# In the United States Court of Federal Claims

BID PROTEST No. 18-1559C (Filed Under Seal: March 19, 2019 | Reissued: March 29, 2019) *

KSC BOSS ALLIANCE, LLC,

Plaintiff,

v.

THE UNITED STATES OF AMERICA,

Defendant,

and

PAE-SGT PARTNERS, LLC,

Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Keywords: Pre-Award Bid Protest; 28 U.S.C. § 1491; Exclusion from the Competitive Range; FAR 15.306; Judgment on the Administrative Record; NASA.

Aron C. Beezley , Bradley Arant Boult Cummings LLP , Washington, DC, for Plaintiff. Patrick R. Quigley and Sarah S. Osborne , Bradley Arant Boult Cummings LLP, Washington, DC, Of Counsel.

Elizabeth Anne Speck , Senior Trial Counsel, Commercial Li tigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, for Defendant, with whom were Douglas K. Mickle

, Assistant Director, Robert E. Kirschman, Jr. , Director, and Joseph H. Hunt , Assistant Attorney General. Brian M. Stanford , Senior Attorney, and Lisette S. Washington , Attorney, NASA Headquarters, Office of the General Counsel, Washington, DC, Of Counsel.

Anuj Vohra , Crowell & Moring LLP, Washingto n, DC, for Defendant-Intervenor. James G. Peyster
, Olivia L. Lynch

, Michelle D. Coleman

, Sarah A. Hill , and Payal P. Nanavati , Crowell & Moring LLP, Washington, DC, Of Counsel.

* This opinion was originally i ssued under seal and the parties were given the opportunity to request redactions. The opinion is now reissued with redactions of three offerors’ names denoted as references to Offeror A, Offeror B, and Offeror C.2 OPINION AND ORDER

KAPLAN, Judge.

In this pre-award bid protest, Plaintiff KSC Boss Alliance, LLC (“KBA”) challenges as arbitrary and capricious NASA’s decision to ex clude it from the competitive range in a procurement for “baseport operations and spacep ort services” at John F. Kennedy Space Center in Cape Canaveral, Florida. 1 Currently before the Court are cross-motions for judgment on the administrative record filed by KBA on the one hand, and the government and DefendantIntervenor PAE-SGT Partners, LLC (“PSP”), on the other.

For the reasons discussed below, the Court finds that KBA’s arguments lack merit. KBA’s motion is therefore DENIED and the government and PSP’s cross-motions are GRANTED

.

BACKGROUND

I. The Solicitation

NASA issued Solicitation NNK18619079R (“ the Solicitation”) on November 1, 2017. AR Tab 15 at 13589. The Solicitation requested proposals for the Kennedy Space Center Base Operations and Spaceport Services Contract(“the BOSS Contract”) . Id. at 13582, 13589. Under the BOSS Contract, the contractor would provide “mission-focused institutional support at the John F. Kennedy Space Center and NASA facilities on Cape Canavera l Air Force Station.” Id. at 13720. Specifically, the BOSS contractor’s duties would include managing infrastructure and utilities at Kennedy Space Center as well as coor dinating the use of vari ous facilities by several institutional spaceport “users” including NASA, the Air Force, private entities, and other contractors. See generally AR Tab 15 at 13743–803; see i d. at 13720 (describing support services as including “operations, maintenance, and engineering (O M&E) of assigned facilities, systems, equipment, and utilities (FSEU); work management and Spaceport integration functions; mission support and la unch readiness management; project management and design engineering services; constructi on support services; and institutiona l logistics”); id. at 13906 (list of OM&E organizational users); AR Tab 38 at 27797 (list of baseline customers). The Solicitation defined the period of performance as an initial two-year base period followed by three two-year option peri ods. AR Tab 15 at 13604.

The Solicitation contemplated a “single aw ard, fixed-price contract with a costreimbursable Contract Line Item Number (‘C LIN’) and a fixed-price Indefinite Delivery Indefinite Quantity (‘IDIQ’) component.” AR Tab 58a at 28303. The cost-reimbursable CLIN applied to the “baseline work” set forth in th e Performance Work Statement (“PWS”). That baseline work included:

1 KBA is a joint venture of Kellogg Brown and Root Services, Inc. (“KBR”) and Yang Enterprises, Inc. (“YEI”). Redacted Compl. ¶ 1, ECF No. 22. YEI is a subcontractor on the incumbent contract. AR Tab 38 at 27893.3 responding to Service Orders (SOs) and Baseline Repairs and Replacements (BRRs); accomplishing recurring services such as Preventive Maintenance (PM), Programmed Maintenance (PGM), and Pred ictive Testing and Inspection (PT&I) that involve routine, periodic maintenan ce, and incidental repair requirements associated with assigned FSEU [i.e., facilit ies, systems, equipment and utilities]; operations that require continuous pr esence of qualified personnel during a specified period; work management and Sp aceport integration; logistics; system engineering and engineering services ; and project management services.

AR Tab 15 at 13720–21. The IDIQ component would include “work which cannot be adequately defined in advance for inclusion w ith baseline work.” Id. at 13721.

II. The Solicitation’s Source Selection Pr ocedures and Evaluation Factors

A. Source Selection Procedures

Under the Solicitation, the awar d would be made to the responsible offeror whose proposal represented the best value to the gove rnment. Id. at 13686. The Solicitation specified that the BOSS procurement would use competitive negotiated acquisition pr ocedures pursuant to FAR 15.3 and NASA FAR Supplement (“NFS”) 1815.3 and that NASA would also use the tradeoff process described in FAR 15.101-1. Id. at 13707.

The Solicitation warned prospective offerors that their “initial proposal[s] should contain [their] best terms from a cost or price and technical standpoint,” and indica ted that NASA did not intend to hold discussions. I d. at 13686. Nonetheless, NASA re served the right to conduct discussions if the contracting offi cer “later determine[d] them to be necessary.” Id. Moreover, in the event discussions were held—which would re quire the agency to es tablish a competitive range pursuant to FAR 15.306(c)—the contracting officer could “limit the number of proposals in the competitive range to the greatest number that [would] permit an efficient competition among the most highly ra ted proposals.” Id.

NASA’s Source Evaluation Board (“SEB”) w ould conduct evaluations of the proposals pursuant to NFS 1815.370. Id. at 13707. The SEB wa s comprised of five voting members, six nonvoting members (including the contracting officer , Kelly J. Boos), si x evaluators, several consultants, and five ex officio members. AR Tab 11 at 13528–29.

B. Evaluation Factors

As set forth in the Solicitation and in accordance with NFS 1815.304-70, the SEB would evaluate proposals based on three factors: (1) Mission Suitability; (2) Past Performance; and (3) Price. AR Tab 15 at 13707. The Price factor wa s more important than the Mission Suitability factor, which was more important than the Past Performance factor. Id. The Mission Suitability and Past Performance factors, “when combined, [wer e] approximately equal to the Price factor.” Id. The Solicitation stated that unless it was not in NASA’s best interest, it would evaluate price based on the total price for all options plus th e total price for the ba se period. Id. at 13708.4 1. Mission Suitability

The Mission Suitability fact or was comprised of three subfactors: (1) Management Approach; (2) Technical Approach; and (3) Small Business Utilization. Id. at 13708. The subfactors would be individually evaluated, num erically scored, and weighted “using the adjectival rating, definitions, and percentile ranges at NFS 1815.305(a)(3)(A).” Id. Those ratings, definitions, and percentile ranges ar e represented in the chart below:

AR Tab 38 at 27802; see also NFS 1815.305(a)(3)(A). Offerors could earn up to 1,000 points as part of the Mission Su itability evaluation—525 points for Ma nagement Approach, 375 points for Technical Approach, and 100 points for Small Business Utilization. AR Tab 15 at 13708.

As explained by the government, under the Solicitation’s evaluati on procedures, the percentile scores assigned to each subfactor would be multiplied by the points assigned to arrive at the total for each subfactor. See Def.’s Cross-Mo t. for J. on the Admin. R. & Resp. to Pl.’s Mot. for J. on the Admin. R. (“Def.’s Mot.”) at 4–5, ECF No. 36 (citing AR Tab 58c.6 at 28508). “For example, a score of 91 for the Management Approach [subfactor], would be multiplied as a percentage of 525 available point s (.91 x 525 = 477.75 points).” Id.

2. Past Performance

The Solicitation provided that, co nsistent with FAR 15.305(a)(2) and NFS 1815.305(a)(2), NASA would “evaluate [offerors’] a nd proposed major subcontractors’ recent performance of work similar in size, content, and complexity to the requirements of [the Solicitation].” AR Tab 15 at 13711. Based upon that evaluation, NASA would then assign confidence ratings as provided in NFS 1815.305(a )(2): Very High, High, Moderate, Low, Very Low, or Neutral. Id.; see also NFS 1815.305(a)(2). The Solicitation did not contemplate that incumbent contractors or subcontractors on the pr edecessor contract would receive any particular advantage when evaluating the Past Performance factor.5 3. Price

Price—the most important factor—was to be evaluated in accordance with FAR Subpart 15.4. The Solicitation stated that NASA would pe rform a price analysis consistent with FAR 15.404-1(b). Id. NASA reserved the right to reject a proposal with unbalanced pricing. Id. at 13686. The Solicitation did not require NASA to conduct a price realism analysis.

III. The SEB’s Evaluation and the Competitive Range Determination

The Solicitation required that all proposal s be fully submitted by December 29, 2017. Id. at 13583. KBA and four other offerors submitted timely proposals. AR Tab 58a at 28308. 2 Those proposals were then reviewed by the SEB in acco rdance with the evaluation scheme described above.

On April 11, 2018, the SEB presented the resu lts of its initial eval uation to the Source Selection Authority (“SSA”). AR Tab 38 at 277 87. The presentation summarized the evaluation factors as well as the ratings and scores achie ved by the offerors. Id. at 27798–803. The SEB also detailed the strengths and weaknesses assigned to each offeror as part of the Mission Suitability evaluation and the reasons for those findings. Id . at 27804–40. The presentation further explained the reasoning for the “Very High” confidence rati ng assigned for each offeror’s past performance and provided a summary of the total evalua ted price of all offerors. Id. at 27841–51.

In the “Final Summary” section of its presen tation, the SEB provided a chart detailing the offerors’ Mission Suitability adj ectival ratings and scores, thei r Past Performance ratings, and their total evaluated prices:

Id. at 27853.

2 The other offerors were Offeror A, Offeror B, PSP, and Offeror C. AR Tab 38 at 27790. C A

B6 The contracting officer decided during the ev aluation process that discussions should be held. Accordingly, FAR 15.306 (c) required the es tablishment of a compet itive range composed of the most highly rated proposals. AR Tab 39 at 27913. The SEB “recommended that the Government hold discussions with Offeror A, Offeror B, and PSP, which the SEB determined to be the most highly rated proposals” pu rsuant to FAR 15.306(c). Id. at 27913–14.

On April 12, 2018, the contracting officer prepared a five-page memorandum explaining the rationale for her competitive range determin ation. See generally id. She summarized the performance of each offeror’s proposal in a chart reflecting the SEB’s evaluation, as follows:

Id. at 27915.

In her memorandum, the contracting officer pr ovided an overview of the ratings assigned to each offeror and an explanation of her comp etitive range determination. She observed that Offeror A had the highest Mission Suitability score but that it also had th e highest price. Id. at 27915–16. Offeror B had the second highest Missi on Suitability score, but discussions were needed to determine whether its proposed pr ice was accurate. Id. at 27916. PSP had the third highest Mission Suitability score and the lowest price. Id. The contracting officer opined that “[d]iscussions would likely enhance all three proposals, thereby increasing competition, which maximizes the Government’s ability to obtain the best value.” Id. Although the prices offered by Offeror B and PSP might increase if their proposals were revised, she observed, their proposals, along with that of Offeror A, “represent[ed] th e most highly rated after initial evaluation.” Id. She found this conclusion supported by the existe nce of a significant gap between the Mission Suitability scores of the t op three proposals and those of Offeror C and KBA. Id.

The memorandum also included a discussion of the ratings assigned to KBA’s proposal and an explanation for its exclusion from the co mpetitive range. The contracting officer observed that KBA’s Mission Suitability score “was the se cond lowest of the five proposals.” Id. at 27916. She noted that “KBA was not among the most highly rated proposals when considering the evaluation results of all factors.” Id. In particular, and as describe d below, she explained that the SEB had “identified several Basis of Estimate area s that demonstrated a lack of understanding in various resource areas.” Id. In a ddition, and as also explained be low, she noted that the SEB had concluded that KBA’s “approach to managing the established counts” was “inappropriate.” Id.

The contracting officer determined that itwould not be worthwhile to engage in discussions with KBA to address the weaknesses in its proposal. Sh e opined that “[e]ven if KBA A

B

C7 were to correct these weaknesses as a result of discussions, wit hout any strengths or significant strengths in the Management and Technical subf actors, it is highly unlik ely that discussions would result in KBA substantially increasing it s Mission Suitability scor e without significant proposal revisions.” Id. And, th e contracting officer observed, KBA’s evaluated price of $658.3 million was the second highest evaluated price, wh ich the contracting officer concluded made the possibility of any tradeoff unlikely. Id.

IV. KBA’s GAO Protest

On April 16, 2018, NASA notified KBA that its proposal was not among the most highly rated proposals and was not included in the comp etitive range. See gene rally AR Tab 40; see also AR Tab 51 at 28049. KBA requested a pr e-award debriefing on April 18, 2018. AR Tab 51 at 28049; AR Tab 54 at 28093. NASA debriefed KBA on April 25, 2018. AR Tab 54 at 28093.

On May 4, 2018, KBA filed a protest w ith GAO. AR Tab 55. Relying upon GAO’s decision in Pinnacle Solutions, Inc., B-414360, 2017 CPD ¶ 172 (Comp. Gen. May 19, 2017) (“Pinnacle”), KBA contended that NASA’s competitive range de termination was arbitrary and capricious because the contracting officer, accordi ng to KBA, “did not look behind the scores or adjectival ratings,” and because “the competitive range determination did not document a reasoned consideration of the actual evaluation findings.” See id. at 28142; see also id. at 28145 n.7, 28146 (citing Pinnacle in supportof argument that the agency failed to meaningfully consider price).

GAO denied the protest on July 27, 2018. AR Tab 71 at 60112. It concluded that NASA’s “underlying evaluation of KBA’s proposal was reasonable and in accordance with the stated evaluation criteria.” Id. at 60125. It also rejected KBA’s argument that the contracting officer made the competitive range determination “solely on the basis of point scores or rating.” Id. “[R]ather,” GAO concluded, she “was fully aw are of and compared the proposals against one another on a qualitative basis for each evaluation criteria.” Id. The contracting officer did not “overemphasize the significan t weaknesses and weaknesses a ssigned to KBA’s proposal,” GAO explained. Id. at 60125 n.14. Instead, she merely “noted these as [part of the] rationale as to why the proposal was not among the most highly rate d.” Id. In sum, GAO concluded that the competitive range determination “was reasonable” and “within the agency’s discretion.” Id. at 60124.

V. This Action

On August 6, 2018, ten days after GAO reject ed KBA’s protest, NASA awarded the BOSS contract to PSP, Defendant -Intervenor herein. Press Rel ease, Nat’l Aeronautics & Space Admin., NASA Awards Base Operations, Spaceport Services Contract at Kennedy Space Center (Aug. 6, 2018), available at https://www.nasa.gov/pr ess-release/nasa-awards-base-operationsspaceport-services-contract-at- kennedy-space-center. Two months later, on October 9, 2018, KBA filed the present protest. Compl., ECF No. 1.

In its pleadings, KBA challenges NASA’s co mpetitive range determination on several grounds. First, it contends that NAS A relied too heavily on the adjec tival ratings and point scores assigned to the proposals and that it failed to adeq uately document the reasons for its competitive8 range determination. KBA also contends that th e point scores themselves were distorted and arbitrary, id. ¶¶ 18–31, and, further, that NASA’s determination does not document a meaningful consideration of price, id. ¶¶ 32–38. Finally, KBA alleges that se veral of the weaknesses that NASA assigned to the proposal under the Mana gement Approach and Technical Approach subfactors were unjustified. Id. ¶¶ 39–63.

On October 10, 2018, contract awardee PSP file d a motion to intervene. ECF No. 15. The Court granted the motion the next day. ECF N o. 16. KBA filed its motio n for judgment on the administrative record on November 6, 2018 (ECF No. 31), and cross-motions from the government (ECF No. 36) and PSP (ECF No. 35) followed. The cross-motions have been fully briefed. Oral argument was held on February 27, 2019.

DISCUSSION

I. Subject-Matter Jurisdiction

The Court of Federal Claims has jurisdicti on over bid protests in accordance with the Tucker Act, 28 U.S.C. § 1491, as amended by th e Administrative Dis pute Resolution Act of 1996 § 12, 28 U.S.C. § 1491(b). Specifically, the C ourt has the authority “to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procur ement or a proposed procurement.” 28 U.S.C. § 1491(b)(1); see also Sys. Application & Techs., Inc. v. United States, 691 F.3d 1374, 1380–81 (Fed. Cir. 2012) (observing th at § 1491(b)(1) “gra nts jurisdiction over objections to a solicitation, objections to a proposed award, objecti ons to an award, and objections related to a statutory or regulatory violation so long as these objections are in connection with a procurement or proposed procurement”).

To possess standing to bring a bi d protest, a plainti ff must be an “inter ested party”—i.e., an actual or prospective bidder (or offeror) who possesses a dir ect economic inte rest in the procurement. Sys. Application & Techs., Inc ., 691 F.3d at 1382 (citing Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009)); s ee also Orion Tech., Inc. v. United States, 704 F.3d 1344, 1348 (Fed. Cir. 2013). An offeror has a direct economic interest if it suffered a competitive injury or prejudice as a result of an alleged error in the procurement process. Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002) (holding that “prejudice (or injury) is a necessary element of standing”); see also Weeks Marine, Inc., 575 F.3d at 1359.

In a pre-award protest, to possess the direct economic inte rest necessary for standing, a protester must have suffered a non-trivial competi tive injury that can be addressed by judicial relief. See Weeks Marine, Inc., 575 F.3d at 1361–62. Even more specifically, in a pre-award, post-evaluation protest, the protes ter meets this standard if, abse nt the alleged errors, it would have a “substantial chance” of receiving the award; that is, if the protester “could have likely competed for the contract” but for the alle ged errors. Orion Tech., 704 F.3d at 1348–49. The Court assumes well-pled allegations of error to be true for purposes of the standing inquiry. Square One Armoring Serv., Inc. v. United Stat es, 123 Fed. Cl. 309, 323 (2015) (citing Digitalis9 Educ. Sols., Inc. v. United States, 97 Fed. Cl . 89, 94 (2011), aff’d, 664 F.3d 1380 (Fed. Cir. 2012)).

KBA, an actual offeror, challenges its ex clusion from the competitive range, a procurement decision falling within the Court’s “broad grant of jurisdiction over objections to the procurement process.” Sys. Application & Techs., Inc., 691 F.3d at 1381. Moreover, KBA has sufficiently alleged a direct economic interest in the procurem ent. Taking the allegations of error to be true—as it must to determine standi ng—the Court finds that KBA “could likely have competed for the contract” in the absence of the alleged errors, because it would likely have proceeded to the competitive range stage and en gaged in discussions. Accordingly, KBA is an interested party and the C ourt has subject-matter juri sdiction over its claims.

II. Motions for Judgment on the Administrative Record

Parties may move for judgment on the admini strative record pursuant to Rule 52.1 of the Rules of the Court of Federal Claims (“RCFC” ). Pursuant to RCFC 52.1, the Court reviews an agency’s procurement decision based on the admi nistrative record. See Bannum, Inc. v. United States, 404 F.3d 1346, 1353–54 (Fed. Cir. 2005). The court makes “factual findings under RCFC [52.1] from the record evidence as if it were conducting a trial on the record.” Id. at 1357. Thus, “resolution of a motion respecting the administrative record is akinto an expedited trial on the paper record, and the Court must make fact findings where necessary.” Baird v. United States, 77 Fed. Cl. 114, 116 (2007). The Court’s inquiry is “whether, given a ll the disputed and undisputed facts, a party has met its burden of proof based on the evidence in the record.” A&D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131 (2006). Unlike a summary judgment proceeding, genuine issues of material f act will not foreclose judgmen t on the administrative record. Bannum, Inc., 404 F.3d at 1356.

III. Scope of Review of Procurement Decisions

The Court reviews challenges to procurement decisions under th e same standards used to evaluate agency actions under the Admi nistrative Procedure Act, 5 U.S.C. § 706 (“APA”). See 28 U.S.C. § 1491(b)(4) (stating that “[i]n any act ion under this subsection, the courts shall review the agency’s decision pursuant to the stan dards set forth in sectio n 706 of title 5”). Thus, to successfully challenge an agency’s procurem ent decision, a plaintiff must show that the agency’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Bannum, Inc., 404 F.3d at 1351.

This “highly deferential” sta ndard of review “requires a re viewing court to sustain an agency action evincing rational reas oning and consideration of rele vant factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000) (citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974)). As a result, where an agency’s action has a reasonable basis, the Court cannot substitute its judgment for that of the agency. See Honeywell, Inc. v. United States , 870 F.2d 644, 648 (Fed. Cir. 1989) (holding that as long as there is “a reasonable basis for the agency’s action, th e court should stay its hand even though it might, as an original proposition, have reached a different conclusion”) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D .C. Cir. 1971)). The Court’s function is therefore limited to “determin[i ng] whether ‘the contracting ag ency provided a coherent and10 reasonable explanation of its ex ercise of discretion.’” Impres a Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332–33 (Fed. Ci r. 2001) (quoting Late coere Int’l, Inc. v. U.S. Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)); see also Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (noting that a court should review agency action to determine if the agency has “ex amine[d] the relevant data and articulate[d] a satisfactory explanation for its action”).

The scope of judicial review of competitive range determinations is particularly narrow. Thus, “a contracting officer has broad discretion in determining competitive range, and such decisions are not disturbed unless clearly unreasonable.” Birch & Da vis Int’l, Inc. v. Christopher, 4 F.3d 970, 973 (Fed. Cir. 1993); see also Impres a Construzioni Geom. Domenico Garufi v. United States, 44 Fed. Cl. 540, 554–55 (1999), aff’ d in relevant part, 238 F.3d 1324, 1340 (Fed. Cir. 2001); Rivada Mercury, LLC v. Un ited States, 131 Fed. Cl. 663, 677 (2017).

In short, a disappointed offeror “bears a h eavy burden” in attempting to show that a procuring agency’s decision lack ed a rational basis. Impresa Construzioni, 238 F.3d at 1338. For the agency to prevail, it need only articulat e “a rational connection be tween the facts found and the choice made,” and courts will “uphold a deci sion of less than ideal clarity if the agency’s path may reasonably be discerned.” Motor Ve hicle Mfrs. Ass’n, 463 U.S. at 43 (quotations omitted).

In this case, KBA’s challenges to its exclus ion from the competitive range in the BOSS procurement fall into two general categories. Firs t, it claims that NASA’s decisions to assign its proposals certain weaknesses under the Manageme nt and Technical subfactors of the Mission Suitability factor were arbi trary and capricious. Second, it challenges the competitive range determination itself, alleging: 1) that it was inad equately documented; 2) that it placed excessive reliance on adjectival ratings and poi nt scores (which were “distorted and arbitrary”); and 3) that the determination does not reflect a meaningful cons ideration of relevant f actors, including price. Pl.’s Mem. in Supp. of Mot. for J. on the Admin. R. (“Pl.’s Mem.”) at 7, ECF No. 31-1.

For the reasons set forth below, each of KBA’s protest grounds lacks merit. KBA has not met its “heavy burden” of showing that its exclus ion from the competitive range lacked a rational basis. Therefore, its motion for judgment on the administrative record must be denied and the government and PSP’s motions granted.

IV. KBA’s Challenges to the Assignment of Weaknesses to Its Proposal

The SEB assigned KBA’s proposal two wea knesses under the Management Approach subfactor (one of them at the “significant” level). It assigned fi ve weaknesses under the Technical Approach subfactor (one of which was at the “significant” le vel). KBA now contends that several of these evaluation decisions were arbitrary and capri cious because they were based on a misreading or misunderstanding of the relevant elements of KBA’s proposal.

It is well established that the evaluation of proposals for their techni cal quality generally requires the special expertise of procurement officials. Review ing courts therefore give the greatest deference possible to these determinatio ns. See E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (Protests concerning “the minutiae of the procurement process in such11 matters as technical ratings . . . involve discretion ary determinations of procurement officials that a court will not second guess.”); see also One Largo Metro, LLC v. Unite d States, 109 Fed. Cl. 39, 74 (2013) (observing that “the evaluation of proposals for th eir technical excellence or quality is a process that often requires the special expertise of procurement officials, and thus reviewing courts give the greate st deference possible to these determinations”) (quoting Beta Analytics Int’l, Inc. v. United States, 67 Fed. Cl. 384, 395 (2005)). “[N]aked claims” of disagreement with evaluations, “no matter how vigorous, fall far short of meeting the heavy burden of demonstrating that the findings in que stion were the product of an irrational process and hence were arbitrary and capricious.” Banknot e Corp. of Am. v. United States, 56 Fed. Cl. 377, 384 (2003), aff’d, 365 F.3d 1345 (Fed. Cir. 2004).

Thus, to successfully challenge NASA’s determinations regarding the soundness of KBA’s proposal, KBA must show that the agency“entirely failed to consider an important aspect of the problem, offered an explanation fo r its decision that runs counter to the evidence before [it], or [made a decision that] is so implau sible that it could not be ascribed to a difference in view or the product of agen cy expertise.” Motor Vehicle Mf rs. Ass’n, 463 U.S. at 43. With these principles in mind, the Court turns to the objections KBA ha s raised with respect to the agency’s evaluation of its propos al under the Management and T echnical Approach subfactors.

A. NASA’s Assignment of a Significant Weakness Concerning KBA’s Proposal for Managing the Baseline Work Performed Under the Contract

1. The Solicitation’s Requirements

The Solicitation establishes that the baseline work of the contract would encompass two types of service requests: 1) Baseline Repairs and Replacements (“BRRs”), i.e., “request[s] for work to existing infrastructure that is essential to protect, preserve, or re store Facilities, Systems, Equipment, and Utilities (FSEU) ,” AR Tab 15 at 13842; and 2) Se rvice Orders (“SOs”), i.e., “request[s] for facilities-related work that is new in nature and not typically essential to protect, preserve, or restore FSEU,” i d. at 13856. The baseline work wa s to be compensated under a fixed-price CLIN item. Accordingly, for purposes of contract administration, NASA uses a very complicated system that establishes units of meas urement for the tasks that are included as part of the baseline work. Those units of measurement, or “established counts,” are “used to represent the number of categorized [BRRs] and [SOs] in a given Government Fiscal Year.” Id. at 13845.

Under the Performance Work Statement (a t PWS 1.2.1-23), the contractor was required to “[m]anage the established c ounts of SOs and BRRs with the es tablished counts exchange rate (ECER)” and “[e]xchange the esta blished counts of SOs and BRRs within each customer using the ECER to meet fluctuati ng needs.” Id. at 13723. Offerors were required to supply a description of their “approach to prioritize, sche dule, report, and ensure completion of baseline and IDIQ requirements in a multi-user Spaceport environment, including responding to surge requirements and completing the total combined es tablished units for each customer per fiscal year.” Id. at 13696. They would al so be required to “[d]evelop and direct a monthly, two hour Surveillance Review with the [contracting o fficer’s representative] and other Government representatives to discuss [topi cs including] establis hed counts status.” Id. at 13725. During that meeting, the contractor would secu re the approval of the contrac ting officer’s representative for12 exchanges between baseline customers, based on re view of the establishe d counts status. See id. at 13724–25 (PWS 1.2.3-3).

2. NASA’s Evaluation of KBA’s Prop osal for Managing Established Counts

In the section of its prop osal responsive to the fore going requirements and the corresponding evaluation crit eria, KBA stated as follows, in pertinent part:

We provide near real-time reporting on th e Government management portal of the running total of counts by work category and total combined units per customer. We develop a budget management system inExcel that monito rs and tracks the expenditure of work units by client. We es tablish a set point of 85% for each type of work unit by client. Once an 85% spend le vel is attained, the customer is notified in writing of the potential spending limit infraction and a path forward is developed. We manage and prioritize EWRs to ensure the total combined established units for each baseline customer are not exceede d, and communicate with the Government on recommended approaches (e.g., de ferred maintenance (DM), exchanges between customers, IDIQ) to ensure suffi cient units are available throughout each fiscal year.

AR Tab 20a at 15635.

The SEB assigned KBA a significant weakness withrespect to this asp ect of its proposal. It concluded that “KBA’s approach of using a set point of 85% to monitor and track the expenditure of ‘work units’ by customer is an inappropriate approach to managing the established counts of [BRRs] a nd [SOs].” AR Tab 32a at 27668. The SEB explained that the approach did not “demonstrate how KBA will not exceed the total combined established units,” nor did it “demonstrate how KBA will perform PWS 1.2.1-23 requirement to exchange the established counts of BRRs and SOs within each customer using the ECER to meet fluctuating needs.” Id. In addition, the SEB found that KBA’ s “approach of notifying the customers does not meet with PWS 1.2.3-3 requirement to discuss established counts status at the monthly Surveillance Review with the Contrac ting Officer’s Representative.” Id.

The SEB found these flaws in KBA’s propos al significant because “[m]anaging the established counts [was] a signifi cant portion of the contract,” and because, in the SEB’s view, KBA “fail[ed] to describe an approach for activ ely managing the usage rates of the counts until the 85% set point is reached.” I d. According to the SEB, this as pect of the proposal “appreciably increase[d] the risk [that] facilities [would] be unavailable and cause budgetary burdens on customers to fund purchases of additional pre-pri ced counts or deferral of priority work.” Id.

KBA now contends (as it did unsuccessfully before GAO) that the agency’s assignment of a significant weakness con cerning its proposal to manage established counts is based on a misunderstanding of the proposal. Thus, while KBA concedes that the “85% set point notification” does not satisfy the requirement set forth in PWS 1.2.1-23 that the contractor actively manage established counts, it asserts that it was “never intended” to do so. Pl.’s Mem. at 24. Instead, according to KBA, it proposed to ma nage established counts by “develop[ing] a13 budget management system in Excel that monitors and tracks the expenditure of work units by client” and by “communicating with the government regarding needs for approaches to ensure sufficient units are available, such as ‘exchanges between customers.’” Id. (citing AR Tab 20a at 15635) (emphasis omitted).

KBA’s challenge to this aspect of NASA’s evaluation lacks merit. “An offeror has the responsibility to submit a well-written proposal with adequately deta iled information that allows for a meaningful review by the procuring agency .” Structural Assocs., Inc./Comfort Sys. USA (Syracuse) Joint Venture v. United States, 89 Fed. Cl. 735, 744 (2009) (citation omitted). Further, “all offerors, including incumbents, are expected to demonstrate their capabilities in their proposals.” Int’l Resour ce Recovery, Inc. v. United States, 60 Fed. Cl. 1, 6 (2004). Regardless of what KBA intended to communicate, it was not unreasonable for the agency to have understood that the 85% notif ication threshold was a central feature of KBA’s approach to managing the established counts and that, as su ch, KBA’s proposal did not adequately address this important requirement.

The agency’s conclusion was particularly r easonable given the conclu sory nature of the other language in KBA’s proposal, which asse rted (without explai ning how) that KBA “manage[s] and prioritize[s] [electronic work requ ests] to ensure the total combined established units for each baseline customer are not exceed ed, and communicate[s] with the Government on recommended approaches . . . to ensure suffi cient units are available throughout each fiscal year.” AR Tab 20a at 15635. In fact, this portion of KBA’s proposal essentia lly just restates the Solicitation requirements, which offerors we re cautioned not to do. See AR Tab 15 at 13695 (“The proposal shall not simply rephrase or restate the Government’s requirements, but rather shall provide convincing rationale to address how the Offeror intends to meet the requirements. . . . Information shall be precise, f actual, detailed, and complete.”).

The Court finds similarly unpersuasive KBA’ s argument that “NAS A evaluators were incorrect in their assertion that KBA’s proposal failed to addr ess the monthly surveillance review meeting.” Pl.’s Mem. at 24. KBA appears to argu e that the evaluators erred by failing to infer that this requirement was satisfied by a separa te section of its proposal—which assigned its Program General Manager to participate in th e surveillance review meetings. But the SEB’s criticism was not directed at whether the appr opriate personnel would be participating in the meetings; rather, it was directed at KBA’s failure to specify th at established counts would be discussed at each meeting. Agai n, it was KBA’s responsibility to submit a well-written proposal that was responsive to the re quirements of the Solicitation.

Finally, KBA has challenged the agency’s vi ew that its proposal created a risk of imposing “budgetary burdens,” contending that budge t issues are “not properly considered on a fixed-price contract.” Pl.’s Mem. at 25–26. As the government points out, however, KBA misunderstands the nature of th e “budgetary” risks the SEB iden tified. The SEB concluded that KBA’s proposed approach could “cause budgetary burdens on customers to fund purchases of additional pre-priced counts or deferral of prior ity work.” AR Tab 32a at 27668. In other words, the risk identified was that a dditional counts would need to be procured or work deferred because of inadequate management of the esta blished counts. That risk is appropriately a consideration where, as here, the fixed price CLIN covers onl y a set number of counts. This14 challenge to the SEB’s decision to assign a sign ificant weakness to KBA’s proposal, therefore, falls short.

B. Assignment of a Weakness Regarding the Outage Management Process

KBA also challenges the SEB’s decision to assign its proposal a weakness based on its conclusion that KBA’s proposed “outage management process . . . include[d] cost type contract assumptions,” which the SEB believed “demonstrate[ d] a lack of understandi ng of and ability to manage the contract as a fixe d-price contract.” AR Tab 32a at 27670. According to the SEB, these “cost type” assumptions were reflected in KBA’s proposal to assign a budget to each outage, to use an outage cost control coordi nator to track, update, and report the cost performance against the outage budg et, and to present such reports at the weekly outage meeting. Id. These features of its proposal , according to the SEB, evinced KB A’s failure to appreciate that “all outages [would] be accomplishe d either within the fixed baseline price of the contract or through fixed-price pre-priced [IDIQ] task orders.” Id.

KBA asserts that the inferences that the SEB drew from its proposal were unreasonable. It contends that the proposal “clearly indi cated that KBA understood that outage management was to be performed under fixed- price baseline or IDIQ work.” Pl.’s Mem. at 27. In support of that assertion, it c ites several pages in the Technical Appr oach 1.0 section of its proposal, in which it referenced the concept of “baseline work” or “Baselin e Repairs and Replacement” while also discussing outages. Id. But the SEB’s concer n arose out of KBA’s d ecision to characterize and feature the cost management and control pr ocedures as a “key element” of its Outage Management Process. AR Tab 32a at 27670. The oblique references upon which KBA relies in its motion do not persuade the Court that it was irrational for the SEB to conclude that KBA’s proposal betrayed a lack of appreciation of the fixed-pri ce nature of the contract.

The Court is also not persuaded by KBA’s argum ent that that the Solicitation “require[d] that actual costs are tracked in order to actively manage cat egories of BRRs and SOs that correspond to different cost levels ,” and that therefore, “KBA’s proposal to monitor costs and work scope for outages performed as part of the ove rall baseline fixed-pri ce effort is consistent with contract requirements.” Pl.’s Mem. at 27–28. As the government explains, the cost tracking associated with BRRs and SOs “addresses a separate PWS requirement” from outage management. Def.’s Mot. at 34; Def.’s Reply in Supp. of Mot. for J. on the Admin. R. at 13–14, ECF No. 42.

In short, the Court is satisfie d that the SEB examined the pr oposal in its entirety, applied its expertise to the proposal’s interpretation, and supplied an adequate explanation of its reasoning. Its assignment of a w eakness to this aspect of KB A’s proposal was rational and supported by the record.

C. Assignment of a Significant Weakness Concerning Failure to Identify Other Direct Costs in Basis of Estimates

The agency assigned KBA’s proposal a si gnificant weakness under the Technical Approach subfactor because its “b asis of estimate” (“BOE”) spreadsheet “fail[ed] to identify any other direct costs” (“ODCs”) for operations, main tenance, and engineerin g to perform the [PWS]15 requirements. AR Tab 32a at 27672. KBA challenge s this determination on the grounds that the Solicitation did not require it to provide the info rmation omitted from its spreadsheet and that, in any event, the information was included elsewhere in its proposal. These c ontentions lack merit.

The SEB’s decision to assign the significant weakness was based on what it viewed as a failure on KBA’s part to comply with Section L.16.2 of the Solicitation. Th at provision specified the information an offeror was required to include in its proposal in resp onse to the Technical Approach subfactor. It stated that offerors must provide BOEs “for the requirements identified in Attachment L-03 (BOE Template), using the fo rmat provided.” AR Tab 15 at 13698; see id. at 14984 (BOE Template). It further stated that on th e template, offerors were required to include “(a) An itemization of res ources (labor and non-labor fo r the Offeror, including all subcontractors) described in su fficient detail to demonstrate th e Offeror’s understanding of the requirements and the reasonableness of the pr oposed approaches”; and “(b) A detailed explanation of methodologies, ratio nale, and other relevant inform ation to allow the Government to clearly understand the proposed approaches.” Id. at 13698. The Solicitation informed potential offerors that NASA would “evaluate the Offeror’s Basis of Estimates (BOEs) for demonstration of understanding of the requirements and the reas onableness of the proposed approaches.” Id. at 13710.

Based on these instructions, each offeror submitted a completed version of Attachment L03 with its proposal. It is undisputed, however, that the BOE Template that KBA submitted did not include entries for the two co lumns covering “other direct cost s” to perform the operations, maintenance, and engineering requirements. AR Tab 32a at 27672. The SEB observed that the maintenance function, for example, involved lubri cation and the cleaning of equipment, and yet KBA’s spreadsheet did not include other direct costs for the mate rials needed to perform these tasks. Id. Similarly, “the RFP requires a traine d, certified, and licensed workforce”; nonetheless KBA did not propose any other direct costs for e ngineering; nor did it supply a “rationale for how it would obtain the required training, tools or software to provide and maintain an appropriately qualified workforce without requi ring ODCs.” Id. The SEB concluded that KBA’s failure to include ODCs “demonstrate[d] a lack of understanding of the requirements, which appreciably increase[d] the risk of unsuccessful performance.” Id.

KBA contends that the Solicitation did not require any itemization of ODCs for the PWS requirements at issue. Pl.’s Mem. at 32–33. Further, it asserts that it “inc orporated ODCs into its BOE for these PWS sections,” but rather thanbreak them out on the BOE Template, the ODCs “instead were made part of KBA’s overall propose d cost.” Id. at 33. KBA al so contends that the BOE Template did not contain any “substantive instruction” in the “Instruction” and “Legend” included in the attachment. Id. at 34–35; see also AR Tab 15 at 14983 (Instruction and Legend page of Attachment L-03).

The Court finds KBA’s arguments unpersuasi ve. As detailed above, the Solicitation specified that offerors were to provide BOEs for the requirements listed, and that they were to use the format provided in Attachment L-03. AR Tab 15 at 13698. That attachment, in turn, included two ODC columns. Id. at 14984. Further, the Solicitation required offerors’ BOEs to include “an itemization of resources . . . desc ribed in sufficient deta il to demonstrate the Offeror’s understanding of the requirements and the reasonablene ss of the proposed approaches.” Id. at 13698 (emphasis supplied). Offerors were further instructed to provide a “detailed16 explanation of methodologies, ratio nale, and other relevant info rmation to allow [NASA] to clearly understand the proposed appr oaches.” Id. And, importantly, offerors were on notice that their BOEs would be evaluated for “demonstrati on of [their] understanding of the requirements and reasonableness of the proposed approaches.” Id. at 13710.

In light of the foregoing, it was reasonable fo r the agency to assign a significant weakness to this aspect of KBA’s propos al, notwithstanding that KBA included ODCs in its “overall proposed cost.” The agency instructed offerors to fill out the BOE Template so that it could fully assess their understandi ng of the contract requirements and the reasonableness of their approaches. The SEB’s assignment of the signi ficant weakness based on KBA’s failure to sufficiently demonstrate its comprehension was r easonable and consistent with the So licitation.

The Court also rejects KBA’s argument that it was “prohibited” from providing ODCs for the requirement to provide a trained and fully licensed workforce. The fact that the Solicitation required training to be provided at the contractor ’s expense did not obviate the requirement that offerors list the ODCs of su ch training to demonstrate to the agency’s satisfaction that they understood the training requirement and had a reasonable proposal to meet it.

Once again, it was KBA’s responsibility to submit a “well-written proposal with adequately detailed information that allow[ed] for a meaningful review by [NASA].” Structural Assocs., Inc./Comfort Sys. USA (Syracuse) Jo int Venture, 89 Fed. Cl. 735 at 744. Though KBA now maintains that it “incorporated ODCs into it s BOE” for the PWS sections at issue, the Solicitation was clear that offerors were requi red to demonstrate their understanding of the requirements by “showing their work ” using the BOE Template to re flect those costs. The Court finds that NASA did not act arbitrarily or unr easonably in assigning a significant weakness forKBA’s failure to provide any ODCs for the baseline work requirements listed in Attachment L03.

D. Assignment of a Weakness Concern ing the Process for Managing Maintenance Action Requests

Finally, NASA assigned KBA a weakness under th e Technical Approach subfactor based on KBA’s failure to meet the PWS 3.1.2-2 requireme nt to “[d]evelop and maintain a process to manage Maintenance Action Requests (MARs) w ithin Maximo.” AR Tab 15 at 13767. Like its other challenges to the SEB’s ev aluation decisions, KBA’s claim that the assignment of this weakness was improper lacks merit.

Maximo is a government-provided computerized maintenance management system that is used at the Kennedy Space Center . Id. at 13745. An MAR is “[t] he authorizing document for adding, changing or deleting item s of equipment and maintenance procedures in Maximo in accordance with the Maintenance Plan.” Id. at 13852. According to the SEB, KBA’s proposal did not explain how it would “develop and main tain a continuous process to manage MARs within Maximo”; it merely stated that it woul d “review and disposition MARs at the weekly Baseline Work Integration meeting.” AR Ta b 32a at 27674. Further, the SEB found KBA’s proposed approach to managing MARs flawed because it would lead to “an inefficient use of the Government’s time at the [weekly] meeting.” I d. As a result, the SEB predicted a “risk of17 untimely MARs disposition, which increases the ri sk of schedule disruption and degradation of the systems for which [the contractor] is responsible.” Id.

KBA again contends that the SEB misread its proposal. It argues that in addition to providing for review of MARs during the Baselin e Work Integration Meeting, other aspects of its proposal included “a continuous process/work flow within Maximo.” Pl.’s Mem. at 36. Specifically, KBA notes that its pr oposal made reference to rela ted software tools and that it stated: “We use EWRS and Maximo so the curren t work status of all WONs is available on demand.” Id. at 37 (citing AR Tab 20a at 15668).

As the government points out, the separate se ction of the proposal cited by KBA is not responsive to the particular PWS requirement at hand. See Def.’s Mot. at 40 (statements cited by KBA “correspond to the requirements of PWS 2.1.1.2 and 2.1.1.3 which address configuring and utilizing Maximo and EWRS”) (citing AR Tab 58a at 28355). Further, the SEB found the proposal’s references to MAR processes within Ma ximo too general to meet the requirement of the Solicitation that it explain how issues would be managed th rough Maximo. Def.’s Mot. at 39–40. It determined that the proposal’s conclusory references to the rele vant software programs and its confirmation that “[w]e use EWRS and Maximo” to keep track of work orders did not address the Solicitation’s requirement to explai n the “continuous process” KBA planned to use to manage MARs within Maximo. The SEB’s de termination appears reasonable to the Court; accordingly, it declines KBA’s invitation to subs titute its views for those expressed by the SEB in exercising its expertise and considerable disc retion to evaluate the technical merit of KBA’s proposal.

The Court also finds rational the SEB’ s concern that, under KBA’s proposal, an excessive amount of time would be spent on MARs at weekly meetings. KBA’s proposal specifies that it will maintain an MAR log listing work orders, which in turn is to be reviewed at each weekly Baseline Work Integration Meeting, where “each open action/issue will be reviewed and dispositioned in a number of ways.” AR Tab 20a at 15669. The proposal further contemplates that “[d]isposition ou tcome(s) will be reviewed at the next scheduled meeting with the expectation [that] the action will be positivel y addressed and closed.” Id. In other words, KBA proposed an approach to manage MARs by discussing them at weekly meetings, not through Maximo as the Solicitation required. The contracting officer reasonably concluded that this would result in inefficiencies. 3

3 KBA urges the Court to disregar d the contracting officer’s rati onale concerning “inefficiencies” found in her statement because it is a “post-hoc statement” which “is not found in the actual evaluation findings [] or the contemporaneous eval uation record.” Pl.’s Reply in Supp. of Mot. for J. on the Admin R. & Resp. to Def.’s & De f.-Intervenor’s Cross-Mots. For J. on the Admin. R. (“Pl.’s Reply”) at 18 n.16, ECF No. 40. The C ourt finds that it may properly consider this aspect of the contracting officer’s statemen t because it is “consistent with the [SEB]’s contemporaneous documentation” of its eval uation findings regard ing this weakness. PlanetSpace Inc. v. United States, 96 Fed. Cl . 119, 127 (2010). This additional “inefficiencies” rationale is “credible and consis tent with the underlying evalua tion,” and thus represents “an expanded explanation” of the agency’s evalua tion. Sayed Hamid Behbehani & Sons, WLL, B-18 In short, the Court cannot second-guess the SEB’s conclu sion that KBA’s proposal did not adequately meet this t echnical requirement. KBA’s chal lenge to the weakness the SEB assigned regarding this issue is therefore without merit.

V. KBA’s Argument That the Agency’s Competitive Range Determination Was Not Adequately Documented and Placed Undue Reliance on Adjectival Ratings and “Distorted” Numerical Point Scores

In addition to challenging NASA’s assignment of weaknesses to aspects of its proposal as discussed above, KBA contends that the competit ive range determination itself was arbitrary and capricious. It argues that, in making the determ ination, the contracti ng officer “improperly focused almost exclusively on high-level adjectival ratings, th e number of assigned Strengths/Weaknesses, and distorte d point scores,” and further, that she “did not document any meaningful analysis of the ev aluation findings or proposal feat ures underlying those high-level findings.” Pl.’s Mem. at 8.

As noted above, to prevail in its challenge to the contracting officer’s competitive range determination, KBA must establish that it was “clearly unreasonable.” For the reasons set forth below, the Court finds that KBA has failed to do so. The reasons for th e contracting officer’s competitive range determination were fully documented in the record and were not based solely on adjectival ratings and point scores. Inst ead, the determination reflects a meaningful consideration of all relevant f actors. Further, and contrary to KBA’s argument, NASA’s pointscore system did not artificially inflate the evaluated differences between the proposals. Rather, it provided a useful point of reference for di stinguishing which proposals were the most highly rated and, therefore, should be included in the competitive range.

A. KBA’s Argument That the Competit ive Range Determination Was Not Adequately Documented

FAR 15.306(c)(1) governs the establishment of the competitive range. It states that “[b]ased on the ratings of each proposal against a ll evaluation criteria, the contracting officer shall establish a competitive range comprised of a ll of the most highly rated proposals, unless the range is further reduced for purposes of effici ency.” FAR 15.306(c)(1) does not prescribe any documentation requirement or mandatory cont ent for a contracting officer’s memorandum memorializing her competitiv e range determination. Cf. FA R 15.308 (stating that a source selection decision “shall be documen ted,” and that “the documenta tion shall include the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs”). There is thus no legal authority that supports KBA’s contention that the Court is precluded from looking beyond the competitive range memorandum itself when reviewing whether the contracti ng officer’s decision to exclude it from the

288818.6, 2002 CPD ¶ 163, 2002 WL 31159457, at *4 n.2 (“ Where, as here, a post-protest explanation simply fills in previously unrecord ed details of contemporaneous conclusions, we will consider it in our review of the rationality of [the] se lection decision so long as the explanation is credible and consistent with the contemporaneous record.”).19 competitive range lacked a rational basis. See Pl.’s Mem. at 14 (arguing that “when making competitive range determinations, agencies are not only required to look behind the point scores and adjectival ratings, but such an analysis must actually be documented in the competitive range determination”) (emphasis altered); see also id. at 7. To the contrary, as with other agency procurement decisions, the Court may look to the entire administrative record when assessing whether a competitive range determination was ar bitrary, capricious, or anabuse of discretion. See Med. Dev. Int’l, Inc. v. United States, 89 Fed. Cl. 691, 710–11 (2009) (finding a determination adequately documented where th e record included “a short summary of the balancing that took place” and notin g further that “such balancing is entitled to a presumption of regularity”). 4

Here, the basis for the contracting officer’s competitive range determination is well documented in the competitive range memorandum and in the record of the SEB’s evaluation of the proposals. Thus, the SEB’s presentation of its initial evaluation of each offeror’s proposal to the SSA contains an explanation of the streng ths and weaknesses the SEB assigned to each offeror’s proposal for each technical subfactor under the Mission Suita bility factor. These strengths and weaknesses, which were memorial ized in individual memoranda, served as the basis for the adjectival ratings and point sc ores the SEB assigned. AR Tab 38 at 27804–39. The presentation further contains an explanation of the reasoning for th e “Very High” confidence rating assigned for each offeror’s past performance and includes a summary of the total evaluated price of all offerors. Id. at 27841–48.

In the competitive range memorandum itself, the contracting officer explained that she had decided to place the three most highly scored and rated proposals into the competitive range. That determination was supported by the fact th at there was a natural breakpoint between the Mission Suitability scores of the three highest-rated proposals (Offero r A, Offeror B, and PSP) as compared to the remaining two proposals (Offe ror C and KBA). See Arsenault Acquisition Corp.; E. Mulberry, LLC, B-276959, 1997 CPD ¶ 74, 1997 WL 577522 (Comp. Gen. Aug. 12, 1997) (upholding establishment of competitive range using “natural breakpoint” among the total scores of the proposals). The cont racting officer also took the pr ice of the top three proposals into consideration and concluded that “[d]iscussions would like ly enhance all three proposals, thereby increasing competition, which maximizes the Government’s ability to obtain the best value.” AR Tab 39 at 27916.

4 For this argument and others, KBA relies heavily upon GAO’s Pinnacle decision. See, e.g., Pl.’s Mem. at 7, 11, 14–17. The Court is skeptical of Pinnacle’s relevance to the instant protest, largely because GAO itself found its own prior decisi on distinguishable when applied to the facts at issue here. AR Tab 71 at 60125. And in any event, to the extent that Pinn acle is in tension with the Court’s findings in the pres ent case, GAO decisions are not bi nding on this Court, but instead may be used as persuasive authority when appropriate. Univ. Research Co. v. United States, 65 Fed. Cl. 500, 503 (2005). The Court thus rejects KB A’s proffer of Pinnacle as authority to support its arguments in this case, particularly the argument that the Court must look exclusively to the competitive range memo randum—and may not review the en tire administra tive record—to discern the agency’s reasoning.20 The contracting officer also provided a speci fic explanation in the memorandum as to why she had found that KBA’s proposal was not among the most highly rated. She cited the proposal’s several significant weaknesses, whic h had resulted in it being assigned the secondlowest Mission Suitability score of the five proposals. These include d, as described above, “several Basis of Estimate areas that demonstrated a lack of understandin g in various resource areas” and an “approach to managing the establis hed counts” that the SE B found inadequate. Id.

The contracting officer also explained that , in her view, it was unlikely that holding discussions with KBA would be fruitful. She observed that even if KBA corrected its weaknesses as a result of discussions, its proposal still would lack any strengths or significant strengths in the Management and Technical subf actors. She predicted that KBA would therefore have to make “significant proposal revisions” in order to increase its Mi ssion Suitability score substantially. Id. Moreover, she reasoned, KB A’s evaluated price wa s the second highest, making the possibility of any tradeoff unlikely. Id.

As the foregoing demonstrates, the record refl ects that the contracting officer concluded that KBA’s proposal was not among the most highl y rated because it was the second highest in price and yet had signifi cant weaknesses and no strengths with respect to the two most important Mission Suitability subfactors. KBA’s adjectival ra tings and point scores we re inferior to those of the three proposals that th e contracting officer conclude d were the most highly rated, including two proposals that came in at a signifi cantly lower price. Th e contracting officer’s reasoning was adequately documented through the competitive range memorandum and the supporting evaluation materials. Therefore, KBA’s contention that the competitive range determination does not reflect a meaningful cons ideration of relevant factors, lacks merit.

B. KBA’s Argument That NASA’s Point Sco re System Distorted the Extent of the Qualitative Differences Between the Proposals

In addition to its argument that the contrac ting officer did not ad equately document the basis for her competitive range determination, KBA challenges as “arbitrary and misleading” the Mission Suitability point-scoring system that NA SA employed in connection with its evaluation process. Pl.’s Mem. at 15. KBA contends that a comparison of the total number of strengths and weaknesses assigned to each offeror’s proposal does not portend a “large disparity” in the “underlying Mission Suitability eval uations.” Id. at 15; see also AR Tab 38 at 27912. The point scores, KBA argues, “distort[ed] and artificially inflate[d] the actual evaluated differences between the offerors’ Mi ssion Suitability proposals. ” Pl.’s Mem. at 15–16.

KBA’s “distortion” argument lacks merit. It is premised on the notion that the strengths and weaknesses that the SEB identif ied in each subfactor were of equal importance in scoring the Mission Suitability factor. In fact, however, each subfactor was assigned a weight based on its importance (525 points for Management Approac h, 375 points for Technical Approach, and only 100 points for Small Business Utilization). Strengths and weaknesses assigned under the Management Approach subfactor, th erefore, carried more than five times the weight of those assigned under the Small Business Utilization subfactor. And, as the summary chart below shows, KBA lacked any strengths that might outweigh its weaknesses under the two most21 important subfactors, Manageme nt and Technical Approach. 5 When the relative importance of the subfactors is taken into cons ideration, the differences between the quality of the proposals are substantial.

The Court finds similarly without merit KB A’s contention that the competitive range determination was arbitrary and capricious because there is nothing in the record that explains “how the evaluators arrived at specific point scores within a ‘percentile point range’” before multiplying the percentile scores by the number of available points for each subfactor. Pl.’s Mem. at 16. Thus, KBA argues that “the underlyi ng record still does not show . . . how the evaluators determined whether an offeror fell wi thin the low-end, middle, or high-end of a given ‘percentile point range.’” Id. at 16–17.

KBA’s contention that there is nothing in th e record that explains how specific point scores were assigned ignores the government’ s explanation that the evaluators reached “consensus findings” and assigned adjectival ratin gs and scores which were “validated” for consistency. See AR Tab 58 at 28321, 28378. Further, while not explicitly stated, the Court can readily infer that the point scor es were assigned on the basis of the number and nature of the strengths and weaknesses found in the propos als with respect to each subfactor.

The evidence supporting this inference is reflected in the summary chart above, which shows each offeror’s percentile scores and total points for each Mission Suitability subfactor, as well as the offerors’ total Mission Suitabilityscores. Taking the Management Approach subfactor as an example, Offeror A and PSP receive d almost identical percentile scores of 68 and 69, which is rational considering their identical di stribution of two “other ” strengths each, with no significant strengths orany weaknesses of either type. In contrast, although it earned the same adjectival rating of “Good,” Offeror B receive d a percentile score approximately ten points lower, which reasonably follows from the fact th at it achieved only one strength and was also assigned a weakness. Along the same lines, ther e is a rational relationship between Offeror A

5 Data in the chart is taken fr om AR Tab 38 at 27803, 27805, 27807, 27809, 27811, 27813, 27815, 27818, 27820–23, 27825, 27827, 27829, 27831, 27833, 27835–37, 27839–40. Significant Other Significant Other Significant Other Significant Other Significant Other Significant Other Offeror A 020011011000 Offeror B 010110010100 PSP 020021251000
KBA 001100141000 Offeror C 011110251000

Offeror Percentile Score Points Percentile Score Points Adjectival Rating Percentile Score Points Total Points Offeror A 68 357 86 323 Very Good 85 85 765
Offeror B 59 310 81 304 Good 70 70 684
PSP 69 362 58 218 Very Good 82 82 662
KBA 37 194 40 150 Very Good 87 87 431
Offeror C 41 215 32 120 Very Good 83 83 418 Adjectival Rating Adjectival Rating Strengths Weaknesses Offeror Strengths Weaknesses Management - 525 Points Strengths Weaknesses Technical - 375 Points Small Business - 100 Points

Good Good Good Fair
Fair Very Good Very Good

Good Fair
Fair22 and Offeror B’s Technical Approach scores wi thin the “Very Good” range, because Offeror A did slightly better than Offeror B in that it earned a strength whereas Offeror B did not.

The relative scores of KBA and Offeror C similarly reflect a ra tional scoring scheme. Each of these offerors achieved the same “Fai r” rating for Management Approach and Technical Approach, but their percentile scores diffe red based upon underlying differences in their respective evaluations. Offeror C fared slight ly better on the scoring of its Management Approach because it earned a strength under that subfactor and KBA did not. KBA fared better under Technical Approach because Offeror C was a ssigned two significant weaknesses and five weaknesses under that subfactor, pulling its percentile score dow n toward the bottom of the “Fair” range.

These types of rational relati onships hold across all of the pe rcentile scores within the given adjectival ranges. Proposal s evaluated similarly under a given subfactor received similar percentile scores for that subfact or, and where the per centile scores varie d, the differences are based on the relative weaknesses and strengths as signed as part of the underlying evaluation.

In sum, while the specific basis for determining the percentile scores is of “less than ideal clarity . . . the agency’s path may reasonably be discerned.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. The Court is satisfied that the point-sco re system, which was used as a guide to the competitive range determination, did not “distort” or “artificially inflate” the differences among the offerors’ proposals. 6

C. KBA’s Challenges to the Contracting Officer’s Determination Regarding the Relative Quality of the Offerors’ Proposals

KBA mounts various challenges to the contracting officer’s substantive treatment of the relative qualities of each offeror’s proposal. Fo r example, it claims that the competitive range memorandum “merely count[ed] the Weaknesses assigned to KBA’s proposal” and failed to acknowledge or discuss the fact that other proposals with the same or similar weaknesses were included in the competitive range. See Pl.’s Mem. at 8–9.

6 In addition to opposing on the meri ts KBA’s argument that the use of point scores artificially distorted and inflated the diffe rences among proposals, the gove rnment also contends that— under the reasoning of Blue & Gold Fleet, L. P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007)—KBA waived that argument by not raisin g it before the proposals were evaluated. See Def.’s Mot. at 18–19. The Court finds the g overnment’s waiver argument unpersuasive. It does not view KBA’s challenge as one to the use of the point-score system referenced in the Solicitation; rather, the gist of KBA’s argument is that the agency did notprovide an adequate explanation in the record as to why it assigned particular point sc ores within the specified ranges when evaluating the various proposals. KBA also argues that, as applied, the point scores assigned distorted the differences between the pr oposals. The Court views these as challenges to the evaluation process rather thanto a “patent error” in the terms of the Solicitation. See Blue & Gold Fleet, 492 F.3d at 1315.23 But the contracting officer did not merely c ount weaknesses; she considered the relative importance of the weaknesses assigned to each offe ror’s proposal and weighed them against their strengths. KBA’s proposals were not comparable to those it cites, for the proposals of the other offerors that had similar weaknesses were also assigned strengths and/or significant strengths under the Management and Technical Approach subfactors. KBA’s proposal, on the other hand, was assigned only the weakne sses, and no strengths.

The evaluation scheme required NASA to balance each proposal’s strengths and weaknesses to determine its adje ctival rating. See, e.g., AR Tab 38 at 27802 (“Fair” rating, for example, indicates that a proposal’s “[w]ea knesses outbalance any strengths”) (emphasis supplied). Because KBA’s weaknesses in th e two most important subfactors were not counterbalanced by any strengths or significant strengths—as noted in the competitive range memorandum—it was reasonable for NASA to base its exclusion of KBA from the competitive range in part on these weaknesses, as well as on the “Fair” ratings assigned to KBA’s proposal as a result of the imbalance.

KBA also alleges that in determining the comp etitive range, NASA gave short shrift to its high ratings and strong showing under the Small Business Utilization subfactor within the Mission Suitability evaluation. Pl.’s Mem. at 9–12. KBA argues that “[h]ad NASA’s competitive range determination actually looked behind the offerors’ adjectival ratings under the Small Business Utilization plan subfact or and actually documented a r easoned consider ation of the actual evaluation findings, KBA’s Small Business Utilization plan clear ly would have been deemed to be superior to the other offero rs’ plans.” Id. at 10 (emphasis removed).

But NASA in fact did deem KBA’s small bus iness plan superior; it assigned KBA the highest score of 87 out of 100 for the Small Bu siness Utilization subfactor. AR Tab 38 at 27840. The fact remains, however, thatthis subfactor was by far the least important of the three subfactors, for the maximum number of points av ailable under it was 100, as compared to the 525 and 375 points available for the Manageme nt and Technical Approach subfactors, respectively. Even if KBA had been assigned th e maximum Small Business Utilization score of 100 points, its overall total Missi on Suitability score would have increased only from 431 to 444, leaving it well behind PSP’s score of 662, th e lowest Mission Su itability score among competitive-range offerors.

KBA’s challenges to the contra cting officer’s analysis of th e Past Performance factor are similarly unpersuasive. As explained above , all proposals were assigned a “Very High” confidence rating under this factor. KBA contends that the contracting officer should have treated its proposal as superior to the others with respect to past performance. It contends that “a reasonable evaluation of KBA’s ‘exceptional’ and ‘very highly pertinent’ past performance on the incumbent contract would have given KBA an edge over the other offerors who, although similarly rated, did not have this unique type of highly relevant experience.” Pl.’s Mem. at 12– 13.

The record shows that—contrary to KB A’s argument—the agency engaged in a meaningful evaluation of each offeror’s past pe rformance under the criteria set forth in the Solicitation. See generally AR Tabs 32b, 33b, 34b, 35b, 36b (detailed SEB analysis and findings as to past performance of each offeror); s ee also AR Tab 38 at 27844–48 (SEB presentation24 slides summarizing past performance evaluati ons); id. at 27878–900 (SEB presentation Past Performance back-up slides). Further, KBA r eceived credit for the exceptional performance of joint venturer YEI on the predecessor contract. See AR Tab 32 at 27683–90. 7 At the same time, KBA actually fared slightly worse than the othe r four offerors when all of the contracts submitted for the Past Performance evaluation are taken into account. KBA demonstrated “significantly relevant” experience across four out of five PWS areas and “relevant” experience on the fifth, whereas the other four offerors all demonstrated “significant ly relevant” experience on each of the five areas. Compare AR Tab 38 at 27847 (summary of KBA’s past performance evaluation) with id. at 27844–46, 27848 (summaries of other offerors’ past performance evaluations). Thus, KBA’s argument that the contracting officer was required to give it an edge in terms of its Past Performance rating based on YEI’s work on the predecessor contract lacks merit.

D. KBA’s Contention That NASA Did Not Meaningfully Consider Price When Determining the Competitive Range

Finally, KBA asserts that the competitive range determination “does not document a meaningful consideration of price.” Pl.’s Mem. at 18 (emphasis omitted). More specifically, KBA posits that the competitive range determina tion did not “document any sort of comparison of the offerors’ prices to the Independent Gove rnment Cost Estimate,” nor did it “probe the underlying reasons” for the disparity between KBA and Offeror A’s prices—$658.3 million and $670.0 million, respectively—and the other three offe rors’ prices, all of which were below $490 million. Pl.’s Mem. at 18–19 (emphasis removed) ; AR Tab 38 at 27851 (table showing each offeror’s total evaluated price).

KBA’s argument that the agency did not document a comparison of the offerors’ prices is inconsistent with the administ rative record. The underlying SEB pr esentation explicitly reflects that—consistent with the criteria set forth inthe Solicitation—the SEB “perform[ed] a price analysis in accordance with FAR 15.404-1(b).” AR Tab 15 at 13711 (Solic itation); AR Tab 38 at 27850 (SEB presentation). 8 The SEB presentation includes a calculation and comparison of the total evaluated price for each proposal, which included baseline annual services (CLIN 001 & 003), baseline established counts (CLIN 002 & 004), government-provided values (CLIN 005), estimated IDIQ price (CLIN 006 & 007), and ph ase-in costs. AR Tab 38 at 27850–51. The presentation reflects a comparison between eachproposal’s total evaluated price and the

7 For example, the SEB observed that YEI wa s a “major” subcontractor on the predecessor contract and that, for the fifth PWS area (Logis tics), YEI’s performance on that contract “mitigat[ed] the lack of relevant experience on the other cited contra cts.” AR Tab 32 at 27688.

8 That provision states that in most situations “[c]omparison of proposed prices received in response to [a] solicitation” is a satisfactory price analysis technique because “[n]ormally, adequate price competition establishes a fa ir and reasonable price.” FAR 15.404-1(b)(2)(i) (citing FAR 15.403-1(c)(1)(i)).25 Independent Government Cost Es timate. Id. at 27851. The SEB also evaluated the proposals for unbalanced pricing and found none. AR Tab 65a at 59955.

KBA’s argument that NASA should have “pr obe[d] the underlying reasons” for the price differences between the higher- and lower-priced pr oposals also lacks merit. The reasons for the price differences would only be relevant if th e Solicitation called for a price realism analysis. “Where an award of a fixed-price contract is contemplated, a proposal’s price realism is not ordinarily considered, since a fi xed-price contract places the ri sk of loss on the contractor.” NVE, Inc. v. United States, 121 Fed. Cl. 169, 180 ( 2015) (internal quotation marks and citation omitted). Accordingly, “for a price realism analys is to apply in a fixed-price contract, the solicitation must expressly or im plicitly require a price realism analysis for a proposal to be rejected for an unrealistically lo w price.” Id. (citation omitted).

Further, as explained above, the contracti ng officer explicitly noted KBA’s high price (coupled with its relatively low Mission Suitabilityscore) in explaining why its proposal was not included in the competitive range. Although Offeror A’s proposed price was slightly higher than KBA’s price, Offeror A’s proposal also contained several strengt hs (unlike KBA’s), and Offeror A achieved ratings of “Good” and “Very Good” for two Mission Suitabi lity subfactors under which KBA achieved a rating of only “Fair.” Th e record therefore s hows that price was considered as one of the factors relevant to th e determination of which proposals were the most highly rated.

* * *

In summary, the record reveals that the contracting officer considered all of the evaluation criteria, including price, and weighe d the proposals holistically in determining which to include in the competitive range. She did not rely exclusively on adjectival ratings and numerical scores, but rather used them as points of reference or guides in making comparisons among the offerors. Accordingly, the Court reject s KBA’s argument that the record does not reflect that the contracting officer engaged in a meaningful analys is of all relevant factors in making her competitive range determination.

CONCLUSION

For the reasons discussed above, KBA’s motion for judgment on the administrative record is DENIED , and the government and PSP’s cross-motions for judgment on the administrative record are GRANTED . The Clerk is directed to enter judgment accordingly. Each party shall bear its own costs.

IT IS SO ORDERED.

s/ Elaine D. Kaplan ELAINE D. KAPLAN Jud g e