United States Court of Appeals 

for the Federal Circuit 

__________________________ 

ALLIED TECHNOLOGY GROUP, INC., 

Plaintiff-Appellant, 

 v. 

UNITED STATES, 

Defendant-Appellee, 

AND

MONSTER GOVERNMENT SOLUTIONS, LLC, 

Defendant-Appellee. 

__________________________ 

2010-5131 

__________________________ 

Appeal from the United States Court of Federal 

Claims in Case no. 10-CV-120, Judge Thomas C. Wheeler. 

__________________________ 

Decided: June 9, 2011 

__________________________ 

FREDERICK W. CLAYBROOK, JR., Crowell & Moring, 

LLP, of Washington, DC, argued for plaintiff-appellant. 

With him on the brief were GUNJAN R. TALATI and 

LINDSAY P. DENAULT. 

MICHAEL N. O’CONNELL, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-
2 ALLIED TECHNOLOGY GROUP v. US

appellee The United States. With him on the brief were 

TONY WEST, Assistant Attorney General, JEANNE E.

DAVIDSON, Director, and KIRK MANHARDT, Assistant 

Director. 

RICHARD L. MOORHOUSE, Greenberg Traurig, LLP, of 

Washington, DC, argued for defendant-appellee Monster 

Government Solutions, LLC. With him on the brief were, 

JACOB B. PANKOWSKI, DAVID P. GOODWIN and WILLIAM M.

JACK. 

__________________________ 

Before BRYSON, CLEVENGER, and LINN, Circuit Judges. 

Opinion for the court filed by Circuit Judge LINN. 

Dissenting opinion filed by Circuit Judge BRYSON. 

LINN, Circuit Judge. 

This is a post-award bid protest case filed by Allied 

Technology Group, Inc. (“Allied”) against the United 

States (“government” or “DOJ”), contesting the government’s award of a contract for an internet job listing 

website to intervenor Monster Government Solutions, 

LLC (“Monster”). The Court of Federal Claims (“Claims 

Court”) granted judgment on the administrative record in 

favor of the government and Monster (collectively, Appellees), affirming the determination by the Government 

Accountability Office (“GAO”) that the award was proper. 

Allied Tech. Group, Inc. v. United States, 94 Fed. Cl. 16 

(2010) (“Opinion”). For the reasons set forth below, this 

court affirms. 
ALLIED TECHNOLOGY GROUP v US 3

I. Background 

A. DOJ’s Request for Quotations 

On August 13, 2008, the DOJ issued a draft Request 

for Quotations (“RFQ”) for an automated recruiting and 

staffing system (“the System”), which performs the basic 

functions associated with the internet listing of DOJ job 

postings and the submission and tracking of applications 

submitted in response to the vacancies. 

The draft RFQ contained a number of technical requirements that are discussed below in association with 

the final RFQ. In addition, it contained two provisions 

particularly relevant to Allied’s protest. First, it required 

that “[t]he offeror shall highlight any provisions that 

conflict with the Terms and Conditions outlined in Document B [setting forth the substantive terms of the contract]. Conflicting provisions will be considered as 

exceptions to the Terms and Conditions of the RFQ.” J. 

App’x 172. Second, it noted that “[t]he offeror is advised 

that any exceptions taken to the terms and conditions of 

the RFQ may adversely impact its evaluation rating. The 

Government reserves the right not to accept any exceptions to this RFQ.” Id.

The draft RFQ provoked comments from potential offerors, including Monster and Allied. Allied objected to 

the provision that conflicting terms will be considered as 

exceptions, noting that “[t]his language does not allow for 

consideration of alternative terms that meet the agency’s 

needs and suggest[s] that an offeror runs the risk of a 

proposal being found nonresponsive if any terms in an 

offeror’s standard MSA [(Master Subscription Agreement)] or SLA [(Service Level Agreement)] are highlighted as directed. This would be inconsistent with FAR 
4 ALLIED TECHNOLOGY GROUP v. US

[(Federal Acquisition Regulation)] 12, as noted above, and 

should be clarified.” 

The DOJ’s final RFQ called for an “effective userfriendly web-based application” for initially handling 

about 11,000 employees, and capable of expanding to 

cover up to 115,000 employees as other sub-agencies 

converted to the system. The RFQ included four evaluation factors, listed here with their contribution to the total 

score: technical merit (60 points), live system demonstration (30 points); past performance (10 points); and price 

(discussed below). 

Regarding price, the RFQ explicitly noted that “[t]he 

Government considers Technical Merit, System Demonstration and Past Performance factors, when combined, to 

be significantly more important than Price,” but that the 

final award would be made on the basis of a best value 

determination, wherein “[t]he total evaluated price will be 

the determining factor for award where two or more 

quotes are considered substantially technically equal.” If, 

however, “the Department determines that there are 

significant technical differences between the capabilities 

of two or more Offerors, then a more expensive quote may 

be selected for award where the DOJ determines that the 

value of the selected quote is worth the price differential.” 

The technical merit factor included a “Requirements 

List” detailing 114 technical requirements, each rated as 

“High,” “Medium,” or “Low” priority. Three high priority 

requirements are relevant here. First, the RFQ required 

that it take precedence over any other agreement between 

the government and the offeror. Second, the RFQ required compliance with Section 508 of the Rehabilitation 

Act of 1973, which guaranteed access to the System for 

people with disabilities under the FAR. The RFQ noted 

that the contractor “must comply” with the Federal Electronic and Information Technology Accessibility Stan-
ALLIED TECHNOLOGY GROUP v US 5

dards set forth at 36 C.F.R. § 1194. Moreover, the RFQ 

required that a Section 508 Compliance Certification be 

signed by the contractor. Finally, the RFQ required that 

the System “shall use unique employee identifiers in lieu 

of social security numbers or other personally identifiable 

information.” 

Critically, the final RFQ noted that to be eligible, and 

offeror must “accept[] each of the requirements, provisions, terms and conditions, and clauses stated in all 

sections of this RFQ.” The final RFQ also maintained the 

language from the draft RFQ objected to by Allied in a 

section titled “Part 4 – Additional Documents,” requiring 

that: 

The Offeror shall highlight any provisions 

that conflict with the Terms and Conditions outlined in Document B. These 

documents will be reviewed by the Government. Any Terms and Conditions that 

are considered unacceptable by the Government and cannot be resolved may result in the Offeror being removed from 

consideration. Conflicting provisions will 

be considered as exceptions to the Terms 

and Conditions of the RFQ. 

Further, the RFQ warned “that any exception taken to 

the terms and conditions of the RFQ may adversely 

impact its evaluation rating.” The RFQ noted that “[t]he 

Government intends to make an award on the basis of 

initial quotation without the use of discussions. . . . 

However, the Government reserves the right to use discussions after receipt of quotations if it is considered in 

the Government’s best interests to do so.” 
6 ALLIED TECHNOLOGY GROUP v. US

B. Allied’s and Monster’s Bids 

Only Allied and Monster submitted bids in response 

to the RFQ. Both offerors submitted price plans for 

systems intended for between 5,000 to 115,000 users. The 

Contracting Officer evaluated the proposals at the initial 

anticipated user count of 10,000 to 15,000. Allied’s proposed five-year price was approximately $7.0 million, 

assuming a 30 percent annual prepayment discount. 

Without the prepayment discount (as called for by the 

RFQ), Allied’s price totaled approximately $11.7 million 

over five years. Allied’s bid contained a section titled 

“Part 5 – Exceptions.” Allied stated: 

[The] nature of the Avue Platform requires that the Avue MSA, signed with all 

clients, takes precedence over all other 

agreements/terms and conditions across 

our entire client base. As such, Section 18, 

Order of Precedence, needs to be removed 

from the BPA [(“Blanket Purchase Agreement”)] Terms and Conditions, leaving the 

MSA as the overriding document. The 

remainder of the exceptions outlined below flows [sic] from this change. 

As described by the Contracting Officer, and not disputed 

by Allied, the exceptions resolve into the following: 

• Allied’s MSA would govern the confidentiality of 

data, the government’s rights in data produced under the contract, and the rights of inspection and acceptance. 

• Allied’s MSA would require that “Any early termination of this Agreement shall not result in a refund or 

reduction of the Annual Subscription Fees and the 
ALLIED TECHNOLOGY GROUP v US 7

Annual Extranet Fees for that portion of the subscription Period so terminated, regardless of whether 

such fees are paid on an annual or monthly basis.” 

• If the government performs penetration testing 

pursuant to technical requirement 112, Allied would 

require “extensive financial indemnity coverage.” 

• Allied would remove the RFQ section requiring 

monthly payment in arrears. 

• Relatedly, Allied would have the Initialization Fee 

paid up front to take advantage of the 30% discount 

reflected in its price quote, in conflict with the RFQ 

requirement that payments be made monthly in arrears. 

Aside from these exceptions, it is undisputed that Allied’s 

proposal met all the requirements of the RFQ. 

Monster’s proposal certified that it would meet all 114 

technical requirements for a total five-year price of approximately $3.2 million. In particular, Monster indicated that its “system, training content, and its output” 

are compatible with Section 508 of the Rehabilitation Act, 

and also the privacy provision requiring the use of unique 

employee identifiers in lieu of Social Security numbers. 

Moreover, Monster submitted the required signed Section 

508 Compliance Certification, certifying that its service is 

in compliance with the Electronic and Information Technology Accessibility Standards, 36 C.F.R. § 1194. In a 

section titled “PART 5. EXCEPTIONS,” Monster included 

the following overview of its Section 508 compliance: 

The information contained within this 

voluntary Product Accessibility Template 

(“VPAT”) is the result of an independent 

audit . . . [that] tested the compliance of 

the Monster Government Solutions hiring 
8 ALLIED TECHNOLOGY GROUP v. US

Management – Employer 5.0 (“HM – Employer 5.0”) application with the requirements of Section 508 of the Rehabilitation 

Act of 1972 as Amended (1998). 

HM – Employer 5.0 is generally compliant 

with exceptions to the relevant Section 

508 requirements. HM – Employer 5.0 

has minor compliance exceptions with the 

accessibility of forms, text equivalents for 

non-text elements, and keyboard accessibility. 

C. Contracting Officer’s Award Decision 

The DOJ established a technical evaluation panel 

(“the Panel”) to evaluate the technical merit of the competing proposals. The members of the Panel scored each 

product for technical strengths and weaknesses under the 

criteria of the RFQ. The Contracting Officer received the 

scores from the Panel, and asked for further comments 

and descriptions from the members of the Panel. The 

Panel members then attended the live systems demonstration, and collected past performance scores regarding 

both companies’ products. The Contracting Officer averaged the scores awarded by each member of the Panel for 

technical merit and the live demonstration and added the 

average to the past performance scores. The result was a 

total score for Allied of 85.5/100, and for Monster of 

79.49/100. 

On August 2, 2009, the Contracting Officer awarded 

the contract to Monster. In his later-issued memorandum 

opinion, the Contracting Officer explained his award 

decision on two independent bases. First, he determined 

that Allied’s exceptions were “a refusal by Allied/Avue to 

accept material requirements, provisions, terms and 

conditions and clauses to the RFQ,” and determined that 
ALLIED TECHNOLOGY GROUP v US 9

this made Allied’s offer “unacceptable from a business 

standpoint.” The Contracting Officer stated that “Monster took no exceptions.” Second, and despite Allied’s 

exceptions, the Contracting Officer compared Allied’s and 

Monster’s proposals on their merits because they were the 

only two offerors. 

On the merits, the Contracting Officer determined 

that Monster provided the best value for the project, 

because Allied’s “small technical advantage” could not 

justify the increased price: “There is no reasonable way to 

assert that Allied/Avue, receiving a technical score of 

5.04% higher than Monster justifies paying more than 

twice as much, resulting in millions of additional dollars 

over the five year term of the BPA.” The Contracting 

Officer further noted that because Allied’s price was based 

on the DOJ taking advantage of a 30% up-front payment 

arrangement, the true price disparity between Allied and 

Monster was even more than 100%. At the end of his 

analysis, the Contracting Officer concluded that “even if 

[Allied’s] business proposal were acceptable, which it is 

not, Monster still presents the best value to the Department.” 

D. GAO Bid Protest 

Allied filed a post-award bid protest with GAO, challenging the Contracting Officer’s finding that Allied’s 

quotation was unacceptable, his finding that Monster’s 

quotation was acceptable, and the methodology of the 

contract award. The GAO denied Allied’s protest because: 

(1) Allied was put on notice of the risks of taking exception and does not dispute that it took exceptions; (2) the 

phrase “cannot be resolved” in the RFQ could not reasonably be read to require discussions; and (3) even if it 

could, this would result in a patent ambiguity within the 

contract between the discussion requirement and the 
10 ALLIED TECHNOLOGY GROUP v. US

statement that the DOJ intended to make the award 

without discussions, and that Allied’s failure to protest 

this patent ambiguity prior to bidding waived its right to 

assert that discussions were required. The GAO also 

rejected Allied’s argument that Monster should have been 

disqualified on the basis of alleged noncompliance with 

Section 508 of the Rehabilitation Act and the collection of 

Social Security numbers through USAJOBS. As to the 

first point, the GAO determined that Allied’s statements 

of compliance, and the determination by the independent 

consultant that Monster was “generally compliant,” did 

not mandate a determination of unacceptability. 

The GAO did not rule on Allied’s protest of the best 

value determination and the alleged procedural deficiencies of the rating system, because it held that Allied was 

not an interested party and could not raise those issues, 

since the agency had “reasonably found Allied’s quotation 

to be unacceptable and [Monster’s] quotation to be acceptable.” 

E. Complaint in the Court of Federal Claims 

Allied continued its bid protest by filing a complaint 

in the Claims Court, making essentially the same arguments it did to the GAO. The Claims Court granted 

Appellees’ motion for judgment on the administrative 

record, holding that Allied’s disqualification and Monster’s non-disqualification were proper. The Claims Court 

agreed with Allied that “there were errors in DOJ’s technical evaluation process,” but determined that Allied 

could not show prejudice because the large price gap 

between Allied and Monster made it impossible for Allied 

to “reasonably show that it would have received the 

award in the absence of DOJ’s errors.” Relying on Electronic Data Systems, LLC v. United States, 93 Fed. Cl. 

416 (May 13, 2010) and Data General Corp. v. Johnson, 
ALLIED TECHNOLOGY GROUP v US 11

78 F.3d 1556, 1563 (Fed. Cir. 1996), the Claims Court 

reasoned that “[t]he record simply does not suggest that 

any DOJ errors reasonably could offset the price difference so as to make DOJ’s selection improper.” 

Allied timely appealed. This court has jurisdiction 

under 28 U.S.C. § 1295(a)(3). 

II. DISCUSSION

Allied’s appeal presents three distinct issues: (1) 

Whether the government was required to engage in 

discussions with Allied over the exceptions in Allied’s 

offer before disqualifying it; (2) Whether the Contracting 

Officer properly considered Monster’s offer despite its 

exceptions to Section 508; and (3) Whether the government acted arbitrarily and capriciously in making its best 

value determination. We address the first two issues and, 

in light of our decision, need not address the third. 

A. Standard of Review 

This court reviews the Claims Court’s grant of a 

judgment on the administrative record de novo, applying 

the same standard over the GAO’s decision as did the 

Claims Court. Bannum, Inc. v. United States, 404 F.3d 

1346, 1350-51 (Fed. Cir. 2005). The plaintiff-appellant 

must show that the Contracting Officer’s award “lacked a 

rational basis,” Centech Grp., Inc. v. United States, 554 

F.3d 1029, 1037 (Fed. Cir. 2009), or “violates to prejudicial 

effect an applicable procurement regulation,” CACI Field 

Servs., Inc. v. United States, 854 F.2d 464, 466 (Fed. Cir. 

1988). The test under the first ground is “whether the 

contracting agency provided a coherent and reasonable 

explanation of its exercise of discretion, and the disappointed bidder bears a heavy burden of showing that the 

award decision had no rational basis.” Centech, 554 F.3d 

at 1037. The test under the second ground is whether the 
12 ALLIED TECHNOLOGY GROUP v. US

disappointed bidder has shown “a clear and prejudicial 

violation of applicable statutes or regulations.” Id. To 

show prejudice, the protestor must show that “but for the 

alleged error, there was a substantial chance that [it] 

would receive an award – that it was within the zone of 

active consideration.” Statistica, Inc. v. Christopher, 102 

F.3d 1577, 1581 (Fed. Cir. 1996) (internal citations omitted). 

Whether a government contract is ambiguous and 

whether that ambiguity is patent or latent are questions 

of law, reviewed without deference. Stratos Mobile Networks USA, LLC v. United States, 213 F.3d 1375, 1380 

(Fed. Cir. 2000). 

B. The Disqualification of Allied’s Proposal 

1. 

Allied argues that the RFQ unambiguously requires 

the Contracting Officer to engage in discussions with an 

offeror who takes exception to any terms in the contract, 

before the Contracting Officer may properly disqualify 

such an offeror from consideration. This is based primarily on the phrase italicized below from an RFQ section 

titled “Part 4 – Additional Documents”: 

Any Terms and Conditions that are considered unacceptable by the Government 

and cannot be resolved may result in the 

Offeror being removed from consideration. 

(emphasis added). Allied interprets this to mean that 

exceptions “would not be grounds for disqualification 

unless the conflicts as a whole were thought to be significant enough to warrant disqualification (‘may’) and could 

not be resolved through discussions (‘cannot be resolved’).” 

Br. of Allied at 22. 
ALLIED TECHNOLOGY GROUP v US 13

Appellees counter that two provisions unambiguously 

give the Contracting Officer the discretion over whether 

to engage in discussions. First, in the general quote 

instructions, the RFQ states: 

[I]nitial offers shall contain the Offeror’s 

best offer from a technical and price 

standpoint. The Government, however, 

reserves the right to conduct discussions if 

later determined by the Contracting Officer to be necessary. 

(emphasis added). Second, in a section titled “5.0 Discussions,” the RFQ stated: 

The Government intends to make an 

award on the basis of initial quotations 

without the use of discussions. Offerors 

should therefore submit their most advantageous quote in response to the initial solicitation. However, the Government 

reserves the right to use discussions after 

receipt of quotations if it is considered in 

the Government’s best interests to do so. 

(emphases added). Appellees further argue that Allied’s 

interpretation would create a patent ambiguity in the 

contract—between giving the Contracting Officer the 

discretion to engage in discussions, but requiring the 

Contracting Officer to engage in discussions in the case of 

exceptions—which Allied cannot challenge under the 

holding of Blue & Gold Fleet, L.P. v. United States, 492 

F.3d 1308, 1315 (Fed. Cir. 2007) (considering a disappointed bidder’s argument on the basis of a patent ambiguity waived for failure to raise it prior to bidding). 

Allied makes two arguments in response. First, Allied 

argues that the Appellees’ interpretation would fail to 

give meaning to the “cannot be resolved” phrase in the 
14 ALLIED TECHNOLOGY GROUP v. US

RFQ. Second, Allied argues that that phrase was added 

in response to Allied’s comments on the draft RFQ. These 

arguments are unpersuasive. 

The relevant provision of the Draft RFQ read: 

The offeror shall include a copy of any 

Master Subscription Agreement (MSA), 

Service Level Agreement (SLA) or any 

other documentation that the offeror will 

request the Government to sign in order to 

receive the offeror’s services. The offeror 

shall highlight any provisions that conflict 

with the Terms and Conditions outlined in 

Document B. Conflicting provisions will 

be considered as exceptions to the Terms 

and Conditions of the RFQ. 

In response, Allied stated: 

The draft RFQ requires offerors to highlight any provisions in an MSA or SLA 

that conflict with the Terms and Conditions in Document B, but states that such 

conflicting provisions will be considered 

exceptions to the Terms and Conditions in 

the RFQ. This language does not allow for 

consideration of alternative terms that 

meet the agency’s needs and suggest that 

an offeror runs the risk of a proposal being 

found nonresponsive if any terms in an offeror’s standard MSA or SLA are highlighted as directed. 

The DOJ then added the following: 

These documents will be reviewed by the 

Government. Any Terms and Conditions 

that are considered unacceptable by the 
ALLIED TECHNOLOGY GROUP v US 15

Government and cannot be resolved may 

result in the Offeror being removed from 

consideration. 

Allied argues that the only reasonable reading of the 

amendment is that DOJ wanted to prevent offerors from 

being found nonresponsive, and so, required discussions. 

This court disagrees. 

The RFQ unambiguously gives the Contracting Officer the discretion over whether to engage in discussions, 

as seen from the emphasized provisions above. Under 

Allied’s reading, such discretion is eliminated by the 

offeror’s initiative to take exceptions or propose additional 

terms that the government would find unacceptable. In 

other words, Allied would allow the Contracting Officer 

discretion to engage in discussions only when the offer 

exactly conformed to the RFQ, a situation which would be 

unlikely to be “unacceptable [to] the Government.” However, the “cannot be resolved” provision is activated only 

when the additional terms are considered unacceptable by 

the government. Thus, Allied’s interpretation fails to give 

meaning to the provisions above, reserving to the Contracting Officer the discretion to engage in discussions, 

and is therefore an improper reading of the RFQ. See, 

e.g., Burnside-Ott Aviation Training Ctr. v. Dalton, 107 

F.3d 854, 860 (Fed. Cir. 1997) (“A contract must be interpreted as a whole in a manner that gives reasonable 

meaning to all its parts and avoids conflicts in, or surplusage of, its provision.”). 

The DOJ did not remove the objected to provisions; 

the final RFQ, like the draft, required offerors to highlight 

any provisions in an MSA or SLA that conflicted with the 

terms and conditions of the RFQ, and categorized such 

conflicting provisions as exceptions. Allied, through its 

comments, has already acknowledged that these provisions may reasonably be read to allow disqualification 
16 ALLIED TECHNOLOGY GROUP v. US

where “alternative terms” are proposed in the offer. 

There is nothing in the added language that necessarily 

changes the effect of those provisions. The added language does not mention discussions, nor define what is 

required before the government may properly determine 

that terms in the offer are unacceptable. Instead, the 

DOJ answered Allied’s objection, warning offerors that a 

bid proposing alternative terms may well result in its 

removal from consideration. 

In light of this, a reasonable reading of the “cannot be 

resolved” phrase may be to require discussions where 

additional terms are proposed, but maintain as exceptions 

(and thus allow disqualification) conflicting terms between the RFQ and the submitted additional documents. 

This interpretation is consistent with the rest of the RFQ, 

which requires offerors to “submit their most advantageous quotes,” and their “best offer from a technical and 

price standpoint” and retains the Contracting Officer’s 

discretion over whether to engage in discussions. We 

need not go so far as to definitively opine on the meaning 

of that phrase; it is enough to note that it does not require 

the Contracting Officer to engage in discussions before 

disqualifying an offer from consideration. 

On a more practical level, the RFQ explicitly states 

that offerors should submit “complete and acceptable 

quote[s],” i.e. those which “accept[] each of the requirements, provisions, terms and conditions, and clauses 

stated in all sections of this RFQ.” It makes little sense to 

reward contractors who choose to submit proposals that 

fail to conform to the RFQ by requiring the government to 

engage in discussions with them. 

2. 

Because discussions were not required by the RFQ 

prior to disqualification on the basis of unacceptable 
ALLIED TECHNOLOGY GROUP v US 17

exceptions, the only remaining question is whether the 

Contracting Officer acted rationally in disqualifying 

Allied on the basis of its exceptions. Allied argues that 

two of its six exceptions were not “true” exceptions because Allied told the DOJ during clarification that it 

would agree to payment in arrears for a 30 percent bump 

in the price. Allied then argues that the Contracting 

Officer disqualified Allied on the cumulative basis of all 

six exceptions, and that a determination that any of the 

six exceptions are not “true” exceptions requires a remand, on the basis of the restriction in S.E.C. v. Chenery 

Corp., 332 U.S. 194 (1947) that an appeals court must 

make its judgment “solely by the grounds invoked by the 

agency[, and] if those grounds are inadequate or improper, the court is powerless to affirm the administrative 

action by substituting what it considers to be a more 

adequate or proper basis.” Id. at 196. 

Allied’s argument rings hollow for three reasons. 

First, Allied admits that all of its exceptions stem from an 

insistence that its MSA take precedence over the RFQ. J. 

App’x at 900 (“The remainder of the exceptions outlined 

below flows [sic] from this change.”). Allied admits that 

all six exceptions were “material.” Br. of Allied at 26. 

Even if we agreed with Allied that two of its exceptions 

were not “true” exceptions, affirming on the basis of the 

other four exceptions would not constitute a new ground 

for affirmance. It would be an affirmance of Allied’s 

disqualification on the same ground that the Contracting 

Officer disqualified Allied: because it took a material 

exception in requiring the precedence of the MSA over the 

RFQ, that the Contracting Officer considered “unacceptable from a business standpoint.” Second, the Contracting Officer did not, as Allied contends, make a finding of 

unacceptability only on the aggregate of the six exceptions. The Contracting Officer’s opinion states: 
18 ALLIED TECHNOLOGY GROUP v. US

It is the opinion of the Contracting Officer 

that these exceptions are a refusal by Allied/Avue to accept material requirements, 

provisions, terms and conditions, and 

clauses of the RFQ, and result in Allied/Avue’s quote being unacceptable from 

a business standpoint. 

The Contracting Officer’s reference to “these exceptions” 

is most naturally read as referring to each exception. By 

analogy, were this court to say, “we affirm the decision of 

the Claims Court for three reasons,” that sentence alone 

does not necessarily indicate that the affirmance is based 

on the aggregate of the three reasons. Finally, as this 

court has stated, “a proposal that fails to conform to the 

material terms and conditions of the solicitation should be 

considered unacceptable and a contract award based on 

such an unacceptable proposal violates the procurement 

statutes and regulations.” E.W. Bliss Co. v. United States, 

77 F.3d 445, 448 (Fed. Cir. 1996). As discussed above, 

this is explicitly laid out in the RFQ, which requires that 

“[e]ach Offeror shall submit a complete and acceptable 

quote in accordance with the instructions contained 

herein. Such a quote . . . accepts each of a requirements, 

provisions, terms and conditions, and clauses stated in all 

sections of this RFQ.” There is thus no “substantial doubt 

whether the administrative agency would have made the 

same ultimate finding with the erroneous findings [by 

assumption] or inferences removed from the picture.” See 

Branff Airways, Inc. v. CAB, 379 F.2d 453, 466 (D.C. Cir. 

1967). 

Because of our holding that the RFQ did not require 

discussions prior to disqualifying Allied, we need not 

determine whether the failure to conduct such discussions 

was prejudicial to Allied. For each of the reasons discussed above, this court affirms the Contracting Officer’s 

decision to disqualify Allied. 
ALLIED TECHNOLOGY GROUP v US 19

C. The Acceptability of Monster’s Proposal 

Allied next argues that the award to Monster lacked a 

rational basis because Monster’s alleged exceptions to the 

RFQ necessarily required its disqualification by the 

Contracting Officer. 

First, Allied argues that the Contracting Officer may 

not award the contract to an offeror who fails to meet all 

the requirements of the RFQ, and that Monster did not 

meet the requirements of Section 508 of the Rehabilitation Act, providing for accessibility to the system for 

disabled individuals. Next, Allied also argues that Monster failed to meet RFQ technical requirement 107 that 

the offeror must use “unique employee identifiers in lieu 

of social security numbers or other personally identifiable 

information.”

1. 

Allied attempts to frame the Section 508 issue as 

whether the Contracting Officer could have waived the 

requirement of § 508 compliance, and cites numerous 

statutes, regulations, and the RFQ itself for the proposition that § 508 compliance is mandatory. See 29 U.S.C. § 

794d(a)(1)(A); 41 U.S.C. § 253b(a); 48 C.F.R. § 39.201; 36 

C.F.R. § 1194.2(a); J. App’x at 396 (technical requirement 

number 72 requires compliance with Section 508). This 

court agrees with Allied that compliance with Section 508 

is mandatory, may not be waived by the Contracting 

Officer, and that if the Contracting Officer had made an 

award to a non-complaint offeror, that decision would be 

subject to reversal. 

However, Allied improperly frames the issue. Monster explicitly certified that it was compliant with Section 

508, both in the listing of requirements, and by submitting a signed “Section 508 Compliance Certification,” 

which stated, “[t]he quote for products or services in 

response to this Request for Quotation [x] IS [ ] IS NOT in 
20 ALLIED TECHNOLOGY GROUP v. US

compliance with the Electronic and Information Technology Accessibility Standards (36 CFR 1194), specified 

below, as a minimum.” The certification also included the 

following note after the signature block: “See [Monster’s] 

Exceptions in the previous section.” 

Where an offeror has certified that it meets the technical requirements of a proposal, the Contracting Officer 

is entitled to rely on such certification in determining 

whether to accept a bid, and the offeror’s potential failure 

to comply with the proposal requirements is ordinarily “a 

matter of contract administration,” which does not go to 

the propriety of accepting the bid. See Centech, 554 F.3d 

at 1039 (citing with approval In re Orincon Corp., B276704, 1997 WL 402081 (G.A.O. July 18, 1997)) (“[A]s a 

general matter, an agency’s judgment as to whether a 

small business offeror will comply with the subcontracting 

limitation is a matter of responsibility, and the contractor’s actual compliance with the provision is a matter of 

contract administration.”). “However, where a proposal, 

on its face, should lead an agency to the conclusion that 

an offeror could not and would not comply with the [applicable requirement], we have considered this to be a matter of the proposal’s technical acceptability,” which does

affect the propriety of accepting the offer. Id. (emphasis 

added); see also In re Spectrum Sys., Inc., B-401130, 2009 

WL 1325352, at *2 (G.A.O. May 13, 2009) (“[A]n agency 

may accept a quotation’s representation that indicates 

compliance with the solicitation requirements, where 

there is no significant countervailing evidence reasonably 

known to the agency evaluators that should create doubt 

whether the offeror will or can comply with the requirement.”).1

 1 Though GAO opinions are not binding on this 

court, Congress has “empowered [the Comptroller General] to determine whether the solicitation, proposed 

award, or award complies with statute and regulation,” 
ALLIED TECHNOLOGY GROUP v US 21

The proper framing of the acceptability of Monster’s 

proposal is, therefore, whether the “generally compliant 

with exceptions” language in Monster’s proposal constitutes “significant countervailing evidence reasonably 

known to the agency evaluators that should create doubt 

whether the offeror will or can comply with the requirement.” Spectrum, 2009 WL 1325352, at *2. 

This court, consistent with the Claims Court, determines that the Contracting Officer did not lack a rational 

basis to accept the proposal because the exceptions language does not constitute such countervailing evidence for 

three reasons. 

First, the statement of exception is consistent with 

Monster’s two certifications that its offer would comply 

with Section 508. Compliance with Section 508 is not an 

all-or-nothing attribute of a product, requiring perfect 

compliance or disqualification, as evidenced by the flexible statutory requirement that “the agency . . . shall 

ensure that the electronic and information technology 

allows . . . individuals with disabilities who are Federal 

employees to have access to and use of information and 

data that is comparable to the access to and use of the 

information and data by Federal employees who are not 

individuals with disabilities.” 29 U.S.C. § 794(d)(a)(1)(A). 

This flexibility is reflected in the implementing regulations. See 36 C.F.R. § 1194.1 (requiring “comparable” 

access); 36 C.F.R. § 1194.5 (allowing alternative technologies that “result in substantially equivalent or greater 

access to and use of a product for people with disabilities”). 

 

Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. 

Cir. 1989) (citing 31 U.S.C. § 3554(b)(1)), and this court 

may draw on GAO’s opinions for its application of this 

expertise. 
22 ALLIED TECHNOLOGY GROUP v. US

A reasonable reading of the “generally compliant 

with minor exceptions” language in the context of the 

offer as a whole is that Monster certifies that whatever 

“minor” exceptions it takes, it nevertheless considers its 

offer to meet the flexible requirements of Section 508. 

This reading is supported by the note at the end of Monster’s Section 508 Compliance Certification, because, in 

spite of the referenced exceptions in Part 5, Monster 

nevertheless certified its compliance with Section 508. It 

was not irrational for the Contracting Officer to credit 

Monster’s representation to determine that Monster met 

all the requirements of the RFQ. Indeed, as discussed 

above, the contractor must credit Monster’s certification 

unless there is “significant countervailing evidence.” 

Because nothing in the statutes, regulations, or the RFQ 

requires that an offer must be considered “non-compliant” 

simply because it is not “perfectly compliant,” the phrase 

“generally compliant with minor exceptions” does not 

constitute significant countervailing evidence that should 

make the agency doubt the offeror’s compliance. 

Allied argues, and the dissent agrees, that 36 C.F.R. § 

1194.2(a) requires a proposal to be perfectly and unequivocally compliant with Section 508 to be acceptable 

because it requires that “products covered by this part 

shall comply with all applicable provisions of this part.” 

(emphasis added)). This argument presumes that Monster’s “minor exceptions” indicate that Monster’s service 

would fail to satisfy some provisions of Section 508, but, 

as discussed immediately above, Monster may satisfy 

Section 508 even if it considers itself to have minor exceptions because of the flexibility inherent in the statute. 

Second, Monster’s statement is not the kind of “significant countervailing evidence” that this court and the 

GAO have found to require disqualification in light of 

satisfactory certifications of compliance. For example, in 

Centech, 554 F.3d at 1039, this court determined that 

GAO’s recommendation to the Air Force not to accept 
ALLIED TECHNOLOGY GROUP v US 23

Centech’s offer was rational, where a statute required 

that Centech perform 50 percent of the work itself, and 

Centech proposed to only perform 43.2 percent (and 

subcontract the rest). Likewise in In re MMI-Federal 

Marketing Service Corp., B-297537, 2006 WL 391289 

(GAO Feb. 8, 2006), a case cited by Allied, the GAO determined that the agency could not accept without verification the winning bidder’s self-certification of compliance 

with the “Berry Amendment”—requiring that certain 

products be purchased and treated domestically—where 

the winning bidder’s initial bid called for treatment at a 

plant in China as the only place in the world where such 

treatment was performed, and the self-certification was 

made as part of a modified manufacturing plan. Id. at *7. 

(“[T]he agency’s evaluation of Iguana’s quotation was 

unreasonable. Because Iguana’s quotation as originally 

submitted disclosed a manufacturing process in China 

that violated the Berry Amendment requirements, and 

because Iguana advised the agency that domestic facilities capable of performing the EXPEL impregnation 

process were not then available, the agency was required 

to verify, prior to award, that Iguana’s intended manufacturing process would comply with the Berry Amendment.”). 

This case is easily distinguishable. Monster twice unambiguously certified compliance with Section 508, and 

the only allegedly contrary evidence to its compliance, a 

statement that it had “minor exceptions,” was within the 

context of a statement that it was “generally compliant.” 

This is not the kind of evidence that shows noncompliance “on its face.” See Centech, 554 F.3d at 1039. 

Third, the independent audit results reflected in Monster’s “Exceptions” section evaluated Monster’s service at 

the time of Monster’s bid. The RFQ required that “High” 

priority components, like compliance with Section 508, be 

“available upon completion of the transition period, which 

may be sixty (60) or may be ninety (90) days if the Gov-
24 ALLIED TECHNOLOGY GROUP v. US

ernment chooses to allow a 30-day extension.” Thus, even 

assuming that Monster’s service was not sufficiently 

compliant with Section 508 at the time of Monster’s bid, 

the Contracting Officer had no basis on which to question 

Monster’s certification that it would comply with Section 

508 at the end of the transition period. 

Finally, the identification of the “minor exceptions” 

occurred through Monster’s voluntary decision to obtain 

an independent audit to ensure compliance with Section 

508. Even if Monster was, in fact, unable to comply with 

Section 508, Allied would have had no basis to question 

Monster’s compliance without the benefit of the auditor’s 

report, and the issue of compliance would clearly be one of 

contract administration. Instead, Monster chose to engage the auditor to receive an above-and-beyond determination of its precise level of compliance, which resulted in 

a conclusion of general compliance with “minor exceptions.” Monster should not be penalized for its admirable 

attempt at greater precision. 

Allied makes two further arguments, which we briefly 

address here. First, according to Allied, because the 

Contracting Officer did not find that Monster’s exceptions 

were “minor,” neither this court nor the Claims Court 

could so find without again running afoul of the rule in 

Chenery, 332 U.S. at 196 that “[w]e may not supply a 

reasoned basis for the agency’s action that the agency 

itself has not given.” Second, Allied argues that the 

Contracting Officer overlooked a significant issue by 

failing to recognize Monster’s exceptions by stating that 

“Monster took no exceptions,” and that “Monster agreed to 

the terms and conditions laid out in the solicitation.” We 

are not here making a finding that the Contracting Officer did not. Indeed, the Contracting Officer specifically 

said that “Monster agreed to the terms and conditions 

laid out in the solicitation.” This is consistent with the 

record, as discussed above, which shows Monster’s certification of its compliance with Section 508. As also dis-
ALLIED TECHNOLOGY GROUP v US 25

cussed above, Monster’s statement that its exceptions 

were “minor” was the only statement in the record regarding the significance or extent of the exceptions, and the 

self-serving nature of that statement is no different than 

Monster’s or Allied’s certifications of compliance with the 

114 technical requirements in the RFQ. Far from being 

the basis of our decision, that Monster indicated that its 

exceptions were minor is merely support for the Contracting Officer’s determination that Monster did not, in fact, 

take exception. We agree that the Contracting Officer 

should have discussed Monster’s statement of general 

compliance with minor exceptions. However, the Contracting Officer had a rational basis for considering Monster’s proposal. 

2. 

Allied also argues that Monster failed to meet technical requirement 107, which required that “[t]he system 

shall use unique employee identifiers in lieu of social 

security numbers or other personally identifiable information.” Allied’s support for this is that Monster’s service 

uses USAJOBS (which uses Social Security numbers) “for 

application processing.” 

Allied’s argument is meritless. First, Monster has 

certified its compliance with requirement 107, and for the 

reasons discussed above in connection with Section 508 

compliance, the Contracting Officer is entitled to rely on 

this certification. Second, and more fundamentally, as 

stated by the GAO and the Claims Court, this requirement does not prohibit the service from collecting Social 

Security numbers, it only prohibits the use of Social 

Security numbers as the “unique employee identifiers.” 

Were the system to prohibit the collection of Social Security numbers or other personally identifiable information, 

the system would effectively be useless because the government could not then connect an application to fill a 

vacancy to the user. Allied has not asserted any other 

violation of requirement 107 except the collection of Social 
26 ALLIED TECHNOLOGY GROUP v. US

Security numbers. The Contracting Officer thus had a 

rational basis to accept Monster’s certification of compliance with requirement 107. 

Because we hold that Allied was properly disqualified, 

and Monster properly considered, we need not address 

Allied’s contentions that the evaluation was fundamentally flawed and biased towards Monster because it cannot be seriously contended that it was irrational to accept 

the only acceptable bid. 

CONCLUSION

For the foregoing reasons, this court affirms the 

Claims Court’s judgment on the administrative record, 

affirming the government’s award of the contract to 

Monster. 

AFFIRMED
United States Court of Appeals 

for the Federal Circuit 

__________________________ 

ALLIED TECHNOLOGY GROUP, INC., 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee, 

AND

MONSTER GOVERNMENT SOLUTIONS, LLC, 

Defendant-Appellee. 

__________________________ 

2010-5131 

__________________________ 

Appeal from the United States Court of Federal 

Claims in Case No. 10-CV-120, Judge Thomas C. 

Wheeler. 

__________________________ 

BRYSON, Circuit Judge, dissenting. 

I respectfully dissent based on my disagreement with 

the portion of the court’s opinion that addresses Monster’s 

compliance with section 508 of the Rehabilitation Act, 29 

U.S.C. § 794d. 

Section 508 requires agencies, when procuring electronic and information technology, to consider the needs 
ALLIED TECHNOLOGY GROUP v. US 2

of individuals with disabilities. Specifically, agencies 

must provide disabled individuals “access to and use of 

information and data that is comparable” to the access 

and use provided to individuals without disabilities. 29 

U.S.C. § 794d(a)(1)(A). Such access must be provided 

unless doing so would impose an “undue burden” on the 

agency. If an agency determines that providing comparable access would create an undue burden, it can provide 

an alternative means of access to information for individuals with disabilities. Id. § 794d(a)(1)(B). 

Congress delegated rulemaking authority under section 508 to the Architectural and Transportation Barriers 

Compliance Board, 29 U.S.C. § 794d(a)(2), which promulgated comprehensive regulations known as the Electronic 

and Information Technology Accessibility Standards, 36 

C.F.R. Part 1194. Those standards prescribe specific 

design criteria for software and websites, requiring keyboard accessibility, id. § 1194.21(a), text equivalents for 

non-text elements, id. § 1194.22(a), and accessibility of 

forms, id. §§ 1194.21(l), 1194.22(n). In addition, section 

1194.31 of the regulations provides functional performance criteria, including that “[a]t least one mode of operation and information retrieval that does not require user 

vision shall be provided, or support for assistive technology used by people who are blind or visually impaired 

shall be provided.” Id. § 1194.31. 

Although the majority characterizes the comparable 

access requirement of section 508 as “flexible,” the regulations, to which we owe deference under Chevron U.S.A. 

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 

837 (1984), require specific modes of compliance, which 

were not met in Monster’s proposal or in the contracting 

officer’s response to that proposal. The majority is correct 

that the prescribed modes of compliance need not be 
3 ALLIED TECHNOLOGY GROUP v. US

employed if an alternative technology “result[s] in substantially equivalent or greater access to and use of a 

product for people with disabilities.” 36 C.F.R. § 1194.5. 

However, nothing in the record indicates that Monster’s 

product, Employer 5.0, results in “substantially equivalent or greater access” than a product that is fully compliant with section 508, such as Allied’s product. 

The main source of flexibility in the regulatory 

scheme is found in the “undue burden” exception. Section 

1194.2(b) of the regulations mandates that “[i]f products 

are commercially available that meet some but not all of 

the standards, the agency must procure the product that 

best meets the standards.” 36 C.F.R. § 1194.2(b). Despite 

that requirement, an agency can procure a less-compliant 

product if procuring the most-compliant product would 

impose an “undue burden,” id. § 1194.2(a)(2), i.e., would 

impose “significant difficulty or expense,” id. § 1194.4. In 

order to take advantage of the “undue burden” exception, 

the agency must “explain why, and to what extent,” 

compliance would create an undue burden. Id.

§ 1194.2(a)(2). 

In this case, the contracting officer made no attempt 

to explain why compliance with section 508 would create 

an undue burden. In fact, the contracting officer did not 

even recognize that Monster took exceptions to the requirement of compliance with section 508. Before discussing Allied’s exceptions to contract terms, the contracting 

officer flatly stated “Monster took no exceptions.” He 

made that statement even though a portion of Monster’s 

proposal was clearly labeled “Part 5. Exceptions” and 

even though that portion of the proposal clearly indicated 

that Monster’s system, Employer 5.0, was not fully compliant with section 508.
ALLIED TECHNOLOGY GROUP v. US 4

The majority minimizes the importance of that part of 

Monster’s proposal by noting that Monster separately 

certified that its proposal was compliant with section 508. 

Although Monster indicated with a checkbox entry that 

its proposal complied with the Accessibility Standards, 

the compliance certification contains a note that reads 

“See [Monster’s] exceptions in the previous section,” 

referring to Part 5. That part, in turn, states, “The following represents [Monster’s] exceptions to the Section 

508 compliance requirement.” Two exceptions follow. 

The first states, “Employer 5.0 is generally compliant 

with exceptions to the relevant Section 508 requirements.” That exception is delineated with a citation to 

the design requirements in section 1194.22 and the functional performance criteria in section 1194.31. The second exception recognizes the deficiencies in Monster’s 

submission, noting that “Employer 5.0 has minor compliance exceptions with the accessibility of forms, text 

equivalents for non-text elements, and keyboard accessibility.” 

Those exceptions involve features that are important 

to making software and websites accessible to individuals 

with disabilities. Individuals with visual disabilities 

access websites with screen readers or Braille displays, 

devices that convert visual text to auditory or tactile 

information. Without text equivalents for non-text elements, a blind person may be unable to use a website, 

even if the website contains only what Monster characterizes as “minor exceptions.” For example, if an otherwise 

compliant website provides a job application form, but the 

“Submit” button is an image file lacking a text equivalent, 

a blind person can fill out the entire form yet be unable to 

submit it because a screen-reading program cannot pronounce the “Submit” button due to the lack of a meaningful text equivalent. Similarly, without keyboard 
5 ALLIED TECHNOLOGY GROUP v. US

accessibility, a blind person will be unable to use software 

or websites that require a mouse. 

Although the majority accepts Monster’s assertion 

that its exceptions were “minor,” that characterization 

has no legal effect, because a product that is “generally 

compliant with exceptions” is still non-compliant under 

the regulations. See 36 C.F.R. § 1194.2(a) (requiring 

products to “comply with all applicable provisions” of the 

Accessibility Standards). Regardless of how Monster 

chose to describe the degree of its deviation from the 

Accessibility Standards, it is clear that Employer 5.0 does 

not fully comply with those Standards. 

Because Monster’s product was not fully compliant 

with the applicable section 508 requirements and because 

a fully compliant product (such as Allied’s product) was 

“available in the commercial marketplace,” id. § 1194.2(b), 

a straightforward application of the regulations would 

require that the contracting officer not award the contract 

to Monster without making further findings. In particular, an award to Monster could be justified if the contracting officer made an “undue burden” determination and 

provided the required explanation for that determination 

by explaining that selecting a more compliant product 

would impose “significant difficulty or expense.” Id. §§ 

1194.2(a)(2), 1194.4. Yet despite Monster’s clear statement that it was taking exceptions to the section 508 

compliance requirement, the contracting officer did not 

acknowledge that Monster’s proposal was not fully compliant with the requirements of section 508. For that 

reason, the contracting officer did not conduct the requisite analysis of the “significant difficulty or expense” that 

would be imposed by selecting a fully compliant product, 

nor did the contracting officer provide the requisite explanation of why and to what extent insisting on a fully 
ALLIED TECHNOLOGY GROUP v. US 6

compliant product would impose an undue burden on the 

agency. 

To remedy the regulatory violation, I would remand 

this case to give the agency an opportunity to conduct an 

“undue burden” analysis and, if it found the “undue 

burden” standard satisfied, to explain why, and to what 

extent, compliance would impose an undue burden on the 

agency as that term is defined in the Accessibility Standards. That determination would, of course, be subject to 

further review. See, e.g., Lockheed Missiles & Space Co. 

v. Bentsen, 4 F.3d 955, 959-60 (Fed. Cir. 1993) (evaluating 

a price/technical tradeoff analysis developed on remand 

from a decision granting bid protests). Because that 

mandatory process was not followed in this case, I would 

not uphold the award to Monster on the present record.