United States Court of Appeals 

for the Federal Circuit ______________________ 

GLENN DEFENSE MARINE (ASIA), PTE LTD.,

Plaintiff-Appellant,

v.

UNITED STATES, 

Defendant-Appellee, 

AND

MLS-MULTINATIONAL LOGISTIC SERVICES LTD, 

Defendant-Appellee.

______________________ 

2012-5125

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 11-CV-718, Judge Marian Blank Horn.

______________________ 

Decided: June 25, 2013

______________________ 

DAVID S. BLACK, Holland & Knight, LLP, of McLean, 

Virginia, argued for plaintiff-appellant. With him on the 

brief was GREGORY R. HALLMARK. 

ARLENE PIANKO GRONER, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, of Washington, DC, argued for 

defendant-appellee, United States. With her on the brief 

were STUART F. DELERY, Acting Assistant Attorney Gen-
2 GLENN DEFENSE MARINE v. US

eral, JEANNE E. DAVIDSON, Director, and MARTIN F.

HOCKEY, JR., Assistant Director. 

SARAH M. GRAVES, Husch Blackwell, LLP, of Washington, DC, argued for defendant-appellee, MLSMultinational Logistic Services, LTD. With her on the 

brief were WALTER A.I. WILSON, DANIEL J. DONOHUE and 

CLAUDE P. GODDARD, JR. 

______________________ 

Before MOORE, REYNA, and WALLACH, Circuit Judges.

Opinion for the court filed by Circuit Judge WALLACH, 

Dissenting opinion filed by Circuit Judge MOORE.

WALLACH, Circuit Judge. 

Glenn Defense Marine (Asia), PTE Ltd. (“GDMA”) appeals from the order of the United States Court of Federal 

Claims granting the motions of the government and MLSMultinational Logistic Services Ltd. (“MLS”) for judgment 

on the administrative record. Glenn Defense Marine 

(Asia), PTE Ltd. v. United States, 105 Fed. Cl. 541, 583 

(Fed. Cl. 2012).1 Because GDMA failed to establish that 

the award of the contract to MLS was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, we affirm the Court of Federal Claims.

BACKGROUND

The United States Navy, Naval Supply Systems 

Command, Fleet Logistics Center Yokosuka (“Navy”) 

solicited bids on November 3, 2009 for maritime husband1 Citations to the Court of Federal Claims decision 

are from the redacted version issued for publication July 

17, 2012. The opinion was issued under seal on May 25, 

2012.

 
GLENN DEFENSE MARINE v. US 3 

ing support services to Navy ships visiting ports in four 

regions in the Western Pacific and Indian Ocean for 

separate negotiated procurements. Offerors were instructed to submit separate proposals for each region in 

which they sought a contract. The contract for each 

region would be “Firm-Fixed-Price Indefinite-Delivery, 

Indefinite-Quantity (IDIQ) type contract,” with a twelvemonth base period and four one-year options. Solicitation 

No. N62649-09-R-0041 (“Solicitation”). The Solicitation 

stated the Navy would award contracts to those proposals 

that would be “most advantageous to the Government.” 

Id. ¶ OP-1.1. The solicitation also stated that, “[t]he 

following factors, in order of importance, shall be used to 

evaluate acceptable offers: Technical Approach, Past 

Performance, and Price. The non-price factors, when 

combined, are significantly more important than price.” 

Id. ¶OP-1.8. The Navy stated it “may accept other than 

the lowest priced proposal.” Id. ¶OP-1.5.

Offerors were instructed to submit a Past Performance Matrix, Past Performance Reference Information 
4 GLENN DEFENSE MARINE v. US

Sheets, and other past performance information.2 In its 

Past Performance Matrix an offeror was required to list 

“all directly related or similar Government or commercial 

contracts or subcontracts currently being performed, or 

completed in the past three years which are similar in 

scope, magnitude[,] and complexity to that which is 

detailed in this Solicitation.” Solicitation ¶ 5.2. Offerors 

were also instructed to submit a Past Performance Reference Information Sheet identifying three to five individuals from the contracts listed in the Past Performance 

Matrix to provide references. The Technical Evaluation 

Board and the Past Performance Evaluation Team 

(“Evaluation Team”) evaluated the offers using an adjectival rating accompanied by a narrative to explain the 

basis for the adjectival rating selected: “Outstanding,” 

“Better,” “Satisfactory,” “Less than Satisfactory,” or 

2 The Solicitation explains: 

Past Performance is a measure of the degree to 

which an offeror satisfied its customers in the past 

by performing its contractual obligations on relevant directly related contracts and subcontracts 

(or partnerships or joint ventures) that are similar 

in scope, magnitude, and complexity to that required by the solicitation (completed within the 

past 3 years or currently in progress). There are 

four areas to be reviewed: Level of Capability, Efficiency, and Effectiveness in Providing Service; 

Conformance to the Terms and Conditions of the 

Contract; Level of Reasonableness and Cooperation; and Level of Commitment to Good Customer 

Service. Under the Past Performance factor, each 

of the areas to be reviewed will be given equal 

consideration.

Solicitation at ¶ OP-18.2.1.

 
GLENN DEFENSE MARINE v. US 5 

“Neutral.” These reports would be provided to the Procuring Contracting Officer/Source Selection Authority who 

would compare the strengths and weaknesses and make a 

source selection decision. After all proposals were assigned a set of adjectival ratings, the Navy would engage 

in negotiations with the offerors. After these negotiations 

the Navy would determine which proposal provided the 

best value to the Navy by engaging in a trade-off process. 

The contract would be awarded to the best value proposal.3 

3 48 C.F.R. § 15.101-1 states:

(a) A tradeoff process is appropriate when it may 

be in the best interest of the Government to 

consider award to other than the lowest priced 

offeror or other than the highest technically 

rated offeror.

(b) When using a tradeoff process, the following 

apply:

(1) All evaluation factors and significant subfactors that will affect contract award and 

their relative importance shall be clearly 

stated in the solicitation; and

(2)The solicitation shall state whether all 

evaluation factors other than cost or price, 

when combined, are significantly more important than, approximately equal to, or 

significantly less important than cost or 

price.

 
6 GLENN DEFENSE MARINE v. US

On August 12, 2010, GDMA and MLS submitted their 

proposals for the Region 1, South Asia, contract. The 

Evaluation Team received responses to reference questionnaires from four of GDMA’s references and from one 

contracting officer on a relevant contract. Each past 

performance questionnaire asked the reference to provide 

an overall rating of GDMA’s performance, a rating for 

various subfactors, and left space for the reference to 

provide additional comments. The Evaluation Team 

determined that one of GDMA’s reference contracts was 

highly relevant while the other three were moderately 

relevant. For the highly relevant contract, reviewers gave 

overall evaluations of “Better” or “Satisfactory.” The 

Husbanding Branch Chief for the highly relevant contract 

assessed GDMA’s overall performance as “Satisfactory.” 

However, he gave GDMA a “Less than Satisfactory” 

rating for several subfactors, including ease of communication, timely response to problems and ability to find 

effective solutions, and performance within negotiated 

price. J.A. 613. In the narrative comments the Husbanding Branch Chief noted that a number of pre-visit estimates were received late, government specialists 

routinely needed to request corrections, and email responses were routinely delayed. The review also noted 

two past performance letters sent to GDMA: one for not 

providing force protection barriers and the other for 

failing to provide a proposed pricing plan. A reviewer of 

one of the moderately relevant contracts indicated an 

(3) This process permits tradeoffs among cost 

or price and non-cost factors and allows 

the Government to accept other than the 

lowest priced proposal. The perceived 

benefits of the higher priced proposal shall 

merit the additional cost, and the rationale for tradeoffs must be documented 

in the file in accordance with 15.406.

 
GLENN DEFENSE MARINE v. US 7 

overall evaluation of “Outstanding,” but noted that 

GDMA had received a past performance letter about their 

customer service not being responsive. 

In its initial summary report, the Evaluation Team 

assigned GDMA an overall past performance rating of 

“Satisfactory.” J.A. 536. In its report it cautioned that 

although the references all gave GDMA overall ratings of 

“Satisfactory” or better, those rating were not substantiated with narrative comments, which instead provided 

more support for the “Less than Satisfactory” ratings 

assigned for several subfactors. The report referenced the 

negative comments identified in the reviewers’ narratives: 

non-responsiveness by customer service representatives, 

late or incomplete pre-port visit estimates, a negative past 

performance letter regarding force protection barriers, 

failure to provide a pricing plan, delinquent payments, 

and general non-responsiveness in communications. 

On November 4, 2010, the Evaluation Team forwarded its assessments to the primary contracting officer who, 

that same day, forwarded a draft of the pre-negotiation 

Business Clearance Memorandum to a member of the 

Contract Review Board (“Board”). The memorandum 

assigned GDMA an overall performance rating of “Satisfactory” but also reflected the concerns raised in the past 

performance questionnaires. Glenn Defense Marine, 105 

Fed. Cl. at 551. A Board member raised concerns with 

the primary contracting officer over the “Satisfactory” 

rating which, in his opinion, “appear[ed] dubious at best.” 

Id. (internal quotation marks omitted). After discussing 

the matter with the Evaluation Team, the primary contracting officer responded that it was a borderline decision. Id. The Evaluation Team Chairman indicated to the 

other reviewers that, in light of the Board member’s 

concern about the “Satisfactory” rating, “[i]t may be easier 

for us to adjust the ratings downward based on the currently available negative” comments, rather than attempt 

to substantiate the “Satisfactory” rating. Id. (internal 

quotation marks omitted).
8 GLENN DEFENSE MARINE v. US

Thereafter two Evaluation Team members submitted 

revised ratings for GDMA, reporting an overall rating for 

GDMA’s past performance as “Less than Satisfactory.” Id. 

at 551–52. Their comments were similar to those in their 

initial reviews, adding that the information was highly 

relevant to the region and substantiated by specific and 

detailed comments, and that the “[l]ack of effective management of subcontractors’ performance and controlling 

contract cost had an overall effect on substandard business practices of which savings to the Government was 

[sic] not always maximized during port visits.” Id. at 552 

(internal quotation marks omitted). 

The Evaluation Team awarded MLS a past performance rating of “Better,” with summary notes indicating 

“[t]he offeror was very cooperative and committed to 

customer service. This meant that the offeror’s past 

performance record led to a strong expectation of customer satisfaction and successful performance.” Id. (internal 

quotation marks omitted). In each element of each area, 

the Evaluation Team noted that there were no major 

issues or weaknesses. 

After initial evaluations were completed, a Business 

Clearance Memorandum was drafted and the primary 

contracting officer sent questions to both GDMA and MLS 

and asked each to submit a final proposal. The primary 

contracting officer raised eight past performance issues 

with GDMA based upon comments in the questionnaires.4 

No past performance questions were asked of MLS. In 

considering GDMA’s responses one reviewer noted that 

the majority of the corrective actions could not be verified 

4 These questions inquired about personnel responsiveness and communication difficulties, significant 

differences in estimated prices and final invoices, failure 

to provide purchasing plans, and failure to obtain required compensation for non-priced items. 

 
GLENN DEFENSE MARINE v. US 9 

and the responses did “not fully address the issues/deficiencies although some of their responses seem 

reasonable to resolve them.” Id. at 553 (internal quotation 

marks omitted). The primary contracting officer stated 

that GDMA’s “response to the past performance issue 

about subcontractor management satisfactorily resolved 

the concerns with that past performance issue. GDM[A]’s 

response to the other 7 issues did not satisfactorily resolve

the past performance concerns raised by the [Evaluation 

Team].” Id. (internal quotation marks omitted). 

In the final evaluation both GDMA and MLS achieved 

a Technical Approach rating of “Better” and a Security 

Plan rating of “Acceptable.” Id. GDMA’s past performance rating was “Less than Satisfactory,” while MLS’s 

past performance rating was “Better.” However, MLS’s 

price was $989,214.00 higher than GDMA’s price. 

The primary contracting officer noted that GDMA and 

MLS had relatively equal technical evaluations, but that 

MLS’s past performance rating was higher; thus when 

combining the non-price factors together, MLS was rated 

higher than GDMA. Because of the difference in price, a 

trade-off analysis was required to determine the best 

value proposal. After performing the trade-off analysis, 

the primary contracting officer concluded that MLS’s 

proposal was the most advantageous and awarded MLS 

the contract, Contract No. N62649-11-D-0015, on June 24, 

2011. 

GDMA filed a protest at the Government Accountability Office (“GAO”) on July 5, 2011. GDMA argued, in 

part, that the negative comments should not have been 

weighted as heavily in evaluation of its past performance. 

The GAO found that “‘the Navy reasonably concluded that 

MLS’s past performance offered a clear advantage over 

the past performance of GDMA, and the Navy reasonably 

documented its decision to select MLS over GDMA for this 

reason.”’ Id. at 556 (quoting In re Glenn Defense MarineAsia PTE, Ltd., B-402687.6; B-402687.7, 2011 WL 

6947628, at *8 (Comp. Gen. Oct. 13, 2011) (“GAO Deci-
10 GLENN DEFENSE MARINE v. US

sion”)). GAO denied the protest. GDMA then filed its bid 

protest with the Court of Federal Claims. The Court of 

Federal Claims denied GDMA’s motion for judgment on 

the administrative record and request for injunctive relief 

and granted the Navy and MLS’s motion for judgment on 

the administrative record. GDMA timely appealed to this 

court, which has jurisdiction under 28 U.S.C. § 1295(a)(3). 

DISCUSSION

We review the grant of a motion for judgment upon 

the administrative record in bid protest actions de novo. 

Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 

1329 (Fed. Cir. 2004). In a bid protest case, the inquiry is 

whether the agency’s action was arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with 

law and, if so, whether the error is prejudicial. 28 U.S.C. 

§1491(b)(4) (adopting the standard of 5 U.S.C. § 706); see

Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. 

Cir. 2005). “The court’s task is to determine whether ‘(1) 

the procurement official’s decision lacked a rational basis; 

or (2) the procurement procedure involved a violation of 

regulation or procedure.’” Savantage Fin. Servs., Inc. v. 

United States, 595 F.3d 1282, 1285-86 (Fed. Cir. 2010) 

(quoting Weeks Marine, Inc. v. United States, 575 F.3d 

1352, 1358 (Fed. Cir. 2009)). “The arbitrary and capricious standard applicable [in bid protests] is highly deferential.” Advanced Data Concepts, Inc. v. United States, 

216 F.3d 1054, 1058 (Fed. Cir. 2000).

Contracting officers “are entitled to exercise discretion 

upon a broad range of issues confronting them in the 

procurement process.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. 

Cir. 2001) (internal quotation marks and citation omitted). De minimis errors in the procurement process do not 

justify relief. Grumman Data Sys. Corp. v. Dalton, 88 

F.3d 990, 1000 (Fed. Cir. 1996). The protestor bears the 

burden of proving that a significant error marred the 

procurement in question. Id. The protestor’s burden is 

greater in negotiated procurement, as here, than in other 
GLENN DEFENSE MARINE v. US 11

types of bid protests because “‘the contracting officer is 

entrusted with a relatively high degree of discretion.’” 

Galen, 369 F.3d at 1330 (quoting Burroughs Corp. v. 

United States, 617 F.2d 590, 597 (Ct. Cl. 1980)). “[T]he 

greater the discretion granted to a contracting officer, the 

more difficult it will be to prove the decision was arbitrary 

and capricious.” Burroughs, 617 F.2d at 597. Moreover, 

this court accords contracting officers an even greater 

degree of discretion when the award is determined based 

on the best value to the agency. E.W. Bliss Co. v. United 

States, 77 F.3d 445, 449 (Fed. Cir. 1996). Ultimately, to 

prevail in a bid protest, the protestor must show prejudicial error. Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 

(Fed. Cir. 1996). 

GDMA argues that the Navy’s best value determination and award of the Region 1 contract to MLS was 

arbitrary and capricious due to its reliance upon the 

Evaluation Team’s flawed evaluation of GDMA and MLS. 

GDMA asserts that the Navy’s rating of GDMA’s past 

performance as “Less than Satisfactory” and its rating of 

MLS’s past performance as “Better” both lacked rational 

bases and were inconsistent with the record evidence. In 

addition, GDMA asserts that the Court of Federal Claims 

misapplied the standard for determining prejudice. We 

address each argument in turn.

I. The Navy’s Best Value Determination Was Not

Arbitrary And Capricious

“Procurement officials have substantial discretion to 

determine which proposal represents the best value for 

the government.” E.W. Bliss, 77 F.3d at 449. In this case, 

the Navy’s best value decision is supported by the record 

and well within the substantial discretion of the contracting officials. After considering all of the offerors’ proposals, references, and corrective actions, the Navy 

reasonably determined that an award to MLS would 

provide the best value. In particular, the Navy reasonably compared the negative comments in GDMA’s relevant 

references and GDMA’s inadequate corrective action to 
12 GLENN DEFENSE MARINE v. US

the reviews of MLS, which contained no negative feedback. The contracting officer determined that although 

there was a price difference between GDMA’s final proposal and MLS’s final proposal, MLS had superior past 

performance and would ultimately provide the best value 

to the Navy. This was consistent with the Solicitation, 

which expressly stated that non-price factors were significantly more important than price. Even considering 

price, the contracting officer reasonably found the real 

cost to the Navy might actually be higher if the award 

went to GDMA because of increased administration costs 

resulting from GDMA’s documented non-responsiveness 

in communications, late estimates, etc.5 Based on the 

record and recognizing the broad discretion courts afford 

agencies in the negotiated procurement process, the 

Navy’s best value determination was not arbitrary, capricious, or in violation of law. 

5 GDMA contends that the trade-off analysis does 

not explain why an award to GDMA over MLS would 

require enhanced contract oversight and management. 

However, the primary contracting officer explained that 

the increased costs may be necessary to mitigate risks 

expected based upon GDMA’s past performance. Due to 

GDMA’s documented lack of responsiveness, the primary 

contracting officer deduced that a contract with GDMA 

would require additional contract administration costs 

from a recurring need for contracting officials to follow-up 

with GDMA on material issues such as late pre-port cost 

estimates, lack of response to correspondence, and pricing 

issues. The primary contracting officer based his projection of future increased contract administration costs on 

the follow-up needed with GDMA in the past. The primary contracting officer adequately explained the factors 

considered. 

 
GLENN DEFENSE MARINE v. US 13

II. GDMA’s Past Performance Evaluation Did Not 

Lack Rational Basis

GDMA argues that the Navy’s past performance rating of “Less than Satisfactory” is inconsistent with the 

record evidence because the references upon which the 

Evaluation Team relied all rated GDMA’s overall performance as “Satisfactory” or better. However, GDMA cites 

no reason why the Navy should have only considered the 

overall ratings and disregarded the subfactor ratings and 

narrative comments. The Navy’s decision was rationally 

based on its evaluation of all of the evidence before it. 

Even though each reference rated GDMA’s performance 

as “Satisfactory” or “Better” overall, the narrative comments detracted from those ratings. The Navy reasonably 

considered the entire record, including several “Less than 

Satisfactory” subfactor ratings and negative comments 

from the narrative portion of the questionnaires.6 The 

6 The dissent cites to the overall and subfactor ratings as if these adjectival ratings can be added up and 

“averaged out” to score the contractor. Dissent Op. 3-4. 

However, these reports are not subject to a mathematical 

calculation. The Evaluation Team considered the adjectival ratings in light of the accompanying narrative 

comments, which was within their discretion. E.W. Bliss, 

77 F.3d at 449 (discussing the substantial discretion with 

which procurement officials are entrusted to find the best 

value for the government). Moreover, notwithstanding 

the single positive comment the dissent cites, Dissent Op. 

at 3–4, the reviewer also noted that GDMA’s “prices for 

the non-contract are rather high and attempt to negotiate 

the cost seem pointless.” J.A. 611. Additionally, she 

commented that there were “[n]o major issues under the 

purview of this contract except the DAO Representative 

in India complained about their services during the USS 

Shiloh and USS Lassen visit to GOA in Apr 10. He complained about GDMA’s inability to provide pier side force 

protection services utilizing containers. The pier area 

 
14 GLENN DEFENSE MARINE v. US

evaluation Team’s report stated that “[o]verall, [GDMA] 

was less than fully cooperative and did not demonstrate a 

commitment to service.” Glenn Defense Marine, 105 Fed. 

Cl. at 554 (internal quotation marks omitted). The primary contracting officer observed that the majority of 

GDMA’s re-visit estimates for port visits were received 

late and repeatedly required corrections. He also indicated that GDMA had failed to provide force protection 

barriers as specified by the ships in their order. In another instance, GDMA failed to provide a pricing plan, which 

was necessary to insure that non-priced items were fairly 

and reasonably priced. Finally, the primary contracting 

officer noted routine delays in GDMA’s responses to 

questions, which “exacerbate[d] the short lead time for 

arranging port visit services.” Id. at 566 (internal quotawas not cordoned off appropriately.” Id. At any rate, our 

role is not to search for statements that could support a 

reversal, but rather, to determine whether there was a 

rational basis for the Navy’s decision. 

 
GLENN DEFENSE MARINE v. US 15

tion marks omitted).7 The Evaluation Team’s final Summary Report for GDMA indicated: 

7 The primary contracting officer’s notes stated: 

1-6 of 9 pre-visit estimates for port visits covered by this contract from 27 OCT 09–present 

were received late. In addition, the contract specialists at FISC Det. Singapore routinely have to 

request corrections to the PCEs received for port 

visits (e.g. not all items requested in the LOGREQ 

[logistical requirements] are included in the PCE 

[pre-visit cost estimates]).

2-A negative past performance letter regarding the USS LASSEN and USS Shiloh port visits 

to Goa, India was sent to GDMA on 6 July 10. 

GDMA did not provide force protection barriers as 

specified by the ships in their ordering LOGREQs. 

A complaint from State Department personnel in 

Goa led to the issuance of this past performance 

letter. 

3-A negative past performance letter regarding performance under this contract was sent to 

GDMA on 14 JUN 10. GDMA has not provided a 

proposed pricing plan for insuring that non-priced 

items are offered at fair and reasonable prices. 

This pricing plan is a deliverable specified under 

this contract. Fair and reasonable pricing for nonpriced items is an unresolved issue under this 

contract. The FISC Det. Singapore office has yet 

to receive competitive price quotations for any 

non-priced services provided under this contract.

 
16 GLENN DEFENSE MARINE v. US

For Region 1, [GDMA’s] past performance on previously awarded relevant contracts did not meet 

some significant requirements. Although the offeror was generally responsive to changes in requirements, provided timely services and had 

reasonably good control over managing subcontractors, there were several noted deficiencies in 

its performance when it came to the reliability 

and consistency of its customer service practices, 

transparency in pricing and ease of communications.

Id. at 554. 

Moreover, the Navy’s rating was not premised on 

these references alone. Before the Navy’s final rating, the 

Navy gave GDMA an opportunity to respond to specific 

concerns. GDMA acknowledged those issues and explained it had taken or was in the process of taking corrective action. The Navy conducted a follow-up review 

and found that these corrective actions had not adequately addressed its concerns. In considering GDMA’s corrective action in response to the negative reviews, the 

reviewer found GDMA’s corrective action “lacked sufficient details for the [Evaluation Team] to determine the 

offeror’s effectiveness in addressing the deficiencies.” Id. 

In sum, GDMA’s past performance record led the Evaluation Team “‘to expect marginal customer satisfaction and 

less than fully successful performance.’” Id. (quoting the 

Evaluation Team’s Summary Report). 

4-Email responses from GDMA representatives to questions from the FISC Det. Singapore 

contract specialists are routinely delayed. The delayed responses exacerbate the short lead time for 

arranging port visit services.

Glenn Defense Marine, 105 Fed. Cl. at 566. 

 
GLENN DEFENSE MARINE v. US 17

Based upon the broad discretion courts afford agencies in the procurement process and based upon the 

ratings and comments in the past performance questionnaires, the analysis and review performed by the Evaluation Team and the contracting officer, as well as the 

discussions between GDMA and the Navy, this court 

cannot conclude that the overall past performance rating 

of “Less than Satisfactory” lacked rational basis. The 

Navy established a rational basis for its decision, explaining that a higher rating was not substantiated by the 

comments, and the agency’s reasonable interpretation of 

the facts is entitled to considerable deference. 

III. MLS’s Past Performance Evaluation Did Not Lack 

Rational Basis

GDMA asserts that the Navy’s rating of MLS’s past 

performance as “Better” was arbitrary and capricious on 

the grounds that the “underlying finding” that the contracts of MLS’s subcontractors were highly relevant lacks 

a rational basis. GDMA asserts that the Evaluation 

Team could not provide a rational basis for finding the 

contracts performed by MLS’s subcontractors were of 

similar scope, magnitude, and complexity to that in the 

Solicitation because the record is incomplete. 

The Solicitation stated that “[p]ast [p]erformance is a 

measure of the degree to which an offeror satisfied its 

customers in the past by performing its contractual obligations on relevant directly related contracts and subcontracts . . . that are similar in scope, magnitude, and 

complexity to that required by the solicitation. . . .” Solicitation ¶ OP-1.8.2.1. It also stated that “[i]n the case of an 

offeror whose past performance is somehow not similar in 

scope, complexity, or magnitude, or otherwise lacks relevance to some degree then the Government will take this 

into consideration and evaluate accordingly . . ..” Id. ¶ OP1.8.2.4.

MLS’s subcontracts involved husbanding services at 

many of the same ports covered by the Solicitation, for a 
18 GLENN DEFENSE MARINE v. US

variety of vessels of various sizes that “‘spend the majority of their useful life traveling from port to port,’” similar 

to the services required by this Solicitation. Glenn Defense 

Marine, 105 Fed. Cl. at 575 (quoting GAO Decision at *8). 

The Navy’s determination of relevance is owed deference 

as it is among “the minutiae of the procurement process,” 

which this court “will not second guess.” E.W. Bliss, 77 

F.3d at 449 (finding matters such “as technical ratings 

and the timing of various steps in the procurement” to 

involve discretionary determinations); see also Linc Gov’t 

Servs., LLC v. United States, 96 Fed. Cl. 672, 718 (2010) 

(“Thus, when evaluating an offeror’s past performance, 

the [Source Selection Authority] may give unequal weight,

or no weight at all, to different contracts when the [Source 

Selection Authority] views one as more relevant than 

another.”) (internal quotation marks and citations omitted); 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 ‘relevant’ past performance falls within the [Source Selection Authority’s] 

considered discretion.”).

Additionally, the Court of Federal Claims noted that 

there is no evidence that MLS’s past performance would 

have been evaluated any lower than “Better” if the subcontractors’ references were given less weight. The 

Evaluation Team’s summary report indicated that:

The offeror was very responsive to customer service issues, provided timely services, flexible when 

responding to changes in requirements, maintained control over managing subcontractors, was 

transparent in its pricing processes and was effective in communications. Overall, the offeror was 

very cooperative and demonstrated a commitment 

to customer service. There were no substantiated 

problems or issues documented in this past performance assessment. Therefore, based upon the 

offeror’s past performance record, it leads the 
GLENN DEFENSE MARINE v. US 19

[Evaluation Team] to expect a strong customer 

satisfaction and fully successful performance. 

Glenn Defense Marine, 105 Fed. Cl. at 555 (quoting the 

Evaluation Team’s Summary Report).8 Accordingly, the 

Court of Federal Claims’ determination did not lack 

rational basis. 

IV. GDMA Did Not Allege Prejudicial Error

If GDMA had prevailed in showing error in the award 

to MLS, it would also bear the burden of showing that 

error was prejudicial. As discussed above, the Navy’s past 

performance evaluations were rationally based. Moreo8 GDMA also argues that the Court of Federal 

Claims improperly relied on the Navy’s submissions to 

GAO, which it argues are post hoc rationalizations, to 

support its decision. The Navy’s submissions to the GAO 

were those required by 31 U.S.C. § 3553(b)(2), and included an articulation of the agency’s reasoning in response to 

the protest. All of the materials submitted to the GAO 

are part of the administrative record before the Court of 

Federal Claims. 31 U.S.C. § 3556. In a case involving a 

post-award conflict of interest investigation and analysis, 

this court noted that courts “reviewing bid protests routinely consider . . . evidence developed in response to a bid 

protest.” Turner Constr. Co. v. United States, 645 F.3d 

1377, 1386 (Fed. Cir. 2011). The Court of Federal Claims 

cited these submissions to support its finding that the 

subcontractors’ references were highly relevant because 

they required services that were “similar in scope, magnitude, and complexity.” Glenn Defense Marine, 105 Fed. Cl. 

at 573–74 (internal quotation marks omitted). Even if the 

submissions were not appropriately considered, based 

upon the high ratings on all of the references and only 

positive comments, the Navy’s rating of MLS’s past performance does not lack a rational basis. 

 
20 GLENN DEFENSE MARINE v. US

ver, the Court of Federal Claims was correct in finding 

that GDMA was not prejudiced by receiving a “Less than 

Satisfactory” rating, as opposed to a “Satisfactory” rating. 

To prevail in a bid protest case, the protestor must 

show that it was prejudiced by the government’s actions. 

Bannum, 404 F.3d at 1351. To establish prejudice, GDMA 

must show that there was a substantial chance it would 

have received the contract award but for the Navy’s 

allegedly erroneous past performance rating. See id. at 

1358; Allied Tech. Grp., Inc. v. United States, 649 F.3d 

1320, 1326 (Fed. Cir. 2011); Statistica, Inc. v. Christopher, 

102 F.3d 1577, 1582 (Fed. Cir. 1996). Unlike other issues 

in this case, prejudice is a question of fact that this court 

reviews for clear error. Bannum, 404 F.3d at 1353–54. 

The Court of Federal Claims found that even if 

GDMA should have gotten a “Satisfactory” rating instead 

of “Less than Satisfactory” for past performance “it is not 

at all clear a trade-off analysis would have resulted in 

[GDMA] receiving the contract award.” Glenn Defense 

Marine, 105 Fed. Cl. at 572. The court explained: “Even 

with a Satisfactory rating for past performance, [GDMA] 

still would have had an inferior past performance rating 

as compared to MLS, and still would have had negative 

past performance comments in the record, which [GDMA] 

did not challenge.” Id. at 571. GDMA does not provide 

anything but conjecture that even with a “Satisfactory” 

rating it would have had a substantial chance of prevail-
GLENN DEFENSE MARINE v. US 21

ing in the bid.9 The Court of Federal Claims did not 

clearly err in finding GDMA had not shown prejudice 

from being rated “Less than Satisfactory” rather than 

“Satisfactory.” 

CONCLUSION

Accordingly, the Court of Federal Claims’ decision is 

affirmed. 

AFFIRMED

9 GDMA asserts that the court erred in “[r]equiring 

GDMA to establish that it is ‘clear’ that a trade-off analysis would have resulted in GDMA receiving [an] award.” 

Appellant’s Br. at 64. Contrary to GMDA’s argument, the 

Court of Federal Claims did not require it to show it 

would ‘clearly’ have received the contract award but for 

the alleged error. Rather, the Court of Federal Claims 

stated that “it is not at all clear” that GDMA would have 

received the contract award but for the past performance 

rating. It thoroughly recited the “substantial chance” 

standard in its standard of review section, see Glenn 

Defense Marine, 105 Fed. Cl. at 558-59, and applied that 

standard in its analysis of the facts. 

 
United States Court of Appeals 

for the Federal Circuit ______________________ 

GLENN DEFENSE MARINE (ASIA), PTE LTD.,

Plaintiff-Appellant,

v.

UNITED STATES, 

Defendant-Appellee, 

AND

MLS-MULTINATIONAL LOGISTIC SERVICES LTD, 

Defendant-Appellee.

______________________ 

2012-5125

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 11-CV-718, Judge Marian Blank Horn.

______________________ 

MOORE, Circuit Judge, dissenting.

The majority in this case affirms the decision by the 

Court of Federal Claims granting judgment on the administrative record in favor of the government. I dissent 

because the court erred by concluding that the U.S. Navy 

had a rational basis for finding that Glenn Defense Marine (Asia), PTE Ltd. (GDMA) deserved an overall rating 

of “Less than Satisfactory” for its past performance. That 

rating lacks a rational basis, both legally and mathematically. All of GDMA’s references rated its past performance as “Outstanding,” “Better,” or “Satisfactory.” 
2 GLENN DEFENSE MARINE v. US

As part of the U.S. Navy’s process of awarding a contract for maritime husbanding services in the South Asia 

region, a Past Performance Evaluation Team (PPET) 

evaluated the offerors’ past performance. The PPET was 

instructed to use adjectival ratings: “Outstanding,” “Better,” “Satisfactory,” “Less than Satisfactory,” or “Neutral.”

Four of GDMA’s references provided feedback regarding its past performance. The PPET determined that one 

of the prior contracts, the South Asia contract, was highly 

relevant to the contract at issue while the other three 

were moderately relevant. Of the moderately relevant 

contracts, two reviewers rated GDMA as “Outstanding” 

while the third gave it a rating of “Better.” The reviewer 

for the highly relevant contract rated GDMA as “Better.” 

The PPET received a second questionnaire regarding the 

South Asia contract from the contracting officer, who 

rated GDMA as “Satisfactory.” The chart below summarizes the references’ overall ratings of GDMA’s past 

performance. 

Reference Overall Rating

South Asia Contract

 First Reference

 Second Reference

Better 

Satisfactory

Thailand Contract Better 

Singapore Contract Outstanding

BIMET Contract Outstanding

Despite these high past performance ratings, the 

PPET gave GDMA an overall past performance rating of 

“Satisfactory.” This seems inconsistent with the ratings 

themselves. Even more perplexingly, based on no new or 
GLENN DEFENSE MARINE v. US 3 

additional information, the PPET later revised GDMA’s 

past performance rating downward to “Less than Satisfactory.” The purported basis for such a low rating was 

negative comments that some of GDMA’s references 

included in the past performance questionnaires they 

submitted. GDMA’s references, however, did not themselves believe that their own negative comments warranted such a low rating. And GDMA’s references were 

uniquely positioned to consider the appropriate impact to 

give their own negative comments on GDMA’s overall 

rating, given their interaction with GDMA over the course 

of the contracts at issue. The PPET group, which decided 

to give GDMA a less than satisfactory rating, based their 

decision exclusively on these references; they had no 

additional or independent information which would

warrant lowering the ratings. GDMA received two “Outstanding,” two “Better,” and one “Satisfactory” rating. In 

what universe do these ratings average out to an overall 

rating of “Less than Satisfactory”? The Navy lacked a 

rational basis for giving GDMA a lower rating than any of 

the company’s references and for weighing the negative 

comments on the questionnaires far more heavily than 

the references themselves did. 

It is important to understand that each of these reviews had an overall past performance rating, nine subcategory ratings, and a section for comments. It is true 

that one of the two reviewers for the South Asia contract 

listed a number of problems that he encountered with 

GDMA in the performance of the contract. Even this 

reviewer, who rated GDMA “Satisfactory” overall, gave 

GDMA one “Better,” four “Satisfactory,” and four “Less 

than Satisfactory” subcategory ratings. And the primary 

reviewer for the South Asia contract, who gave GDMA a 

“Better” overall rating for the same contract, gave GDMA 

four “Outstanding,” four “Better,” and one “Satisfactory” 

rating for the same nine subcategory rating criteria. This 

reviewer noted in her comments some of the same problems, but also included positive comments such as, “[t]hey 

are very professional and their staff are very knowledgea-
4 GLENN DEFENSE MARINE v. US

ble and experience[d].” She further explained that, “[t]he 

ports in South Asia ha[ve] limited infrastructure and 

GDMA has the ability to support a carrier visit to Chennai with limited services available.” In the other three 

contracts, there were a total of twelve “Outstanding,” six 

“Better,” and one “Satisfactory” subcategory rating. In 

light of this record, PPET did not have a rational basis for 

rating GDMA “Less than Satisfactory” overall for past 

performance. 

PPET did its own cumulative version of the nine subcategory rating criteria, and its conclusions regarding the 

subcategories seem just as divorced from the underlying 

data as the overall ratings. For example, the PPET gave 

GDMA an overall rating of “Satisfactory” for the subfactor 

“Reliability and consistency of the company’s key personnel.” The individual ratings for this subfactor, however, 

were three “Outstanding” ratings, one “Better,” and one 

“Satisfactory.” Similarly, for the subfactor of “Timeliness 

in providing goods and/or services in accordance with the 

contract schedule,” the PPET rated GDMA as “Satisfactory” even though GDMA’s references gave it three “Outstanding” ratings, one “Better,” and one “Satisfactory.” 

GDMA’s past performance was not flawless, as the 

ratings clearly reflect. Certainly this record would have 

supported a past performance rating of “Better” or maybe 

even “Satisfactory,” but there is no rational basis for 

PPET’s decision to rate GDMA “Less than Satisfactory.” 

GDMA was one of only two bidders in the competitive 

range, and its price was roughly 64% lower than the other 

bidder. GDMA was rated equal to the other bidder on 

every factor except past performance, where the other 

bidder received a rating of “Better.” Based on GDMA’s 

lower price and equivalency in other areas, I believe that 

it would have had a substantial chance to receive the 

contract but for the Navy’s errors regarding past performance. See Bannum, Inc. v. United States, 404 F.3d 1346, 

1351 (Fed. Cir. 2005). Therefore, I dissent.