1 

In the United States Court of Federal Claims

No. 17-1849C 

Filed Under Seal: May 29, 2018 

Reissued: June 4, 20181

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

 * 

OBXTEK, INC., * 

 * 

 Plaintiff, * Denial of Post-Award Bid Protest, 

 * Blue & Gold Fleet, L.P. v. United States, 

 v. * 492 F.3d 1308 (Fed. Cir. 2007); 28 U.S.C. § 

 * 1491(b)(4);5 U.S.C. § 706(2)(A); Denial of 

THE UNITED STATES, * Permanent Injunction 

 * 

 Defendant, * 

and * 

 * 

SALIENT CRGT, INC. * 

 * 

 Defendant-Intervenor. * 

 * 

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

Michelle E. Litteken, PilieroMazza PLLC, Washington, D.C., for Plaintiff; Of Counsel, 

Isaias Alba, IV, Kathryn M. Kelley, Timothy F. Valley, PilieroMazza PLLC, Washington, D.C., 

Michael D. Austin, Trial Attorney, Chad A. Readler, Acting Assistant Attorney General, 

Robert E Kirschman, Jr., Director, Douglas K. Mickle, Assistant Director, United States 

Department of Justice, Civil Division, Commercial Litigation Branch, Washington, D.C., for 

Defendant; Of Counsel, Charles McCarthy, General Services Administration.

ORDER AND OPINION

DAMICH, Senior Judge.

On November 29, 2017, Plaintiff OBXtek, Inc. (“OBXtek”) filed this post-award bid 

protest challenging the decision of the General Services Administration (“GSA” or “Agency”) to 

deduct 1600 points from OBXtek’s self-score in an award of contracts in connection with the 

Alliant 2 government-wide acquisition contract (“GWAC”) under Request for Proposals No. 

 1 The parties were directed to submit any redactions; they agreed that no redactions were 

necessary. 
2 

QTA0016JCA003 (“The RFP” or “Solicitation”).2 The GWAC is a Multiple Award, Indefinite 

Delivery, Indefinite Quantity (IDIQ) contract to provide information technology (“IT”) services 

to a wide variety of federal agencies. In its protest, OBXtek alleges that (1) GSA wrongfully 

deducted 1000 points from its self-score because it did not provide a verification form under the 

Project Service Code Group relevant experience and (2) GSA wrongfully deducted 600 points 

from its self-score because there was no requirement to submit an interim report for Leading 

Edge Technology projects with less than one year of project performance. But for GSA’s errors

in the evaluation, OBXtek contends it would have been selected for award. After receiving the 

Administrative Record, OBXtek filed an Amended Complaint on February 2, 2018, adding its 

allegation that GSA conducted unequal discussions. For these reasons, OBXtek argues that the 

award decision was arbitrary, capricious, and contrary to law, and requests this Court to enter a 

permanent injunction. 

A protective order was entered on December 6, 2017, and on the same date, the Court 

adopted the litigation schedule as provided by the parties. On January 19, 2018, the 

Administrative Record was timely filed pursuant to the schedule.

On January 31, 2018, Salient CRGT, Inc., filed a motion to intervene which was 

subsequently granted on February 1, 2018.3

OBXtek filed its motion for judgment on the administrative record on February 9, 2018, 

in compliance with the parties agreed to scheduling order (“Pl. Mot.”). On March 5, 2018, 

defendant filed its response and cross-motion for judgment on the administrative record (“Def. 

Resp.”). On March 16, 2018 and March 30, 2018, the parties timely filed their responses and 

replies. 

After careful consideration and for the reasons set forth below the Court DENIES

OBXtek’s motion for judgment on the administrative record and GRANTS defendant’s cross 

motion for judgment on the administrative record. 

I. Facts

A. The Solicitation

 2

 Five other related bid protests were also filed this in court and assigned to the 

undersigned. See Centech Group, Inc., v. United States, Case No. 17-2031C; Octo Consulting 

Group, Inc., v. United States, Case No. 17-2056C; Capgemini Gov’t. Solutions LLC v. United 

States, Case No. 18-3C; Harris IT Services Corp. v. United States, Case No. 18-24C; and 

Dynetics, Inc., v. United States, Case No. 18-481C. Two of them have since been voluntarily 

withdrawn. See Harris IT Services Corp. v. United States, Case No. 18-24C at ECF No. 17; 

Capgemini Gov’t. Solutions LLC v. United States, Case No. 18-3C at ECF No. 47. 

 3 Defendant-Intervenor did not participate in the briefing. 
3 

GSA first published notice of its intent to procure under the RFP in FedBizOps in 

January 2014. AR at 1. GSA made its first draft RFP public in March 2015, AR at 412, and had 

received more than 900 comments regarding draft RFPs by December 2015. AR at 1891. 

On June 24, 2016, GSA issued the RFP. AR at 1887. The RFP provided for a 5-year 

base period, one 5-year option period, and a total ceiling value of $50 billion for all task orders. 

AR at 1386, 1334. The RFP further provided that GSA would issue multiple awards to the top 

sixty highest-rated offerors on a best-value bases to “the highest technically rated offerors with a 

fair and reasonable price.” AR at 1581-82. Offerors were to self-score their proposals in the 

following categories: relevant experience; past performance; systems, certifications, and 

clearance; and organizational risk assessment. AR at 1517-80. GSA would then verify the 

scoring during proposal evaluation. AR at 1582. Based on the offeror’s answers, the scoring 

worksheet auto-calculated its score out of a possible 83,100 points. AR at 30306. In the event of 

a tied score, “all Offerors precisely tied at the 60th position [would] receive an award.” AR at 

1582. The awardees would then be permitted to bid on a series of fixed-price, cost 

reimbursement, time-and-materials, and labor-hour task orders to provide IT services to various 

federal agencies. AR at 1333. 

Relevant to this protest are the evaluations under Project Service Code (“PSC”) Group 

Projects, Leading Edge Technology (“LET”) Relevant Experience Projects, and the Individual 

Subcontracting Plan (“subcontracting plan”). 

1. PSC Group Relevant Experience 

Offerors could possibly earn a total of 17,000 points for experience under traditional 

information technology projects, known as PSC Group Projects, RFP Section 5.2.2. AR at 2264. 

In order to score these points, offerors were required to submit verification documents under two 

methods, depending on the information available. AR at 1543-44. 

RFP section L.5.2.2.1.1 provided the two methods of verifying relevant experience: (1) a 

Federal Procurement Data System report (“FPDS Report”), combined with the statement of 

work, as verification, or (2) if an FPDS Report was either not available, incomplete, or 

inaccurate, an offeror could submit the J.P-2 form describing the project and signed by the 

project’s contracting officer, corporate officer, or local official, a copy of the contract award 

document and any modifications, a copy of the contract statement of work, and, if applicable, 

documentation of the contract line items. AR at 1543-44. Simply put, an FPDS Report was 

required if possible; if it was not possible, then the J.P-2 form option with the contracting 

officer’s signature was an available option in order to gain the base points for PSC experience. 

In addition to the possible 17,000 PSC project points, an offeror could earn an additional 

500 points, per project, if an offeror could establish that the contract was of a particular size or 

complexity. AR 1673-74. This required that an offeror establish that the contract was either a

multiple-agency award or a cost-reimbursement-type contract for each separate federal customer. 

AR at 1548-49. To verify the distinct sources of federal funding, RFP Sections L.5.2.2.2, 

L.5.2.2.3, and L.5.2.2.4 explicitly required the submission of an FPDS Report to award these 

points, unlike the base points for the underlying PSC experience. AR at 1547-48 (emphasis 
4 

added). In other words, offerors had the option of the two methods of verifying relevant 

experience to earn base points, but in order to gain additional points the FPDS Report was 

required. 

Specific to this protest is RFP Section L.5.2.2.3, “PSC Group Relevant Experience – 

Demonstrating Experience with Multiple Federal Government Customers,” which provided in 

pertinent part: 

This additional scoring is only available for relevant experience projects 

performed as a prime contractor to the Federal Government. 

Federal Government Customer is determined by the Funding Agency ID 

identified within the FPDS Report . . . 

Verification must also be provided by attaching the FPDS Report that 

indicates the claimed Funding Agency ID.

AR at 1548. 

Additionally, in a published answer and question session, a prospective bidder asked and 

the contracting officer responded to this provision, “[h]ow can we obtain credit from a unique 

funding source that does not have an FPDS Report or a Funding Agency ID? The Document 

Verification and Scoring Sheet only gives credit for unique Funding Agency IDs.” AR at 1932. 

In its published response the GSA responded, “[t]hat is correct. You must have an FPDS 

specifying the funding agency code. No exceptions.” AR at 1932. 

 

2. LET Relevant Experience Projects

Offerors could also earn points for Leading Edge Technology experience. AR at 2264. 

Under the potential ten types of LETs, each offeror could earn points for three occurrences 

(referred to as projects) for up to 600 points (100 points for the first occurrence, 200 for the 

second, and 300 for the third) under each of the ten categories.

4

 AR at 1675. 

Section L.5.2.3, “Leading Edge Technology Relevant Experience,” provided in pertinent 

part:

4. Each Leading Edge Technology Relevant Experience Project must be 

Ongoing or have been Completed within 5 years from the date proposals are 

due. (Completed is within 5 years from the proposal’s original submission 

date, 29 August 2016; and an Ongoing status can be at the proposal’s original 

 4 The ten categories are: (1) artificial intelligence; (2) autonomic computing; (3) big data; 

(4) biometrics; (5) cloud computing; (6) cyber security; (7) health IT; (8) mobile IT; (9) the 

internet of things; and (10) virtual networking. AR at 1559. 
5 

or the extended submission date). Each project must have at least one year 

of performance unless one of the following situations exist: 

a. The project has an Interim or a Final CPARS/PPIRS.5 

b. The project has a completed Award Fee Determination. 

c. The project had a base period of performance less than one year and

that period of performance is Completed. 

DEFINITION: For purposes of this section L.5.2.3, the words “Ongoing” is 

defined as a Project that has not yet been “Completed” by the proposal’s 

original submission date (29 August 2016), or by the proposal’s extended 

submission date ONLY if the Ongoing project has at least one full-year 

of performance. Otherwise, if less than one-year performance, one of the 

three situations must exist, noted above in L.5.2.3, item #4 . . . 

AR at 1554 (emphasis in the original).

3. Subcontracting Plans

The RFP further required other than small business offerors to submit an Individual 

Subcontracting Plan. AR at 1518. Section M.4.2 set forth the evaluation criteria for the 

subcontracting plan. In relevant part it provided: 

M.4.2 The Offeror’s Individual Subcontracting Plan (Plan) must be 

determined Acceptable 

The Plan is a material requirement of the proposal for an other than small 

business Offerors. 

The Offeror’s Plan must be determined Acceptable in order to be eligible for 

award. The Offeror's Plan will be evaluated on an ACCEPTABLE / 

UNACCEPTABLE basis and a Responsibility Determination factor[.] 

AR at 1585 (emphasis in the original). 

B. Pre-Award and GAO Protests

Eight protests6 were filed before the Government Accountability Office (“GAO”) before 

the deadline for proposals and two were filed with the Agency. AR at 2297-2772. Out of the ten 

protests, two protests challenged the RFP requirement that an offeror submit an FPDS Report in 

order to gain bonus points for work performed. Four others challenged the price evaluation 

scheme. All protests were denied. AR at 2760-61. 

 5 A Contractor Performance Assessment Report System (“CPARS”) report is a 

performance report created by government personnel for a contractor’s performance on a given 

project. https://www.cpars.gov. The Past Performance Information Retrieval System (“PPIRS”) 

is the Federal repository for completed CPARS. https://www.ppirs.gov. 

6

 One protest was voluntarily withdrawn after GSA took corrective action. AR at 2305. 
6 

C. Proposal Submission, Evaluation, and Award 

OBXtek timely filed its proposal in response to the RFP, along with 169 other offerors. 

AR at 30306. The Source Selection Evaluation Team (“SSET”) performed a technical 

evaluation of the 170 offers, selecting the top 61 rated proposed for price evaluation. After the 

proposals were submitted, GSA informed at least five offerors that their subcontracting plans 

were unacceptable or contained deficiencies and requested revisions of the plans. AR at 30410-

56; 30501-25. GSA did not identify a need to conduct clarifications to offerors with respect to 

PSC Groups and LET experiences. AR at 30324. Ultimately, GSA awarded contracts to 61 

offerors, with scores ranging from 83,100 to 73,600. AR at 30306. 

D. OBXtek’s Notification and Debriefing

On November 17, 2017, GSA notified OBXtek that it had not been selected for award. 

AR at 30537. GSA informed OBXtek that it deducted 1,900 points from its self-score of 74,400, 

resulting in a total evaluated score of 72,500. AR at 30544-46. 

GSA awarded OBXtek 17,000 points for PSC Group relevant experience, the maximum 

amount available for this aspect of the evaluation. OBXtek claimed 3,500 additional points in its 

self-score for experience with multiple federal government customers. However, GSA deducted 

a total of 1,000 points stating: 

[i]n accordance with RFP Sec. L.5.2.2.3 PSC Group Relevant Experience - 

Demonstrating Experience with Multiple Federal Government Customers, 

the Federal Government Customer is determined by the Funding Agency ID 

identified within the FPDS Report. In order to gain points in this area, the 

offeror is required to provide an FPDS report. Here, the Offeror failed to 

provide a FPDS report in connection with these two PSCs.

AR at 30538 (emphasis added). 

For its LET experience, OBXtek claimed 3,600 points in its self-score. Here, GSA 

deducted 600 points from OBXtek’s self-score, explaining: 

The SSET evaluated OBXtek Inc., proposal and determined that Leading 

Edge Technology (LET) Relevant Experience Projects 3-3 and 10-3 were

disallowed due to the fact that the projects did not have 1 year period of 

performance and did not meet any of the exceptions . . . 

Accordingly, the evaluation team deducted 300 points for LET 3-3 and 300 

points for LET 10-3 for a total of 600 points. 

AR at 30539 (emphasis added). 

II. Jurisdiction and Standard of Review 
7 

The Court has jurisdiction under the Tucker Act, 28 U.S.C. section 1491(b)(1). The 

Tucker Act, as amended by the Administrative Disputes Resolution Act of 1996, 28 U.S.C. 

section 1491(b)(1), grants this Court exclusive jurisdiction to “render judgment on an action by 

an interested party objecting to a solicitation by a Federal Agency for bids or proposals for a 

proposed contract or to a proposed award or the award of a contract or any alleged violation of 

statute or regulation in connection with a procurement or proposed procurement.” 28 U.S.C. § 

1491(b)(1). Under the Tucker Act, an “interested party” includes an actual or prospective offeror 

whose direct economic interest would be affected by or which has suffered a non-trivial 

competitive injury or prejudice as a result of the alleged error. Sys. Application & Tech., Inc. v. 

United States, 691 F.3d 1374, 1382 (Fed. Cir. 2012). 

In a bid protest, the trial court “review[s] the agency’s decision pursuant to the standards 

set forth in section 706 of Title 5,” the Administrative Procedure Act (“APA”). 28 U.S.C. § 

1491(b)(4); see Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 

2004). Pursuant to the standards set forth in the APA, the trial court determines whether the 

agency’s actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law.” 5 U.S.C. § 706. A procurement decision may be set aside “if either: (1) 

the procurement official’s decision lacked a rational basis; or (2) the procurement procedure 

involved a violation of regulation or procedure.” Impresa Construzioni Geom. Domenico Garufi 

v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001) (citations omitted). Further, a protester 

must demonstrate that there was a substantial chance it would have received the contract award, 

but for the alleged error in the procurement process. Statistica Inc. v. Christopher, 102 F.3d 

1577, 1581 (Fed. Cir. 1996). 

III. Discussion

OBXtek raises three separate bases for this protest. Specifically, OBXtek alleges that: (1) 

GSA wrongfully deducted 1000 points from its self-score under the PSC group, (2) GSA 

wrongfully deducted 600 points under the LET category, and (3) GSA engaged in unequal 

discussions. The Court will take each in sequence.

A. Group Relevant Experience - Demonstrating Experience with 

Multiple Federal Government Customers Under RFP Section 

L.5.2.2.3 PSC: GSA’s Bonus Point Deduction was Reasonable. 

OBXtek alleges that it is protesting the Agency’s evaluation as it was “unreasonable and 

inconsistent with the Solicitation.” Pl. Mot. at 20. OBXtek argues that the Agency unreasonably 

deducted 1,000 multiple-agency bonus points because OBXtek “did not provide FPDS Reports 

for two of its seven projects that it submitted to demonstrate its experience with multiple federal 

customers.” Id.; AR at 30538-39, AR 29880-81. Because OBXtek captured all 17,000 points 

under PSC experience, it argues that it should have been awarded all of its claimed additional 

points – 3,500 – without the 1,000 point deduction for the two projects that did not contain an 

FPDS Report. Pl. Mot. at 21. 

OBXtek relies on section L.5.2.2.1.1 of the RFP which provided that an offeror had two 

choices for project verification – a choice of either (1) filing an FPDS Report (L.5.2.2.1.1(1)), or 
8 

if not available or accurate, by (2) submitting a contracting officer’s signature (L.5.2.2.1.1(2)). 

OBXtek argues that by choosing the alternate method – L.5.2.2.1.1(2) – in lieu of an FPDS 

Report – L.5.2.2.1.1 – it should have been credited with the additional points. In support of this 

argument, OBXtek compares the verification Section of L.5.2.2.3 with L.5.2.2.4. Specifically, 

RFP section L.5.2.2.3 provided in relevant part: 

This additional scoring is only available for relevant experience projects 

performed as a prime contractor to the Federal Government.

Federal Government Customer is determined by the Funding Agency ID 

identified within the FPDS Report. . . 

Verification must also be provided by attaching the FPDS Report that 

indicates the claimed Funding Agency ID.

AR at 1548. 

 

In comparison, section L.5.2.2.4 states: 

Verification must also must be provided by attaching the FPDS-NG Report 

that indicates a cost-reimbursement contract type. The verification method 

mentioned in Section L.5.2.2.1.1(2) shall not apply to this Section L.5.2.2.4. 

An attached FPDS-NG Report verifying the submitted cost-type project 

is required for earing points in this section. 

AR at 1549 (emphasis in the original). Therefore, because section L.5.2.2.3 does not specifically 

include the language, “Section L.5.2.2.1.1(2) shall not apply[,]” OBXtek claims that section

L.5.2.2.1.1(2) verification (not requiring an FPDS Report only a contracting officer’s signature) 

is available to capture the additional points under section L.5.2.2.3. 

Here, unlike the base project points, which provided two options to capture points 

without an FPDS Report, AR at 1544-47, the RFP explicitly required an FPDS Report to capture 

the additional points. See AR at 1548-49 (“Verification must also be provided by attaching the 

FPDS report . . . .”). Furthermore, when asked during proposal preparation how an offeror could 

obtain credit from a unique funding source that does not have an FPDS Report of Funding 

Agency ID, the Agency replied unequivocally that an offeror must provide “an FPDS specifying 

the funding agency code. No exceptions.” AR at 1932. 

Moreover, this RFP provision was subject to a pre-award protest at GAO, with the 

GAO finding that:

 [T]he record supports the agency’s position that assigning points to firms 

that can provide a FPDS report is reasonably related to the agency’s needs . 

. . 
9 

Given that the acquisitions that will take place under the Alliant 2 GWAC 

are acquisitions that will be competed, awarded, and performed under the 

FAR, we find nothing objectionable with an RFP provision that provides an 

evaluation preference to contracts that were performed under the FAR.

AR at 2576, 2580-81. 

Therefore, it is clear that the requirement for an FPDS Report was made explicit on the 

face of the RFP. It is further clear that when asked, the Agency was specific that an FPDS 

Report was required to gain the additional points. And lastly, the GAO pre-award protest 

determined that assigning points to firms that could provide an FPDS Report was reasonably 

related to the Agency’s needs. Thus, when the Agency evaluated OBXtek’s PSC projects for the 

possibility of capturing additional points, the Agency did exactly what it told the offerors it 

would do: that in the absence of an FPDS Report, the Agency would decline to award the 

multiple bonus points. Here, the two projects that were deducted did not have an FPDS Report, 

as required. Therefore, the Agency’s evaluation deducting 1000 points was reasonable and in 

accordance with the Solicitation. 

B. Leading Edge Technology Relevant Experience Under RFP Section 

L.5.2.3: GSA’s Point Deduction was Reasonable. 

GSA deducted 600 points from OBXtek’s self-score because two of its LET project 

submissions (LETs 3-3 and 10-3) failed to meet the RFP’s requirement of at least one-year of 

performance and did not otherwise qualify under the RFP’s stated exceptions to this rule. 

Section L.5.2.3 Leading Edge Technology Relevant Experience provided, in pertinent part: 

4 . . . . Each project must have at least one year of performance unless 

one of the following situations exist:

a. The project has an Interim or a Final CPARS/PPIRS. 

b. The project has a completed Award Fee Determination. 

c. The project had a base period of performance less than one year and 

that period of performance is Completed. 

AR at 1554. 

In its evaluation, GSA noted the dates of the two projects in question—for LET 3-3, the 

period of performance is 01 February 2016 through 31 January 2021, and for LET 10-3, the 

period of performance is 01 April 2016 through 31 March 2021— both outside the “one year” 

rule. GSA then found that these two projects did not meet any of the above exceptions. 

OBXtek concedes that the two projects did not meet the above requirement for one year 

of performance. Pl. Mot. at 24. OBXtek also does not argue with the requirement that the 

projects have an “Interim or Final CPARS/PPIRS.” Rather, OBXtek contends that Section 

L.5.2.3 did not require the submission of verification, that is, of the Interim or Final 

CPARS/PPIRS. In its own words: “nothing in the Solicitation reasonably notified offerors that 
10

submitting CPARS/PPIRS was a requirement in order for projects to qualify for the exception.” 

Id. at 25. Therefore, OBXtek contends that its conclusion that no documentation was needed 

was reasonable and that the deductions were inconsistent with the terms of the RFP and/or the 

result of a latent ambiguity in the RFP. Id. at 26; Pl. Reply at 15-18. 

“A latent ambiguity is a hidden or concealed defect which is not apparent on the face of 

the document, could not be discovered by reasonable and customary care, and is not so patent 

and glaring as to impose an affirmative duty on plaintiff to seek clarification.” Analytical & 

Research Tech., Inc. v. United States, 39 Fed. Cl. 34, 46 (1997). On the other hand, “[a] patent 

ambiguity is present when the contract contains facially inconsistent provisions that would place 

a reasonable contractor on notice and prompt the contractor to rectify the inconsistency by 

inquiring of the appropriate parties.” Stratos Mobile Networks USA, LLC v. United States, 213 

F.3d 1375, 1381 (Fed. Cir. 2000). 

A plaintiff who “has the opportunity to object to the terms of a government solicitation 

containing a patent error and fails to do so prior to the close of the bidding process waives its 

ability to raise the same objection subsequently in a bid protest action in the Court of Federal 

Claims.” Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007). A 

party's failure to do so is a waiver of its ability to raise the same objection in a bid protest action 

in this Court. Id. at 1313. “This doctrine was established to prevent contractors from taking 

advantage of the government, protect other bidders by assuring that all bidders bid on the same 

specifications, and materially aid the administration of government contracts by requiring that 

ambiguities be raised before the contract is bid, thus avoiding costly litigation after the fact.” Id. 

at 1313-14 (citing Cmty. Heating & Plumbing Co. v. Kelso, 987 F.2d 1575, 1580 (Fed. Cir. 

1993)). 

In arguing that the Solicitation contained a latent ambiguity, OBXtek contends that no 

affirmative duty was imposed on it to seek clarification and its interpretation allowed it to meet 

the requirements without submitting the reports. Specifically, OBXtek contends that because 

other sections of the RFP contained explicit verification requirements, and as this section was

silent with regard to verification requirements, OBXtek was not required to submit any verifying 

reports or documents in order to capture the points. Pl. Mot. at 37. This Court, however, 

interprets the inconsistency entirely differently: because the RFP was explicit in other sections 

requiring the submission of forms, i.e. J.P-3 Form, FPDS Report, AR at 1523, 1594. OBXtek 

was placed on notice of the ambiguity in this section which should have prompted it to rectify 

the inconsistency prior to submitting its bid. The inconsistency—explicit verification 

requirements versus no explicit verification requirement—consequently amounts to a patent 

ambiguity. As a patent ambiguity, the challenge was required pre-award. Blue & Gold Fleet, 

492 F.3d 1318. 

Furthermore, regardless of the patent/latent ambiguity argument, OBXtek could not have 

complied with the requirement in any event, as an interim CPARS/PPIRS did not exist at the 

time of proposal submission.7

 

 7 OBXtek argues that even though its proposal did not contain any information which 

might qualify those LETs under an exception, a CPAR/PPIRS exists and should have been 
11

Finally, although section L.5.2.3 did not expressly require submission of verification, it 

did so by clear implication. How could the Agency have verified that OBXtek’s projects fit into 

one of the exceptions without any documentation, unless it did the research itself—a burden that 

the Agency was unlikely to assume? Thus, it is only logical that verification was required and, 

therefore, the deductions were consistent with the RFP. The Agency’s deductions were therefore 

reasonable. 

C. GSA Treated All Equally

“The acid test for deciding whether an agency has engaged in discussions is whether the 

agency has provided an opportunity for quotations or proposals to be revised or modified.” 

Consol. Eng’g Servs., Inc. v. United States, 64 Fed. Cl. 617, 626 (2005) (citations omitted). “If 

the agency decides to award the contract after holding discussions, it must hold discussions with 

all responsible offerors within the competitive range.” Id. (citations omitted).

In this case, it is uncontested that after the proposals were submitted, GSA requested at 

least five offerors to revise their subcontracting plans. The GSA letter requesting additional 

information plainly stated that their “plans were unacceptable.” AR at 30410-56; 30501-25. 

Thus, it is OBXtek’s contention that because the solicitation required that the subcontracting plan 

be rated acceptable for the offeror to be eligible for award, but for the discussions, many of the 

offerors would have been ineligible to receive the award. Pl. Reply at 6; see also AR at 1585 

(“[t]he Offeror’s Plan must be determined Acceptable in order to be eligible for award. The 

Offeror’s Plan will be evaluated on an ACCEPTABLE / UNACCEPTABLE basis and a 

Responsibility Determination factor[.]”) (emphasis in the original). Simply put, OBXtek

alleges that once GSA submitted comments to the various offerors on their subcontracting plans, 

and then permitted these offerors to incorporate those comments into revised subcontracting 

plans, discussions were triggered. Once discussions were trigged, OBXtek claims that it should 

then have been permitted to revise and correct any deficiencies within its proposal. 

In addition, OBXtek argues that the Agency can avoid its obligations under the Federal 

Acquisition Regulation (“FAR”) simply by labeling an evaluation criterion as part of the 

responsibility determination. Pl. Reply at 11. By doing so, OBXtek contends that an agency can 

avoid its obligations under the FAR simply by labeling an evaluation criterion as part of the 

responsibility determination. Id. Moreover, OBXtek argues that the “Defendant has not cited a 

single case in which this Court has held that a subcontracting plan was part of a responsibility 

determination and, therefore, not subject to the regulations governing discussions.” Pl. Reply at 

 

located by GSA. Pl. Reply 17-18. Therefore, according to OBXtek, both projects qualify for 

points under exception (a). However, the Court cannot find any evidence from OBXtek that 

these interim CPARS reports existed at the time of proposal submission. See generally Pl. Mot. 

and Pl. Reply. Instead, defendant responds that the reports, which the government evaluators 

located in the CPARS system during the course of this litigation, are dated some eight months 

after the proposal deadline had passed. The relevant interim CPARS records indicate that they 

were created in May and June of 2017, long after the solicitation closing date. Def. Reply at 9-

10.
12

8. This statement is untrue, see Def. Br. at 12, and as the cases hold that subcontracting plans are 

properly part of a responsibility determination, the Court will begin here. 

In Consolidated Engineering, the plaintiff alleged that the agency failed to conduct equal 

and meaningful discussions when the agency requested that the apparently successful offeror 

revise its subcontracting plan. Consol. Eng’g Servs., 64 Fed. Cl. at 626. Like OBXtek, the 

plaintiff in Consolidated Engineering argued that once the agency submitted comments to an 

offeror on its subcontracting plan and permitted that offeror to incorporate those comments into 

a revised subcontracting plan, discussions were triggered and the plaintiff was entitled to revise 

its proposal and correct any deficiencies therein. Id. at 627. The Court did not agree. Instead, 

quoting the FAR, the Court noted: 

FAR § 19.702(a)(1) provides that a subcontracting plan shall be required 

from the “apparently successful offeror,” and states that said offeror shall be 

ineligible for award “[i]f the apparently successful offeror fails to negotiate a 

subcontracting plan acceptable to the contracting officer within the time limit 

prescribed by the contracting officer. FAR § 19.702(a)(1). Furthermore, 

FAR § 19.705–4 sets forth the additional requirement that “[t]he contracting 

officer must review the subcontracting plan. . . . and provides this instruction: 

In determining the acceptability of a proposed subcontracting plan, the 

contracting officer should take the following actions: . . .(7) Obtain advice 

and recommendations from the SBA procurements center representative (if 

any) and the agency small business specialist. FAR § 19.705–4(d). 

Id. Therefore, relying on the FAR, the Court concluded that an agency’s actions in requesting a 

subcontracting plan and negotiating with a bidder to ensure that the subcontracting plan was 

acceptable “was not only contemplated by the FAR, but required by it.” Id. The Court further 

held that “subcontracting plan[s] relate[] to an offeror’s responsibility, even where the 

solicitation requests the offeror submit the plan with its proposal.” Id. at 627 (internal quotations 

omitted). 

In Dyncorp Int'l LLC v. United States, 76 Fed. Cl. 528 (2007), this Court also held that 

that exchanges between an agency and offerors regarding responsibility determinations, 

including the analysis of the subcontracting plan, do not constitute discussions under FAR 

15.306(d). Id. at 546-547. In this instance, the Court held, “[t]his court has approvingly cited 

GAO cases stating this rule to support a holding that exchanges concerning an element of 

responsibility such as a subcontractor plan do not constitute discussions.” Id. (citing Consol. 

Eng'g Servs., 64 Fed. Cl. 627; Kahn Instruments, Inc., B–277973, 98–1 CPD ¶ 11, 1997 WL 

811931 (Comp. Gen. Dec. 15, 1997); A.B. Dick Co., B–233142, 89–1 CPD ¶ 106). 

Applying the same reasoning, the Court holds that the GSA’s communications regarding 

the subcontracting plans do not amount to discussions because the communications only 

concerned responsibility. Responsibility relates to the offeror’s capability or ability to perform a 

contract. Responsiveness, by contrast, relates directly to the contractor’s ability to provide the 

goods or services being procured. Heli-Jet Corp. v. United States 2 Cl. Ct. 613, 620 (1983). 

Thus, communications based on a responsibility determination in accordance with the FAR, does 
13

not open up discussions for other areas to include those related to responsiveness. Accordingly, 

the Agency acted properly when it did not allow OBXtek to revise its proposal with regard to the 

PSC and LET scores. 

D. Denial of Permanent Injunctive Relief

In order to establish that it is entitled to permanent injunctive relief, the plaintiff must 

establish actual success on the merits. The foregoing analysis reveals that there is no basis upon 

which to grant OBXtek’s motion for judgment on the administrative record. As such, OBXtek

has failed to establish an entitlement to injunctive relief, i.e., it has failed to show actual success 

on the merits. 

E. Conclusion 

For all the foregoing reasons, OBXtek’s motion for judgment on the administrative 

record is DENIED and defendant’s cross motion for judgment on the administrative record is 

GRANTED. The Clerk shall enter judgment accordingly. 

IT IS SO ORDERED.

 s/Edward J. Damich

EDWARD J. DAMICH

 Senior Judge