in a variance of $ [. . .] .”). The court cannot quarrel with

the NNSA’s exclusion of a contingency in its review of an offeror’s proposal, as these amounts

will nec essarily vary from offeror to offeror and do not reflect probable costs to the government.

Next

, as noted by the GA O in its review of SSI’s protest, AR 2961, TUVA’s proposal

indicated that TUVA would have access to the resources of its parent company:

TUVA has access to technical and administrative reach back to its parent company, AKIMA, LLC. [. . .] Additionally, we are able to offer lower indirect costs by virtue of a shared services platform that provides various management services directly to our

company.

Id. 7. While is not clear from TUVA’s proposal what the dollar value of the various management services

— to include [. . .] , it was not unreasonable for the NNSA to take into account the resources of TUVA’s parent company when assessing TUVA’ s proposed indirect

labor costs.

Furthermore, given the NNSA’s b road discretion in conducting a cost realism analysis in the context of a best value procurement, it is of no moment that the NNSA chose not to conduct

its own evaluation of TUVA’s indirect labor rates. In addition, that the NNSA’s conclusions regarding TUVA’s indirect labor rates were in part based on information provided by the DCAA

does not render those conclusions less valid. Lastly, although the court notes that the GAO found “nothing objectionable” in the NNSA’s cost analysis of TUVA’s proposal, as the court stated above, it owes no deference to the findings of the GAO. See Section III.B.2.a

, supra

.

c. The NNSA’s Evaluation of TUVA’s Staffing Plan Was R ational

Third, SSI advances a two

- part argument in support of its contention that the NNSA’s evaluation of TUVA’s staffing plan was unreasonable. Pl.’s Mot. 27

- 33. Defendant counters
that the NNSA’s evaluation of TUVA’s staffing plan was reasonable because TUVA’s cost proposal was consistent with its staffing plan

. Def.’s Cross

- Mot. & Resp. 31

- 35.

i. The NNSA Did Not Ignore a ny Risks Associated W ith TUVA’s Staffing Plan

In the first part of its argument, SSI contends that , although the NNSA initially identified several problems with TUVA’s staffing plan, it did not account for these deficiencies in its final

assessment. Pl. ’ s Mot. 27

- 29. Specifically, SSI notes that the NNSA at first found that (1) TUVA “failed to assign job duties for some of the PBWS function s within the prop osed labor- 42

- categories,” AR 863 ; (2) TUVA “failed to assign job duties in four entire subsections within the PBWS,” id. ; (3) TUVA did not provide enough information for the NNSA to determine whether the total number of hours proposed, by labor category, wer e sufficient to complete the work

described in the PBWS, id. , and ( 4 ) there were material difference s between TUVA’s proposed

cost and the IGCE, and between TUVA’s total direct labor hours and the IGCE, id. at 864 . SSI

also notes that TUVA responded to th ese criticisms by making changes to its technical proposal, to include additions to its staffing plan narrative

. Id. However, SSI claims, TUVA d id not adjust

its overall staffing p l an or cost proposal. Pl.’s Mot. 27. In other words, SSI argues that alt hough TUVA added tasks to various positions, it never adjusted the number of FTEs or direct labor hours required to perform that work and instead reduced its proposed price for work performed during the base year. Id. at 29. In SSI’s view, the revisions TUVA made to its proposal actually

increased the risks to the NNSA, risks the NNSA ignored in its evaluation of TUVA’s FPR , thus rendering the NNSA’s ultimate assessment of that proposal unreasonable. Id.

According to defendant, TUVA appropriately adde d information to its staffing plan regarding the job duties within certain labor categories or PBWS functions in response to the

NNSA ’s comment s . Def.’s Cross

- Mot. & Resp. 31 (citing AR 1825

- 28). Defendant argues that

the addition of this information did not require any further adjustment to TUVA’s staffing plan

because the NNSA became satisfied that “employees were assigned to all PBWS functions.” Id. (citing AR 2550). In addition, defendant notes that although SSI responded to the same critique

from t he NNSA by not only supplementing its staffing plan narrative but also by adding two FTEs to Processing and removing two FTEs from Adjudication in its FPR, TUVA had no obligation to do the same. Id. (citing AR 1147). Defendant further claims that the rea son why

the NNSA was not concerned with the “minor cost reduction” in TUVA’s FPR was because TUVA explained that the reduction was due to a change in TUVA’s indirect rates since the submission of its first proposal: “TUVA’s final proposal revision indicat es that the reduction merely reflect s changes to indirect rates ( e.g. [. . .] ) given the passage of time since the submission of its first proposal; the proposed labor hours and rates remained the same.” Id. at 32 (citing AR 744

, 1962)

. Lastly, defendant contends that SSI “identifies nothing irrational about [ the NNSA’s] determination that the efficiencies in TUVA’s staffing plan would allow it to complete the scope of work within [fewer] labor hours than anticipated in the IGCE.” Id. at 32. According t o defendant , SSI “is currently performing the contract with [. . .] [fewer] FTEs than TUVA proposes.” Id. (citing AR 2573).

In its reply, SSI claims that the NNSA failed to recognize that it was obliged to consider

the staffing plan in TUVA’s technical p roposal as well as the staffing plan in TUVA’s cost proposal. 13 Pl.’s Reply & Resp

. 18. According to SSI, although TUVA made changes to the

13 Although SSI suggests, in its reply, that there are two staffing plans

— one in TUVA’s technical proposal and one in TUVA’s cost proposal, the court finds no support in the

administrative record for this claim

. As noted in the NNSA’s September 28, 2016 SSD, the IPT initially evaluated the four proposals within the competitive range pursuant to the four criteria listed in the RFP: technical approach, staffing plan and program manager qualifications,
corporate exper ience, and past performance. AR 2263. Then, the IPT evaluated the cost of the offerors’ proposals, noting that “[w]hen combined, the four criteria are significantly more important than Cost; however, cost/price will contribute substantially to the select ion decision.”- 43

- staffing plan in its technical proposal, no changes were made to the staffing plan in its cost proposal. Id. at 18

- 19. In addition, SSI claims that the NNSA failed to consider the effect that changes to TUVA’s technical proposal would have on TUVA’s cost proposal. Id. at 19. In SSI’s view, “TUVA proposed to do substantially more work with the same number of FTEs,

u sing the same number of hours, at a slightly lower price,” and the “NNSA accepted this without question, disregarding the risks that it had previously assigned.” Id. at 20.

In its own reply, defendant claims that SSI waived its right to challenge the NNSA’s

evaluation of TUVA ’ s technical proposal with respect to Criterion 2 (Staffing Plan and Program Manager Qualifications ). Def.’s Reply 14

- 16. Specifically, defendant argues that SSI’s complaint contains no such allegation and SSI cannot raise an all egation for the first time in its reply brief. Id. at 15 (“ Furthermore, defendant contends that SSI mistakenly assumes that “additional detail regarding the tasks assigned to a labor category constitutes additional duties.” ).

SSI did not, in its compl aint, assert any allegations related to the NNSA’s assessment of TUVA’s staffing plan. Therefore, as defendant rightly contends, SSI cannot make the argument for the first time in its reply brief. See Novosteel SA v. United States , 284 F.3d 1261, 1274 (F ed. Cir. 2002) (“ Raising the issue for the first time in a reply brief does not suffice; reply briefs reply to arguments made in the response brief

— they do not provide the moving party with a new opportunity to present yet another issue for the court ’ s con sideration. ”). Even if SSI had not waived the argument, however, it still lacks merit.

TUVA’s augmentation of its staffing plan in its FPR to include additional information, coupled with TUVA’s explanation of the decrease in its indirect labor rates and the NNSA’s rational assessment of the number of FTEs required to perform the contract

, confirm that the

NNSA did not ignore any risks in its assessment of TUVA’s plan

. First, in its FPR, TUVA responded to the NNSA’s concerns regarding its staffing plan by refining its descriptions of each of the proposed labor categories a nd providing more information regarding the duties of each of the positions

. See AR 1825

- 29. For example, TUVA made the following modifications

— a strikeout indicates material that was r emoved and an underline indicates material that was

added

— to the Program Analyst III labor category:

Program Analyst (PA) III

- (PBWS 4.1.2) Team TUVA proposes [. . .]

.

Id. at 1825. TUVA then added the following information to its description of the duties of the PA III position:

Job Duties

$ Utilize database report generating software and programs $ Research, analyze, and evaluate complex data and review budget

data $ Perform supervisory and liaison functions and duties

Id. TUVA’s FPR only contains one staffing plan, which is described in its technical proposal and valued in its cost proposal.- 44

- b etween subordinate employe es and between contractor and
government $ Interact with multiple levels of management $ Manage customer and contractor relationships and support multiple projects $ Update database records of budget information regarding initial investigations and reinves tigations $ Extract data

to prepare budget, statistics, management, survey/inspection, reconciliation and ad hoc reports $ Administer and maintain a clearance action tracking system sufficient to identify specific

clearance activities and time lines of cle arance requests, such as to accurately and timely identify the nature of clearance requests received, status, and completion of personnel security clearance and adjudication activities and actions

Id

. TUVA made similar changes and additions to a total of eighteen labor categories and corresponding job duties. Id. at 1825

- 29.

Second, given TUVA’s explanation for the decrease in its indirect labor costs, the fact that TUVA proposed a price reduction does not, as SSI asserts , “def[y] realism

. ” Pl.’s Mo t. 29.

Third, although SSI claims that “TUVA added numerous ta s ks to a given position but did not adjust the number of FTEs or the number of direct labor hours required to perform the work,”

id. , SSI has not demonstrated that the duties added would resu lt in additional work and were not simply the identification of tasks already assigned or expected of employees working within those labor categories. In other words, SSI has not provided the court with any evidence that , for example, the addition of the obligation to “[u] pdate database records of budget information regarding initial investigations and reinvestigations ” to the job duties of the PA III position was intended to describe a responsibility separate and apart from the already listed dut ies to “[ u]tilize database report generating software and programs” and “[r]esearch, analyze, and evaluate complex data and review budget data.” AR 1825.

Finally, defendant is correct in its assertion that SSI fails to identify anything irrational regarding the N NSA’s conclusion that TUVA’s staffing plan, as configure d , is efficient enough to permit the performance of the contract with fewer labor hours than contemplated by the IGCE. Rather, the fact that SSI is currently performing the contract with [. . .] fewe r FTEs than TUVA proposes in its FPR directly supports the rationality of the NNSA’s conclusion

. See AR 2573 (“ TUVA proposed [. . .] FTEs and the incumbent’s current staffing level is [. . .] FTEs. ”).

ii. Although the NNSA ’ s Evaluation of TUVA’s Staffi ng Plan Contained a Typographical Error, the NNSA Did N ot Misread the Plan

In addition to arguing that the NNSA ignored risks associated with TUVA’s staffing plan, SSI argues that the NNSA misread the plan. Pl.’s Mot. 30

- 33. According to SSI, in its R evised IPT Report

, the NNSA states:

SAVA’s cost proposal includes [. . .] FTEs listed as Personnel Security Clearance Processing Team Leads. The ‘team lead’- 45

- portion is a typo. The rate for this category is equivalent to the Personnel Security Clearance Processor. Additionally, the staffing plan confirms this typo as it lists [. . .] team lead FTEs and [. . .] processor FTEs. The typo does not impact cost, as the correct rate

was used in the calculation of direct labor.

Id. at 30 (quoting AR 2571

- 72 ). SSI contends, however, that the NNSA’s statements and conclusions are not supported by TUVA’s proposal. Id.

First, SSI asserts that SAVA did not propose [. . .] Pe r sonnel Security Clearance Processing T Ls in its cost proposal. Id. (citing AR 2114 ) . A ccording to SSI, the Personnel Security Clearance Processing TL position is neither listed in SAVA’s cost proposal

, i d. at 30 (citing AR 2114), nor listed in SAVA’s staffing plan

, id. (citing AR 1905 ) . SSI further avers that although SAVA did not propose any positions with equivalent rates, id.

, the NNSA erroneously adjusted TUVA’s proposed cost to reflect such rates, id. at 30

- 31 (citing AR 2571

- 72 )

.

Second, SSI claims that the following table, which appears in Attachment 3 to the NNSA’s Revised IPT Rep ort, misstates TUVA’s staffing plan

. Id. at 31

- 33.

Technical Evaluation of the Cost Proposal

Categories Percentage

Provided % of FTEs 14 TUVA’s Proposed

FTEs Adjudication 26% [. . .] [. . .]

Administrative 11% [. . .] [. . .]

Processors 41% [. . .] [ . . .]

Professional /

Executive

Administrative 9% [. . .] [. . .]

FOCI 5% [. . .] [. . .]

Vault 8% [. . .] [. . .]

TOTAL [. . .] [. . .]

AR 2607 (footnote added)

. According to SSI, the figures used by the NNSA in the table are not
an accurate repre sentation of those provided by TUVA. Pl.’s Mot. 32. SSI identifies the following discrepancies: (1) the NNSA lists [. . .] FTEs in Adjudication whereas TUVA lists [. . .]

, and (2) the NNSA lists [. . .] FTEs in Processing whereas TUVA lists [. . .]

. Id

. ( compar ing AR 2607 (Attachment 3) with AR 1714 )

.

14 Although the heading states that the numbers in the third column are percentages, they

are in fact numbers

— spe cifically, the number of FTEs that an offeror would have to allocate to each of the six skill set categories to satisfy historical allocations, as represented by the percentages listed in the second column.- 46

- In response to SSI’s arguments, defendant concedes that the Revised IPT Report contains a typographical error in that the NNSA erroneously state d that SAVA’s cost proposal listed [. . .]

FTEs as “Person nel Security Clearance Processing Team Leads” when it actually only listed “Personnel Security Clearance Processors.” Def.’s Cross

- Mot. & Resp. 32. However, defendant

claims that the NNSA never relied on the mis impression and therefore SSI was not prejud iced by

the NNSA’s mistake

. Id. (citing AR 2571

- 72, 4520

- 22). Next, defendant contends that the table is a comparison of the skill mix in TUVA’s staffing plan with historical values :

The first two columns show the skill set category and the historical percentage of work associated with each category indicated in the Q&A. . . . The third column shows the allocation of the offerors’ proposed FTEs based on the historical percentage. . . . The fourth

column shows the allocation of the offerors’ FTEs ba sed on their proposed staffing plans.

Id. at 33. Thus, defendant argues: “The comparison provided by [SSI] reflects no discrepancy because the staffing plan attachments provide 4 PBWS staffing areas and the Q&A identified 6 skill sets, so the table in A ttachment 3 does not reflect an apples

- to

- apples comparison.” Id.

Defendant then illustrates its point:

For instance, [SSI] notes that “Attachment 3 lists [. . .] FTEs in Adjudication. TUVA’s Staffing Plan lists [. . .] FTEs.”

. . . But [SSI] ignores the actual, substantive descriptions of the job categories contained in the Staffing Narrative. For instance, TUVA’s staffing matrix shows [. . .] Personnel Security Specialist (PSS) [ T L] IIIs under “Program Management” and another [. . .]

PSS [TL] IIIs under “Adjudication.”

. . . TU VA’s Staffing Plan Narrative explains that all [. . .] PSS III TLs support the Adjudication work.

. . . The staffing matrix also shows an administrative assistant under Adjudication, which NNSA included

in the “Administrat ive” category for the purposes of Attachment 3. Accordingly, the Staffing Plan indicates that [. . .] FTEs listed

under “ Program Management” and [. . .] FTEs listed under “Adjudication” will support the Adjudication work. Thus, Attachment 3 correctly sho ws [. . .] FTEs assigned to Adjudication.

Id. at 33

- 34. Defendant further notes that SSI’s staffing matrix was treated in the exact same

fashion. Id. at 34.

Defendant c oncludes by claiming that the NNSA’s “comparison of the labor mix against

the histor ical estimates was simply another evaluation technique to identify any significant issues with the proposed staffing plan,” id. , and that “[u]ltimately, the agency determined that both offerors’ reflected the appropriate skill mix in the appropriate labor categories,” id. (citing AR 2607, 2609).- 47

- In its reply, SSI disputes defendant’s claim that the NNSA was responsible for the typographical error. Pl.’s Reply & Resp

. 20. According to SSI

, “[ t ] he paragraph of the Revised IPT Report in question discusses P ersonnel Security Clearance Processing [ TL s] and whether or not the position should be listed as a [TL] .” Id. at 21. In addition, SSI disputes the NNSA’s explanation as to how it compared each offeror’s staffing plan to historical allocations of labor.

Id. at 21

- 22. According to SSI, the “NNSA should not have required offerors to allocate personnel into four categories” if it wanted them to use the six historical categories. Id. at 21. SSI also argues that the NNSA should not have mechanically used it s own estimates for labor or costs as a means of evaluating an offeror’s staffing plan. Id. at 21

- 22.

Defendant counters SSI’s restatement of its arguments by noting once more that the

NNSA’s typographical error had no bearing on its analysis. Def.’s Re ply 16. Defendant also disputes SSI ’s claim that the NNSA made a “mechanical adjustment” to TUVA’s staffing plan to compare it to the six categories reflected in the historical allocation that was provided to the

offeror s in the RFP Q&A

. Id. at 16

- 17. A ccording to defendant

, the NNSA never concluded

that a “ specific number of employees was necessary to perform the requirements,” nor did the

NNSA “impose a Government estimate to determine whether the staffing was ‘acceptable or unacceptable.’” Id. at 17. Defendant also reiterates the fact that the NNSA ultimately concluded that both TUVA and SSI proposed appropriate skill mixes in the appropriate labor categories.

Id.

First, the court concludes that the NNSA’s Revised IPT R eport does, as defendant

c oncedes, incorrectly state that SAVA’s cost proposal listed [. . .] FTEs as “Personnel Security Clearance Processing Team Lead [ s ]

. ” S ee AR 1714

. SAVA’s proposal only listed [. . .] FTEs as “Personnel Security Clearance Processor[s]

. ” S ee id. at 1732.

Second, the court concludes that the NNSA did not misstate TUVA’s staffing plan. The table reproduced above is not a summary of TUVA’s staffing plan f or the base year . It is instead

an evaluation of that plan derived from the NNSA’s comparison of TUVA’ s proposed FTEs to historic work allocations based on the percentage of work performed in six categories

. Furthermore, t he offerors were informed of the percentage estimates the NNSA would use in its analysis of each of the six required skill set s in the RFP ’s Q &A

. See id. at 214

, 2938

- 39. Thus,

SSI knew in advance of submitting its proposal that the NNSA would be using historical figures to review the offerors’ staffing plans. Lastly, although somewhat convoluted, defendant ’s explanation does demonstra te that

— as defendant contends

— the NNSA’s table was not meant to

be a simple reproduction of TUVA’s staffing plan.

The following table represents TUVA’s proposed staffing plan with the modifications made by the NNSA for use in its technical evaluation:

AREA Total FTEs Program Management Program Manager [. . .]

P ersonnel Security Specialist TL / III [. . .] Program Analyst III [. . .] Program Analyst II [. . .]- 48

- Program Analyst I [. . .] Personnel Security Clearance Processing TL [. . .]

Subtota l [. . .]

Processing

Administrative Review Technician [. . .] Senior Personnel Security Clearance Processor [. . .] Personnel Security Clearance Processor [. . .] Quality Assurance / Customer Service Processor [. . .]

Mail Clerk [. . .]

Lead Va ult Clerk [. . .]

Vault Clerk [. . .]

Administrative Assistant [. . .]

Subtotal [. . .]

Adjudication Personnel Security Specialist T L / III [. . .] Personnel Security Specialist II [. . .] Personnel Security Specialist I [. . .]

Administrative Assistant [. . .]

Subtotal [. . .]

Foreign Ownership, Control or Influence Security Specialist [. . .] Security Assistant [. . .]

Subtotal [. . .]

Total All [. . .]

Id. at 1714. Under “Program Management,” TUVA listed [. . .] PSS T L IIIs

. Id. Because the staffing plan’s narrative section stated that these position s support adjudication work and because

TUVA’s staffing plan listed an additional [. . .] PSS T L IIIs under “Adjudication,” the NNSA combined the listings under “Adjudication.” I d. Thus, (1) [. . .] PSS T L IIIs were subtracted from “Program Management,” reducing the total number of FTEs in that category from [. . .] to [. . .]

, and (2) [. . .] PSS T L IIIs were added to “Adjudication,” increasing the total number of

PSS T L IIIs from [. . .] to [. . .] and increasing the total number of FTEs in that category from [. . .] to [. . .] . Next, because TUVA’s plan listed an Administrative Assistant under both “Adjudication,” and “Processing,” the NNSA combined the listings u nder “Processing.” Thus, [. . .] Administrative Assistant was subtracted from “Adjudication,” [. . .] the total number of FTEs in that category from [. . .] to [. . .]

, and (2) [. . .] Administrative Assistant was added to “Processing,” increasing the to tal number of FTEs in that category from [. . .] to [. . .]

. Id. ; s ee also id. at 2939 (“ The comparison was done to identify potential problems with the proposed staffing plan, not if the staffing plan was an exact match to the historic percentages provid ed. Therefore, looking simply at the Staffing Plan for either offeror under the heading of ‘Processing’ would not be reflective of what is in the Government[’]s comparison table.”).- 49

- Finally , because the NNSA analyzed TUVA’s and SSI’s staffing plans in t he same

fashion

, SSI cannot claim to have been prejudiced in this regard. See id. at 2938 (“The Agency evaluated the actual staffing plan proposed by both TUVA, LLC (TUVA) and Synergy Solutions, Inc. (SSI). The Agency did not modify, adjust, or alter the staffing plans for the purposes of evaluation.”)

, 29 39 (“No adjustments were made to either offer o r’s proposal as none were needed, they both proposed a reasonable and realistic amount of FTEs under each labor
category. ” )

, 2940 (“The Government applied th e same comparison to SSI ’ s cost proposal using [. . .] for the total number of FTEs proposed.”).

d. The NNSA R ationally Concluded That TUVA Could Meet the Technical Requirements

Fourth , SSI argues that the NNSA erroneously concluded that TUVA was cap able of meeting the RFP’s technical requirements. Pl.’s Mot. 33

- 34. Specific al ly, SSI contends that the NNSA should have recognized that TUVA’s proposal contained insufficient FTEs or labor

hours. Id. at 33. According to SSI, TUVA proposed [. . .] dire ct labor hours for the entire contract, which included [. . .] labor hours for the base period. Id. (citing AR 1714, 1744 ) . By comparison, SSI claims that it proposed [. . .] hours for the entire contract, which included [. . .] hours for the base period

. Id. (citing AR 1389 )

. In addition, SSI avers that although the N N SA acknowledged that TUVA proposed fewer hours than the IGCE and SSI, it nevertheless concluded that TUVA’s proposed hours and FTEs were sufficient. Id. (citing AR 2570

- 71 ) . SSI

argues that TUVA’s technical approach would not enable it to perform the NNSA’s requirements

with so few FTEs and labor hours and that the NNSA failed to adequately explain its contrary finding. Id. at 34.

Defendant claims that the NNSA reasonably concluded t hat TUVA’s proposal to staff fifty

- five FTEs

— as compared to SSI’s “staffing of the incumbent contract with [. . .] FTEs,”

—

was sufficient to meet the PBWS’s technical requirements

. Def.’s Cross

- Mot. & Resp. 35 (citing

AR 2546

- 54). Defendant further claims that the NNSA’s conclusion is supported by “a thorough

evaluation of TUVA ’ s technical approach including its staffing plan, which NNSA determined was superior to [SSI’s].” Id.

In its reply, SSI maintains that the NNSA’s cost realism analysis was unreas onable and that it is of no moment that SSI is currently performing the contract with [. . .] FTEs as opposed

to the fifty

- five FTE s TUVA proposes. 15 Id. at 23. SSI further claims that, but for a delay in obtaining security clearances for its employees, i t would have more FTEs working on the

contract. Id. In addition, SSI states that the solicited contract contains more requirements than

the incumbent contract as a result of HSPD

- 12, and that therefore defendant ’s comparison of TUVA’s proposal with SSI’s incumbent staffing levels is unavailing. Id. Lastly, SSI complains

that the NNSA’s Revised IPT Report lacks any meaningful analysis. Id. Specifically, SSI claims that nowhere in the report does the NNSA discuss the number of hours proposed for each

po sition, the number of hours proposed for a given contract period, the number of FTEs TUVA proposed, or the number of FTEs assigned to a particular labor category

— all of which SSI

15 According to SSI, it currently has [. . .] FTE s on the contract, not [. . .] as defendant claims. Pl.’s Reply & Resp. 23. Assuming plaintiff is correct, the court’s analysis and ultimate holding remains unchanged.- 50

- claims is necessary for the analysis to be meaningful. Id. Because the NNSA failed to conduct such analysis, SSI contends, TUVA wrongly received an “Excellent” rating for Criterion 2. Id.

at 24.

According to defendant

, the NNSA’s analysis, which included “(1) comparing TUVA’s proposed labor allocation to historic allocations, (2) verifying that all tasks in the [PBWS] were assigned to labor categories, and (3) comparing TUVA’s proposed staff of [. . . ] employees to historic staffing ranges,” satisfied both FAR and RFP requirements. Def.’s Reply 17

- 19. Furthermore, in response to what it characterizes as two new arguments, defendant contends that

the NNSA did consider the additional duties imposed by HSPD

- 12 because TUVA’s FPR not only assigned HSPD

- 12 tasks to [. . .] of its Program Analyst II positions and to its staff of [. . .] Personnel Security Clearance Processors, but TUVA provided the NNSA with additional explanation regarding those assignments. Id. at 18. Next

, defendant once more emphasizes that

the NNSA’s conclusion that TUVA could adequately perform the contract with [ . . .] FTEs was reasonable given the fact that SSI was currently doing the job with only [. . .] FTEs

. Id. In addition, defendant argues that SSI cannot, for the first time in its reply brief, claim that because the agency failed to adequately addres s the inherent risks in TUVA’s staffing plan, TUVA should not have received a rating of “Excellent” for Criterion 2. Id. at 19. Finally, defendant

note s that SSI fails to recognize TUVA’s other significant strengths in Criterion 2 , such as “its [PM] Mana ger, assignment of staff to ‘Other Services,’ and travel interview strategy.” Id. (citing

AR 2547

- 48).

The NNSA ’s conclusion that TUVA’s propos al satisf ied Criterion 2 was reasonable.

That the NNSA ’s decision was based, in part, on its determination th at a staffing plan with fewer FTEs than proposed by SSI was acceptable does not render its decision irrational. Furthermore,

the NNSA provided an extremely detailed explanation as to why it arrived at its decision. In its

R evised IPT R eport

, the NNSA pro vides an eight

- page narrative

- rich explanation as to why TUVA received a rating of “Excellent” for Criterion 2

. See AR 2546

- 54. First, the NNSA

described how it would e valuat e TUVA’s staffing plan :

The Government will evaluate the Offeror’s Staffing P lan to determine the degree to which the proposed staffing levels and skill mix are likely to result in efficient and successful performance of the PBWS. Additionally, the Offeror’s approach to staffing during workload fluctuations will be evaluated to de termine the degree to which the approach is likely to result in continuity and successful accomplishment of the PBWS during workload fluctuation periods.

Id. at 2546. Then, i n its evaluation, the NNSA provided a detailed explanation as to why the

staffin g plan was assessed as having two significant strengths and two strengths. Id. at 2547

- 49.

The NNSA also explained, in nine separate comments, why it no longer found that TUVA’s staffing plan suffered from nine weaknesses. Id. at 2550

- 54.- 51

- Second, the NNSA explained how it would evaluate TUVA’s PM qualifications:

The Government will evaluate the extent to which the proposed [PM] possesses the education and relevant experience to effectively execute the duties and responsibilities of the [PM]

considerin g the nature, size and scope of the work required in the PBWS, including consideration of the Minimum Personnel Qualifications for the [PM] position at Section J, Attachment 6. The Incumbent must possess a Bachelor’s degree in Business

Administration/Mana gement. A Bachelor [’s] degree in any other discipline may be substituted with five years work experience as a Manager in a comparable assignment. Ten years of experience and a comparable assignment in Safeguards and Security may be

substituted for the de gree and must include three years of experience managing a Safeguards and Security Program at the second tier or higher level with a strong background in Personnel Security. The resume of the proposed [PM] , without the documentation required in provision L.23(b)(2)(B) (if not currently employed by the Offerer), will be evaluated; however, the omitted documentation (letter of intent) will be noted as a performance

r isk.

Id. at 2546. The n, the NNSA provided a detailed explanation as to why TUVA’s proposal was assessed as having one significant strength in this area

. Id. at 254 8

- 49

. In light of the NNSA’s extensive, reasoned analysis, SSI fails to demonstrate that the NNSA’s evaluation of TUVA’s proposed staffing plan was in any way irrational.

4. SSI Fa ils to Establish That b ut for the NNSA’s “Mistakes,” SSI Would Have Been

Awarded the Contract

SSI ’s final contention is that but for the “ mistakes ” the NNSA made in its assessment of TUVA’s proposal, SSI would have been awarded the contract. Pl.’s Mot. 3 5. The court has already concluded that the NNSA’s evaluation of TUVA’s proposal was, for the most part, rational, and to the extent that the NNSA erred, SSI was not prejudiced by the error. However, for the sake of completeness, the court addresses SSI’ s argument. According to SSI: (1) only

SS I and TUVA were deemed technically acceptable by the NNSA, id. (citing AR 2534 ) ; (2) the

S SA deemed SSI’s proposal superior in two of the four technical evaluation criteria, id. (citing

id. at 2618

- 19 ) ; (3) if the NNSA’s errors with respect to TUVA’s ratings were corrected, the

SSA’s decision would change, id. ; and (4) even though TUVA’s evaluated probable cost was [. . .] million less than SSI’s, if the NNSA’s cost realism analysis were corrected in the manner

sug gested by SSI, the result would be an upward adjustment to TUVA’s probable cost coupled with a finding by the NNSA that TUVA lacked a sufficient understanding of the contract’s requirements, id.

Defendant argues that SSI cannot succeed in its protest be cause it fails to demonstrate

that but for the NNSA’s purported errors , SSI would have been awarded the contract. Def.’s- 52

- Cross

- Mot. & Resp. 35

- 39. According to defendant , even if the court accepted SSI’s allegations with respect to Criterion 2 ( Staffing Plan and Program Manager Qualifications )

, Criterion 3 ( Corporate Experience), and Criterion 4 (P ast Performance), the NNSA would still have concluded that TUVA’s proposal was superior with respect to the two most important criteria

— Criterion 1 ( Technical A pproach ) and Criterion 2 ( Staffing Plan and Program Manager Qualifications )

. Id. at 36

- 38. In the same vein, defendant contends that even if the court accepted SSI’s claim that the NNSA’s cost realism analysis was flawed, and even if adjustments

were mad e to TUVA’s labor rates, TUVA’s proposal would still be less expensive than SSI’s.

Id. at 38

- 39. In defendant ’s view, even if all of SSI’s recommendations were adopted, “TUVA’s proposal would remain technically superior and less expensive.” Id. at 39 (c iting AR 2619).

SSI disputes defendant ’s argument that even if the court accepted all of SSI’s claims, TUVA would still have been awarded the contract. Pl.’s Reply & Resp

. 24

- 27. According to SSI, the fact that the instant procurement called for a best value trade

- off meant that SSI had a substantial chance of being awarded the contract but for the NNSA ’s errors. Id. at 25. Specifically, SSI argues that “[w]here, as here, the agency is required to conduct a best value tradeoff . . . and an agency’s re evaluation of proposals would lead to new ratings in multiple categories, the source selection authority should be required to redo the best value tradeoffs based on the new ratings and the evaluation scheme.” Id. In addition, SSI claims that defendant

f

ails to grasp that SSI is challenging the NNSA ’s entire cost realism analysis, not just its acceptance of TUVA’s probable cost estimate. Id. at 25

- 26. SSI concludes that if all of the procurement errors were corrected, the change in SSI’s and TUVA’s resp ective ratings would be dramatic, thus demonstrating the significant prejudice SSI suffered. Id. at 26

- 27

.

In its reply, defendant again claims that even if it accepted all of SSI’s allegations, no

further trade

- off would be merited because “TUVA would remain lower in price and superior in merit.” Def.’s Reply 19. In addition, defendant notes that although SSI claims to challenge the entire cost realism analysis, its primary argument relates to TUVA’s proposal to retain [. . .] of

SSI’s incumbent staff at certain rates. Defendant then responds to th at argument by stating that

even if the NNSA were to increase TUVA’s rates to match SSI’s, TUVA would still have the

lower

- cost proposal. Id. at 20 (citing AR 2573).

As noted above, in addition to demonstr ating that the NNSA’s decision either lacked a

rational basis or that the procurement process violated a regulation or procedure, SSI must demonstrate that it was prejudiced by the NNSA’s errors . Thus, SSI must show that but for the NNSA’s actions, it wou ld have been awarded the contract. As defendant’ s argument demonstrates, SSI has not met its burden. First, SSI does not claim that the NNSA’s evaluation of the most important criteri on

— Criterion 1 ( Technical Approach )

— was flawed. TUVA’s proposal was ra t ed “Excellent” in that category while SSI’s proposal was only rated “Good.”

S econd, although SSI contests its receipt of a “Satisfactory” rating with respect to Criterion 2 ( Staffing Plan and Program Manager Qualifications ) and also claims that the NNS A’s

evaluation of TUVA’s proposal pursuant to Criterion 3 (C orporate E xperience ) and Criterion 4 (P ast P erformance) w as irrational , SSI has not shown that but for this determination SSI would

have been awarded the contract. In other words, SSI’s argument that it would have been awarded the contract if (1) it had received a higher rating with respect to Criterion 2 and (2)- 53

- TUVA had received lower ratings with respect to Criterion 3 and Criterion 4, is based on mere conjecture and supposition, rather than co ncrete evidence. As such, it is unpersuasive. See Glenn Def. Marine (ASIA) , 720 F.3d at 912 (“[Plaintiff

- Appellant] does not provide anything but conjecture that even with a ‘Satisfactory’ rating it would have had a substantial chance of prevailing in th e bid. The Court of Federal Claims did not clearly err in finding that [Plaintiff

Appellant] had not shown prejudice from being rated ‘Less than Satisfactory’ rather than ‘Satisfactory.’”)

.

F inally, even if the court elevates cost over technical criteri a, and accepts SSI’s argument that TUVA’s proposed labor rates were too low and therefore unrealistic

— which the court does

not

— SSI’s proposed price would remain significantly higher than TUVA’s proposed price. In its analysis, the NNSA increased TUVA’s no nmanagement labor rates by [. . .] % , which increased the cost of TUVA’s overall proposal by [. . .] %

. See AR 2573. Even with this adjustment, however, SSI’s proposed price of $28.6 million was still more than 14% higher than TUVA’s adjusted proposed pric e of $24.99 million. See id. at 2619.

C. SSI I s Not Entitled to Injunctive Relief

In this case, SSI fails to demonstrate that the NNSA’s decision to award TUVA the

contract was “ arbitrary, capricious, an abuse of discretion, or otherwise not in acco rdance with

law

. ” Banknote Corp. of Am. , 365 F.3d at 1350. In other words, SSI has not succeeded on the merits of its protest. Thus, the court need not, and will not, consider whether SSI has satisfied the other factors for obtaining injunctive relief: (1) “ whether the plaintiff will suffer irreparable harm if the court withholds injunctive relief; [ ( 2 ) ] whether the balance of hardships to the respective parties favors the grant of injunctive relief; and [ ( 3 ) ] whether it is in the public interest
to gra nt injunctive relief. ” PGBA, LLC , 389 F.3d at 1228

- 29.

IV . CONCLUSION

The court has considered all of the parties’ arguments. To the extent not discussed herein, they are unpersuasive, without merit, or are unnecessary for resolving the matters

curre ntly before the court.

In sum, SSI h as failed to carry its burden of showing that the NNSA ’s decision to award

the contract to TUVA was arbitrary, capricious, or contrary to law. Therefore, the court

DENIES SSI’s m otion for judgment on the administrative record, and GRANTS defendant’s

cross

- motion for judgment on the administrative record. No costs. The clerk is directed to enter judgment accordingly.- 54

- The court has filed this opinion under seal. The parties shall confer to determine proposed redaction s that are agreeable to all parties. Then, no later than September 26

, 2017, the parties shall file a joint status report indicating their agreement with the proposed redactions

and attaching a complete copy of the court’s opinion with all redactions clea rly

indicated.

IT IS SO ORDERED.

s/ Marga r et M. Sweeney

MARGARET M. SWEENEY Judge