In the United States Court of Federal Claims 

Bid Protest 

No. 15-354C 

Filed Under Seal: July 21, 2015 

Reissued for Publication: August 10, 2015*

VION CORPORATION, 

 Plaintiff, 

v. 

THE UNITED STATES, 

 Defendant, 

and 

WORLD WIDE TECHNOLOGY, INC. 

 Defendant-Intervenor. 

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Post-Award Bid Protest; Tucker Act; 28 

U.S.C. § 1491(b); RCFC 52.1; Federal 

Acquisition Regulation (FAR); Price 

Realism Analysis; Organizational Conflict 

of Interest; Supplementation of the 

Administrative Record. 

David R. Hazelton, Counsel of Record, Kyle R. Jefcoat, Of Counsel, Anne W. Robinson, 

Of Counsel, Dean W. Baxtresser, Of Counsel, Latham & Watkins, LLP, Washington, D.C., for 

plaintiff. 

Veronica N. Onyema, Trial Attorney, Deborah A. Bynum, Assistant Director, Robert E. 

Kirschman, Jr., Director, Benjamin C. Mizer, Principle Deputy Assistant Attorney General, 

United States Department of Justice, Washington, D.C., Joann W. Melesky, Of Counsel, Daniel 

C. McCintosh, Of Counsel, Defense Information Systems Agency, Scott Air Force Base, Illinois, 

for defendant. 

William M. Weisberg, McLean, Virginia, for defendant-intervenor. 

 

*

 This Memorandum Opinion and Order was originally filed under seal July 21, 2015 (docket 

entry 50), pursuant to the protective order entered in this action on April 9, 2015 (docket entry 

10). The parties were given an opportunity to advise the Court of their views with respect to 

what information, if any, should be redacted under the terms of the protective order. The parties 

filed a joint status report on August 10, 2015 (docket entry 52) stating that they agreed there is 

no need for redactions. Accordingly, the Court is reissuing its Memorandum Opinion and Order 

as originally filed. 
 2 

MEMORANDUM OPINION AND ORDER 

GRIGGSBY, Judge

I. INTRODUCTION 

This post-award bid protest challenges the decision of the Defense Information Systems 

Agency (“DISA”) to award Solicitation No. HC1028-13-R-0015, for information technology 

storage infrastructure services, to World Wide Technology, Inc. (“WWT”). Plaintiff, ViON 

Corporation (“ViON”), challenges the agency’s award decision on four grounds: First, ViON 

alleges that DISA did not appropriately evaluate the technical merits of WWT’s proposal. 

Second, ViON alleges that the agency failed to conduct a price realism analysis of WWT’s 

proposal. Third, ViON alleges that WWT’s proposal improperly took exception to several 

material terms of the solicitation. Lastly, ViON contends that DISA failed to investigate a 

potential organizational conflict of interest involving WWT. 

The matter is before the Court on the parties’ cross-motions for judgment on the 

administrative record, pursuant to Rule 52.1 of the Rules of the United States Court of Federal 

Claims (“RCFC”). For the reasons discussed below, the administrative record shows that the 

agency’s award decision was reasonable and in accordance with the terms of the solicitation and 

applicable law. And so, the Court (1) DENIES plaintiff’s motion for judgment on the 

administrative record; (2) GRANTS defendant’s motion for judgment on the administrative 

record; and (3) GRANTS defendant-intervenor’s motion for judgment on the administrative 

record. Because supplementation of the extensive administrative record with the expert 

declaration proffered by plaintiff is not necessary for meaningful judicial review of this matter, 

the Court also DENIES plaintiff’s motion to supplement the administrative record. 

II. PROCEEDURAL AND FACTUAL BACKGROUND1

A. Factual Background 

The government has filed an extensive administrative record in this case and the relevant 

facts are not in dispute. On December 19, 2014, DISA awarded solicitation No. HC1028-13-R-

 

1

 The facts recited in this Memorandum Opinion and Order are taken from the administrative 

record (“AR at __”); plaintiff’s complaint (Compl. at __”); plaintiff’s motion for judgment on the 

administrative record (“Pl. Mot. at __”); plaintiff’s memorandum in support of its motion for 
 3 

0015, for the Enterprise Storages Services II (“ESS II”) contract, to WWT. AR at 17; 346-87. 

ViON is the incumbent contractor under a predecessor contract, known as the Enterprise Storage 

Services I contract. Compl. at 5. 

In this bid protest action, ViON alleges that DISA failed to properly evaluate WWT’s 

proposal for the ESS II contract and, as a result, the agency’s award decision was arbitrary, 

capricious and not in accordance with law. See generally, Pl. Mem. As relief, ViON requests, 

among other things, that the Court set aside the agency’s award decision; direct DISA to 

reevaluate the proposals submitted by WWT and ViON; and issue a declaratory judgment that 

the agency’s award decision was arbitrary, capricious, and contrary to law. Pl. Mot. at 1-2. 

1. DISA’s Request For Proposals 

On September 19, 2013, DISA issued a request for proposals (“RFP”) for the ESS II 

contract. AR at 69-150. The ESS II contract is a single, fixed-price, indefinitedelivery/indefinite-quantity contract, for four years with two one-year options for renewal. AR 

at 74; 140. 

DISA analyzed several factors in evaluating the proposals that it received in response to 

the RFP. Specifically, the RFP requires that the contract award be based upon a best-value 

tradeoff, considering the following three factors, listed in descending order of importance: 

technical/management; past performance; and cost/price. AR at 141. The technical/management 

factor is comprised of three equally-weighted subfactors: technical solution; service delivery; 

and proof of concept.2

 Id. 

For the technical solution subfactor, the RFP requires that each proposal support 

“heterogeneous data migration” and “3-way replication of data”. AR at 3265-66. For the service 

delivery subfactor, the RFP requires that the agency “evaluate the soundness of the [o]fferor’s 

approach for ensuring the proposed solution meets the functional and performance requirements 

 

judgment on the administrative record (“Pl. Mem. at __”); and defendant’s cross-motion for 

judgment on the administrative record (Def. Mot. at __”). Except where otherwise noted, the 

facts cited herein are undisputed. 

2

 The RFP requires that in evaluating the proposals DISA assign each subfactor a 

“technical/management ratings” of either good, acceptable, marginal or unacceptable and a 

“technical/management risk ratings” of low, moderate, or high. AR at 141-44. 
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[of the RFP].” AR at 143. In addition, the RFP requires that DISA evaluate “[t]he flexibility of 

the [o]fferor’s approach to address overall call order management, new technology, future 

changes in requirements and technology refresh; periodic operational proof of performance 

testing; cost savings over the period of the contract and other features advantageous to meeting 

the Government’s storage service requirements.” Id. 

For the proof of concept subfactor, the RFP requires that “[i]f a Proof of Concept 

Demonstration is required ALL Offerors in competitive range will be required to demonstrate 

their proposed technical/management solution . . . .” Id. In this regard, the RFP provides that: 

The Proof of Concept Demonstration will test all five (5) supported environments 

referenced in Task 3, 6.3.1 of the [performance of work statement]. If a Proof of 

Concept Demonstration is required, a detailed test plan, together with any 

Government provided data required to be used in the demonstration, will be 

provided to each Offeror 14 calendar days prior to the demonstration. 

Id.; see also AR at 3269. 

With respect to price, the RFP also provides that DISA “may reject any proposal that is 

evaluated to be . . . unreasonably high or low in price when compared to the Government 

estimates, such that the proposal is deemed to reflect an inherent lack of competence or failure to 

comprehend the complexity and risks of the program.” AR at 140. The RFP further provides 

that DISA may use “one or more of the techniques in FAR 15.404” to evaluate price. AR at 149. 

DISA received seven competitive proposals in response to the RFP, including proposals 

from WWT and ViON. AR at 308-2329; 18,202. 

2. Evaluation Of WWT’s Proposal 

On November 19, 2013, WWT submitted its initial proposal for the ESS II contract. AR 

at 2047. The proposal states that storage services would be provided by two devices: the HP 

XP7 storage array for the “mainframe” component and the HP PAR 7400 storage array for the 

“open system” storage component. AR at 5806; 13,732. The proposal also states that HP is a 

“major subcontractor” for WWT. AR at 13,713. 

a. First Evaluation 

DISA evaluated WWT’s proposal on four occasions. During the initial evaluation, DISA 

assigned WWT’s proposal a technical/management rating of “unacceptable,” because the 
 5 

proposal did not meet the requirements in the RFP for storage capabilities, redundant array of 

independent disks, data re-duplication and required technical capabilities. AR at 2977. The 

agency also rated the proposal “moderate” for technical/management risk. AR at 2977-78. In 

connection with this initial evaluation, DISA issued 30 evaluation notices to WWT regarding the 

proposal. AR at 3055-137. These notices specifically requested information about how the 

proposal would satisfy the technical requirements of the RFP, and particularly, how the proposed 

HP 3PAR 7400 storage solution would meet the requirement for enterprise class storage. AR at 

3097. 

b. Second Evaluation 

After reviewing DISA’s evaluation notices, WWT submitted a revised proposal on 

April 24, 2014. AR at 5763-6320. In that proposal, WWT replaced its HP 3PAR 7400 solution 

with the HP 3PAR 10000 series, to satisfy the technical requirements of the RFP. AR at 5806. 

Unfortunately for WWT, its second proposal did not resolve all of DISA’s concerns and the 

agency continued to question whether WWT’s proposal could meet the requirements of the RFP. 

AR at 6621-77. To address these remaining concerns, DISA issued another round of evaluation 

notices to WWT. AR at 6700-6759. 

c. Third Evaluation 

Once again, WWT revised its proposal to address DISA’s concerns. AR at 8601-9068. 

In its revised proposal, WWT assured DISA that its proposed solution would exceed the RFP’s 

requirement for heterogeneous data migration and 3-way replication of data. AR at 16,497. 

Specifically, WWT stated that its solution exceeded the requirement for heterogeneous data 

migration, because its “AutoLUN feature is used to transparently migrate data between different 

tiers of storage non-disruptively, whether native to the array or externally connected virtualized 

heterogeneous storage.” Id. Furthermore, WWT stated that its solution exceeded the 

requirement for 3-way replication of data because it “is capable of 4-way replication.” Id. 

The agency conducted proof of concept testing for WWT’s revised proposal on July 22-

23, 2014. AR at 9096; 9094-112. WWT successfully completed this testing and received a 

“pass” rating. AR at 17,358; 9101-08. Because DISA found that the cost would be 

unreasonably high, the agency did not test data migration during proof of concept testing. AR at 

18,355. 
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After proof of concept testing, the agency issued another round of evaluation notices to 

WWT. AR at 9161-79. In response to DISA’s evaluation notices, WWT revised its proposal 

for the third time on August 18, 2014. AR at 11,138-548. 

d. Final Evaluation 

Following yet another round of evaluation notices, WWT submitted its final proposal to 

the agency on November 6, 2014. AR at 14,260-73; 16,472-829. After reviewing WWT’s final 

proposal, DISA issued a final consensus report. AR at 17,439-79. For the technical solution 

subfactor, DISA assigned WWT’s proposal a technical/management rating of “acceptable” and a 

technical/management risk rating of “low.” AR at 17,439-79. Specifically, the agency’s final 

consensus report found that WWT’s final proposal: 

[met the] 99.999% availability requirement specified in [the performance work 

statement] Section 6.5.1 by providing the HP XP7 and the HP 3PAR 10000 as the 

enterprise class storage solution. The HP hardware meets all the enterprise class 

capabilities requirements detailed in [the performance work statement] Section 

6.1.1.1 to ensure that the 99.999% availability requirement detailed in [the 

performance work statement] Section 6.5.1 can be met. 

AR at 17,441. With regards to the service delivery subfactor, DISA found that WWT’s proposal 

“met all the stated service delivery requirements” in the RFP. AR at 17,358. In particular, the 

agency found that the proposal addressed the RFP’s requirements regarding new technology. 

AR at 17,450. 

With respect to the proof of concept evaluation subfactor, the agency found that WWT 

successfully completed all 25 proofs of concept tests. AR at 17,452-58. The agency also 

assigned the proposal a “substantial confidence” rating for the past performance evaluation factor 

under the RFP. AR at 17,458. 

Lastly, with respect to the cost/price evaluation factor, DISA found that WWT’s pricing 

was consistent with the technical representations in the proposal. AR at 17,473. “In accordance 

with FAR 15.404, reasonableness of the offeror’s price was established based on adequate price 

competition.” AR at 17,472. The agency also noted in its final consensus report that WWT’s 

proposed price was “well below” the Independent Government Cost Estimate for the ESS II 

contract, but that differences in the methodology for evaluation in the RFP precluded a 
 7 

comparison between WWT’s price and the Independent Government Cost Estimate. AR at 

17,474. 

3. Award Of The ESS II Contract 

Following the evaluation process, DISA’s source selection evaluation groups 

recommended that the agency award the ESS II contract to WWT. AR at 18,311. In addition, 

DISA’s Source Selection Authority conducted an “integral assessment” of all competitive 

proposals which found that: 

With WWT’s overall cost being 13% to 265% lower than any other offeror’s 

proposed cost, in my assessment, there are more benefits to the Government in the 

proposal from WWT than from [any other competitive range offeror]. . . . The 

additional evaluated strengths of the ViON and EMC proposals absolutely do not 

justify the additional costs to the Government if award were to be made to either 

of those two offerors. 

AR at 17,386. In reaching this conclusion, the source selection authority noted that WWT’s 

proposed price was the lowest offer, and that each offeror’s price had been “driven by its specific 

hardware configuration and overall technical solution proposed to meet the requirements of the 

performance work statement.” AR at 17,379. Based upon these findings, the agency determined 

that WWT’s proposal represented the best value to the government. AR at 17,387. DISA 

subsequently awarded the ESS II contract to WWT on December 17, 2014. AR at 17,346-87. 

4. Alleged Organizational Conflict Of Interest 

During its protest of the award of the ESS II contract before the Government 

Accountability Office (“GAO”), ViON raised, for the first time, an alleged potential 

organizational conflict of interest involving WWT and another DISA contractor–the Evaluator 

Group. AR at 17,556-605. Specifically, ViON alleges that WWT’s subcontractor, HP, has a 

financial relationship with the Evaluator Group that could give rise to an organizational conflict 

of interest regarding the evaluation of WWT’s proposal. Pl. Mem. at 19. 

The Evaluator Group has provided consulting services to DISA since at least 2009. AR 

at 18,754-55. On August 8-9, 2014, a cofounder and senior strategist of the Evaluator Group, 

Randy Kearns, made a presentation on storage trends and technology at DISA. AR at 18,757; 

18,175. 
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Mr. Kearns and the Evaluator Group had no involvement in the evaluation of proposals 

for the ESS II contract. AR at 18,174. During a briefing held on December 15, 2014, DISA 

stated that, at that time, the agency found “[n]o known potential conflicts of interest” involving 

the solicitation of the ESS II contract. AR at 19,937. Because it does not believe an 

organizational conflict of interest exists, DISA has not conducted an investigation or review into 

any organizational conflicts of interest involving Mr. Kearns or the Evaluator Group. AR at 

18,842. 

B. Procedural Background 

Following the award of the ESS II contact to WWT, ViON and another disappointed 

bidder, EMC Corporation, filed GAO protests challenging DISA’s award decision. AR at 

17,556-605; AR at 18,047-143. The GAO denied both protests on April 3, 2015. AR at 19,076-

87. 

On April 8, 2015, ViON filed a complaint in this Court challenging DISA’s award 

decision. See generally Compl. On April 9, 2015, following an initial status conference, the 

Court granted WWT’s oral motion to intervene in this matter and entered a protective order. See 

generally Order Granting Mot. for Protective Order; Order Granting Defendant-Intervenor’s Oral 

Mot. to Intervene. On April 17, 2015, defendant filed the administrative record, which has been 

subsequently corrected by defendant three times; on April 24, 2015, May 13, 2015, and May 15, 

2015, respectively. See generally Administrative Record. 

On May 11, 2015, plaintiff filed a motion to supplement the administrative record with 

the expert declaration of Mr. Claus Mikkelsen (“Mikkelsen Declaration”). See generally Pl. 

Mot. to Supp. On May 15, 2015, plaintiff filed a motion for judgment on the administrative 

record. See generally Pl. Mot. On May 29, 2015, defendant and defendant-intervenor separately 

filed cross-motions for judgment on the administrative record, which also included oppositions 

to plaintiff’s motion to supplement the administrative record. See generally Def. Mot.; Def.-

Intervenor Mot. 

On June 5, 2015, plaintiff filed its reply in support of its motion for judgment on the 

administrative record and its response to defendant and defendant-intervenor’s cross-motions. 

See generally Pl. Reply. On June 12, 2015, defendant and defendant-intervenor each filed a 
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reply brief in support of their motions for judgment on the administrative record. See generally 

Def. Reply; Def.-Intervenor Reply. 

On June 17, 2015, plaintiff filed a motion to partially strike defendant’s reply in support 

of its motion for judgment on the administrative record or, in the alternative, for leave to file a 

sur-reply. See generally Pl. Mot. to Strike. On June 22, 2015, the Court denied plaintiff’s 

motion to strike, and granted the motion to file a sur-reply. See generally Order Granting in Part 

and Denying in Part Pl. Mot. to Strike; Pl. Sur-reply. The Court held oral argument on the 

parties’ cross motions for judgment on the administrative record and plaintiff’s motion to 

supplement the administrative record on June 25, 2015. See generally Oral Arg. Tr. 

III. JURISDICTION AND LEGAL STANDARDS 

A. Jurisdiction And Bid Protests 

The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid 

protests brought 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 a proposed 

procurement.” 28 U.S.C. § 1491(b)(1) (2012). In bid protest cases, this Court reviews agency 

actions under the “arbitrary and capricious” standard. See 28 U.S.C. § 1491(b)(4) (adopting the 

standard of review set forth in the Administrative Procedure Act). And so, under the 

Administrative Procedure Act standard, an award may be set aside if “(1) the procurement 

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

of regulation or procedure.” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 

(Fed. Cir. 2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 

F.3d 1324, 1332 (Fed. Cir. 2001)). The United States Court of Appeals for the Federal Circuit 

has explained that: 

When a challenge is brought on the first ground, the test 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. When a challenge is brought on the 

second ground, the disappointed bidder must show a clear and prejudicial 

violation of applicable statutes or regulations. 

Id. at 1351 (citations omitted). 
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In reviewing an agency’s procurement decision, the Court should recognize that the 

agency’s decision is entitled to a “presumption of regularity,” Citizens to Pres. Overton Park, 

Inc. v. Volpe, 401 U.S. 402, 415 (1971), overruled on other grounds by Califano v. Sanders, 430 

U.S. 99 (1977) (citations omitted), and the Court should not substitute its judgment for that of the 

agency. Cincom Sys., Inc. v. United States, 37 Fed. Cl. 663, 672 (1997). The protestor must 

show, by a preponderance of the evidence, that the agency’s actions were either without a 

reasonable basis or in violation of applicable procurement law or procedure. Info. Tech. & 

Applications Corp. v. United States, 51 Fed. Cl. 340, 346 (2001), aff’d, 316 F.3d 1312 (Fed. Cir. 

2003) (“ITAC”); see also Bannum, Inc. v. United States, 60 Fed. Cl. 718, 723 (2004); Gentex 

Corp. v. United States, 58 Fed. Cl. 634, 648 (2003). This standard “is highly deferential” and 

“requires a reviewing court to sustain an agency action evincing rational reasoning and 

consideration of relevant factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 

1054, 1058 (Fed. Cir. 2000) (citing Bowman Transp., Inc. v. Ark.–Best Freight Sys., Inc., 419 

U.S. 281, 285 (1974)). 

In addition, as long as there is “a reasonable basis for the agency’s action, the Court 

should stay its hand even though it might, as an original proposition, have reached a different 

conclusion . . . .” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989). But, if 

“the agency entirely fail[s] to consider an important aspect of the problem [or] offer[s] an 

explanation for its decision that runs counter to the evidence before the agency,” then the 

resulting action lacks a rational basis and, therefore, is defined as “arbitrary and capricious.” 

Ala. Aircraft Indus., Inc.–Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) 

(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)) 

(internal quotation marks omitted). 

B. Judgment On The Administrative Record 

Generally, Rule 52.1 limits this Court’s review of an agency’s procurement decision to 

the administrative record. RCFC 52.1; see Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 

1374, 1379 (Fed. Cir. 2009) (“[T]he focal point for judicial review should be the administrative 

record already in existence.”). And so, unlike a summary judgment motion brought pursuant to 

Rule 56, the existence of genuine issues of material fact does not preclude judgment on the 

administrative record under Rule 52.1. Tech. Sys., Inc. v. United States, 98 Fed. Cl. 228, 242 
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(2011); RCFC 56. Rather, the Court’s inquiry is whether, “given all the disputed and undisputed 

facts, a party has met its burden of proof based on the evidence in the record.” A&D Fire Prot., 

Inc. v. United States, 72 Fed. Cl. 126, 131 (2006). 

In addition, under its bid protest jurisdiction, the Court “may award any relief [it] 

considers proper, including declaratory and injunctive relief . . . .” 28 U.S.C. § 1491(b)(2); see 

also Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009). In considering 

whether to issue a permanent injunction, the Court looks to (1) whether plaintiff will succeed on 

the merits; (2) whether plaintiff will suffer irreparable harm in the absence of injunctive relief; 

(3) whether the balance of hardships to the parties favors granting injunctive relief; and (4) 

whether it is in the public interest to grant injunctive relief. PGBA, LLC v. United States, 389 

F.3d 1219, 1228-29 (Fed. Cir. 2004). To prevail, plaintiff must show an entitlement to injunctive 

relief by clear and convincing evidence. CSE Constr. Co., Inc. v. United States, 58 Fed. Cl. 230, 

261 (2003). 

C. Supplementing The Administrative Record 

The United States Court of Appeals for the Federal Circuit held in Axiom Resource 

Management, that the “parties’ ability to supplement the administrative record is limited” and 

that the administrative record should only be supplemented “if the existing record is insufficient 

to permit meaningful review consistent with the APA.” 564 F.3d at 1379-81; see also Caddell 

Constr. Co., Inc. v. United States, 111 Fed. Cl. 49, 93 (2013). In Axiom, the Federal Circuit cited 

to the Supreme Court’s decision in Camp v. Pitts, which stated that “the focal point for judicial 

review should be the administrative record already in existence, not some new record made 

initially in the reviewing court.” 564 F.3d at 1379 (quoting Camp v. Pitts, 411 U.S. 138, 142 

(1973)). This focus is maintained in order to prevent courts from using new evidence to “convert 

the arbitrary and capricious standard into effectively de novo review.” L-3 Commc’ns EOTech, 

Inc. v. United States, 87 Fed. Cl. 656, 671 (2009) (citations omitted). 

This Court has interpreted the Federal Circuit’s directive in Axiom to mean that 

supplementation of the administrative record is permitted to correct mistakes and fill gaps, but is 

not permitted when the documents proffered are unnecessary for an effective review of the 

government’s procurement decision. L-3 Commc'ns EOTech, 87 Fed. Cl. at 672. And so, this 
 12 

Court has precluded supplementation of the administrative record with declarations that contain 

“post-hoc contentions of fact and argument.” Id. 

IV. ANALYSIS 

ViON challenges DISA’s award decision on four grounds. First, ViON argues that DISA 

improperly evaluated WWT’s proposal, in violation of the express terms of the RFP and 

applicable law. Pl. Mem. at 21-25. Second, ViON contends that DISA failed to conduct a 

proper price realism analysis of WWT’s proposed price, as required by the RFP. Pl. Mem. at 25-

30. Third, ViON contends that DISA failed to enforce the RFP’s prohibition on “assumptions 

and exceptions” in its evaluation of WWT’s proposal. Pl. Mem. at 30-34. Lastly, ViON argues 

that DISA failed to conduct a proper investigation into a possible organizational conflict of 

interest. Pl. Mem. at 34-36. 

The government and WWT maintain that the administrative record shows that DISA 

appropriately evaluated WWT’s proposal and that the agency’s award decision was reasonable 

and in accordance with law. For the reasons discussed below, the Court agrees. 

A. Supplementation Of The Administrative Record Is Not Warranted 

As an initial matter, the Court must deny ViON’s request to supplement the extensive 

administrative record in this case, because the declaration proffered by ViON addresses the legal 

issues before the Court in this bid protest matter. See generally Pl. Mot. to Supp. On April 17, 

2015, the government submitted an extensive administrative record in this case, consisting of 

more than 20,000 pages. See generally Administrative Record. Since that initial filing, the 

government has subsequently corrected the record on three separate occasions to ensure that the 

administrative record is complete and contains the information required under Appendix C of the 

Court’s Rules. Id.; RCFC Appendix C. 

Nonetheless, ViON seeks to supplement the administrative record in this case with the 

declaration of its expert, Claus Mikkelsen. See generally Pl. Mot. to Supp. In support of its 

motion to supplement, ViON argues that “given the highly technical nature of this procurement, 

and of the parties’ arguments in this bid protest, an expert’s testimony is necessary for effective 

judicial review by this Court.” Pl. Mot. to Supp. at 1. 
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The government and WWT oppose ViON’s request. See generally Def. Resp. to Mot. to 

Supp.; Def.-Intervenor Resp. to Mot. to Supp. In particular, the government maintains that such 

a supplementation would be improper, because the Mikkelsen Declaration “constitutes a piece of 

advocacy that reaches the legal conclusions ViON has posited in its protest.” Def. Resp. to Mot. 

to Supp. at 51. The Court must agree. 

In this case, the declaration proffered by ViON fails to meet the limited circumstances 

where supplementation of the administrative record would be appropriate. This Court permits 

parties to supplement the administrative record if such supplementation is meaningful to judicial 

review, but prohibits supplementation when it seeks to address the legal issues before the Court. 

L-3 Commc'ns EOTech, 87 Fed. Cl. at 672 (denying supplementation of the administrative record 

because plaintiff’s proffered declaration “directly addresses the dispute before the court–whether 

the government’s decision to eliminate [the protester] from this competition . . . was arbitrary or 

capricious”); see also InGenesis, Inc. v. United States, 104 Fed. Cl. 43, 49 (2012) (denying 

supplementation of the administrative record with a declaration of the prospective contractor’s 

president, which sought to attack the agency’s decision, and reasoning that additional evidence 

was not necessary for the Court to conduct its very limited review); RhinoCorps Ltd. Co. v. 

United States, 87 Fed. Cl. 261, 282 (2009) (denying supplementation with a declaration and 

affidavit because they “proffer facts that substitute plaintiff’s opinion for the [agency's] technical 

determinations”).

Here, the Mikkelsen Declaration analyzes the technical merits of WWT’s proposal and 

concludes that the proposal does not meet the requirements of the RFP. Mikkelsen Decl. at ¶ 4 

(“[M]y review and analysis of the AR demonstrates that WWT’s proposal does not meet the 

RFP’s express ‘Enterprise storage’ requirements.”); Mikkelsen Decl. at ¶¶ 7-8 (“I can testify 

with confidence that the 3PAR satisfies neither the [heterogeneous data migration] nor [3-way 

replication of data] requirements set forth in the RFP.”); Mikkelsen Decl. at ¶¶ 20-38 (arguing 

that WWT’s 3PAR Solution does not meet the performance work statement’s requirements for 

“3 way replication of data” and “heterogeneous data migration”); Mikkelsen Decl. at ¶¶ 39-44 

(arguing that DISA failed to consider deficiencies in WWT’s proposal). The Mikkelsen 

Declaration does not correct any mistakes or fill any gaps in the extensive administrative record 

before the Court. Rather, the declaration reiterates ViON’s legal position in this case−that 

WWT’s proposal is technically deficient. In addition, ViON acknowledges that this declaration 
 14 

was not part of the record before DISA at the time the agency made its award decision. Pl. Mot. 

to Supp. at 5. 

Given this, allowing ViON to supplement the administrative record with the Mikkelsen 

Declaration would run afoul of the Federal Circuit’s clear directive in Axiom−that this Court 

should not supplement the administrative record unless the omission of the information 

“precludes effective judicial review.” Axiom Res. Mgmt., 564 F.3d at 1380. While the 

Mikkelsen Declaration does provide a useful summary of ViON’s legal position in this case, it is 

not needed for the Court to effectively review this bid protest matter. And so, ViON’s motion to 

supplement the administrative record is denied. 

B. The Record Shows That DISA’s Award Decision Was Reasonable And In 

Accordance With Law 

The extensive administrative record shows that DISA’s decision to award the ESS II 

contract to WWT was reasonable and in accordance with the requirements of the RFP and 

applicable law. This Court reviews the agency’s award decision under the arbitrary and 

capricious standard and affords DISA a presumption of regularity. See 28 U.S.C. § 1491(b)(4); 

Citizens to Pres. Overton Park, 401 U.S. at 415; Cincom Sys., Inc., 37 Fed. Cl. at 672. In this 

regard, the Court does not substitute its judgment for that of DISA. Cincom Sys., Inc., 37 Fed. 

Cl. at 672. Rather, the Court examines the administrative record to determine “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.” Banknote, 365 F.3d at 1351 (citations omitted). 

ViON maintains in this bid protest action that DISA did not adequately evaluate WWT’s 

proposal and, that as a result, WWT cannot successfully perform the ESS II contract. Pl. Mem. 

at 10, 22. Specifically, ViON contends that the agency failed to: (1) properly evaluate WWT’s 

proposed technical solution; (2) conduct a price realism analysis of WWT’s proposal; (3) find 

that WWT’s proposal took exception to several material terms of the RFP; and (4) conduct an 

investigation into a potential organizational conflict of interest in involving WWT. The 

administrative record shows, however, that DISA carefully reviewed WWT’s proposal by 

conducting numerous evaluations, issuing 70 evaluation notices, and conducting two days of 

proof of concept testing. AR at 17,440; 9094-112; 11,138-56. The administrative record also 
 15 

shows that the agency’s evaluation of WWT’s proposal complied with the requirements of the 

RFP, the Federal Acquisition Regulation, and applicable law. And so, for the reasons discussed 

below, the Court must reject ViON’s challenge to the agency’s award decision. 

1. DISA Properly Evaluated WWT’s Proposed Technical Solution 

The administrative record shows that DISA conducted an appropriate technical 

evaluation of WWT’s proposal. ViON challenges DISA’s technical evaluation of WWT’s 

proposal on two grounds: First, ViON argues that DISA should have found that WWT’s 3PAR 

solution for enterprise storage could not perform heterogeneous data migration3

 and 3-way 

replication of data. 4 Pl. Mem. at 8; see also AR at 3264-65. Second, ViON argues that the 

agency violated the RFP when it did not conduct proof of concept testing to ensure that WWT’s 

proposed technical solution could perform heterogeneous data migration. Id. For the reasons

discussed below, ViON’s arguments are not supported by the evidence in the administrative 

record. 

a. DISA Reasonably Concluded That WWT’s Technical Solution 

Could Perform Heterogeneous Data Migration And 3-Way 

Replication Of Data 

The administrative record shows that DISA carefully evaluated WWT’s technical 

solution and that the agency reasonably concluded WWT’s proposal complied with the technical 

requirements of the RFP after WWT revised its proposal. In its initial proposal, WWT proposed 

the HP 3PAR 7400 for its open systems solution. AR at 2071. DISA assigned this proposal a 

technical/management rating of “unacceptable” and a technical/management risk rating of 

“moderate.” AR at 2977-78. DISA also issued an initial round of 17 evaluation notices, which 

related to WWT’s proposed technical solution. AR at 3055-137. In response, WWT revised its 

proposal and replaced the HP 3PAR 7400 solution with the HP 3PAR 10000 solution. AR at 

 

3

 ViON refers to this as “non-disruptive data migration” (“NDDM”). Pl. Mem. at 6-7. But the 

government does not accept this terminology, noting that the term is not in the performance work 

statement. Def. Mot. at 28. 

4

 ViON refers to this as “three datacenter replication” (“3DC”). Pl. Mem. at 6. But, the 

government does not accept this terminology, noting that the term is not in the performance work 

statement. Def. Mot. at 29. 
 16 

5806. WWT also represented that this “update will serve to meet the requirements defined in 

Task 1 for enterprise class storage . . . .” Id. 

In response to WWT’s revised proposal, DISA conducted a second evaluation of the 

technical merits of the proposal. AR at 6621-77. During its second evaluation, DISA carefully 

examined how WWT’s updated 3PAR solution met the requirements of the RFP. AR at 6647; 

6653. The second evaluation also prompted DISA to issue a second round of evaluation notices, 

including eight evaluation notices that specifically related to WWT’s proposed technical 

solution. AR at 6700-759. Once again, WWT revised its proposal. AR at 8601-9068. 

The administrative record also shows that DISA tested WWT’s proposal to ensure 

compliance with the technical requirements of the RFP. AR at 9094-112. Following the second 

evaluation, DISA conducted proof of concept testing, in order for WWT “to demonstrate [that 

its] proposed technical/management solution” met the RFP’s requirements. AR at 9096. WWT 

successfully completed all 25 proof of concept tests, ten of which specifically tested WWT’s 

proposed technical solution. See AR at 17,452-55; see also AR at 142; 3265-66. Following the 

proof of concept testing, DISA also issued a third round of evaluation notices, which included 

five evaluation notices related specifically to WWT’s proposed technical solution. AR at 9161-

79. 

WWT revised its proposal for a fourth time and submitted a written response to the 

evaluation notices. AR at 11,138-548. WWT’s final proposal also included a detailed chart that 

listed each requirement for the technical solution in the RFP and explained how its proposed 

solution met or exceeded those requirements. AR at 16,497-98. Specifically relevant here, 

WWT’s final proposal stated that the proposed technical solution “exceeds” the requirement in 

section 6.1.1.1 of the performance work statement to “[s]upport 3-way replication of data” 

because it is capable of 4-way replication. AR at 16,497.5

 Furthermore, the final proposal also 

provided that WWT’s technical solution met the requirement for “heterogeneous data migration” 

because “[t]he AutoLUN feature is used to transparently migrate data between different tiers of 

 

5

 ViON alleges that this assertion by WWT applies only to its XP7 solution, not its 3PAR 

solution, because HP makes a similar statement about 4-way replication that references only the 

XP7. Pl. Mem. at 8; AR at 14,563. But, nothing in HP’s proposal or WWT’s proposal states 

that 3PAR solution could not meet the requirements of the RFP. AR at 14,563-55. 
 17 

storage non-disruptively, whether native to the array or externally connected virtualized 

heterogeneous storage.” AR at 16,497. 

After reviewing WWT’s final proposal, DISA determined that WWT’s final proposal met 

the “enterprise class capabilit[y] requirements in [performance work statement section] 6.1.1.1.” 

AR at 17,441. The agency’s final consensus report also noted that this conclusion was based 

upon a thorough analysis of WWT’s proposal, the 30 separate evaluation notices DISA issued 

relating to the proposed technical solution, and a three-hour telephone conference with WWT. 

AR at 17,440.6

 Furthermore, in explaining its decision to award the ESS II contract to WWT, 

DISA noted that “[t]he WWT solution met all the stated Technical Solution requirements of the 

[performance work statement]. WWT provides HP’s 3PAR 10000 series and HP’s XP7 storage 

hardware to meet the stated storage solution requirements for Enterprise class storage.” AR at 

17,358 (DISA’s Source Selection Document). 

Given the extensive and well-documented review of WWT’s proposal, the examination 

of the administrative record in this case reveals that DISA carefully evaluated the technical 

merits of WWT’s proposal and that there was a rational basis for the agency’s conclusion that the 

proposed technical solution met the requirements of the RFP. 

b. The RFP Did Not Require Testing For Data Migration 

The administrative record also shows that DISA was not required to include data 

migration as part of its proof of concept testing. Pl. Mem. at 11. In fact, a plain reading of the 

relevant portions of the RFP shows that testing for data migration is not a requirement for the 

solicitation. 

 

6

 The final consensus report found that each of the 30 evaluation notices were “resolved to the 

Agency’s satisfaction.” AR at 17,440. In particular, the final consensus report noted the initial 

“uncertainty” by DISA evaluators about whether WWT’s 3PAR solution individually met the 

requirements in section 6.1.1.1 for enterprise class storage. Id. The final consensus report notes, 

however, that WWT addressed this uncertainty by replacing the HP 3PAR 7400 with the HP 

3PAR 10000 solution, which served to “clarif[y] their solution and satisfied the Government's 

requirement.” Id. The final consensus report further indicates that WWT’s proposal met the 

requirement for data migration strategy because its proposal “provid[ed] details on how the 

offeror will perform the migration from the existing DISA storage infrastructure to the offeror’s 

solution.” Id. 
 18 

Specifically, the RFP provides in relevant part that, if DISA elects to conduct proof of 

concept testing, the proof of concept testing will: 

[T]est all five (5) supported environments referenced in Task 3, 6.3.1 of the 

[performance work statement]. If a Proof of Concept Demonstration is required, a 

detailed test plan, together with any government provided data required to be used 

in the demonstration, will be provided to each Offeror 14 calendar days prior to 

the demonstration. 

AR at 3230 (performance work statement section 4.2.2). Data migration is not one of the five 

tasks listed in section 6.3.1 of the performance work statement. AR at 3269. And so, this 

particular kind of testing is not required by the RFP. Id.7

In addition, ViON’s challenge of the agency’s proof of concept test plan is also untimely. 

This Court has long recognized that an offeror wishing to challenge the terms of a solicitation 

must do so before the close of the bidding process. Blue & Gold Fleet, L.P. v. United States, 492 

F.3d 1308, 1313 (Fed. Cir. 2007) (holding that a protester who knew the agency’s interpretation 

of a solicitation but failed to challenge it before bids were due, waived its ability to object 

afterwards). Here, the administrative record shows that ViON received the proof of concept 

testing plan for this solicitation on June 26, 2014, and that data migration testing is not 

mentioned in that plan. AR at 9069-89. To the extent that ViON believes the RFP called for 

data migration testing, it should have raised this concern prior to its own proof of concept testing, 

which occurred in July 2014.8

 4 C.F.R. § 21.2(a)(2) (2015); see also Micro-Research, B-

 

7

 The list in Task 3, section 6.3.1 of the performance work statement provides as follows: 

“6.3.1.1 IBM System z (IBM z/OS, IBM z/VM, Red Hat Enterprise Linux, SUSE Linux 

Enterprise Server); 6.3.1.2 X-86 (Windows Server, Red Hat Enterprise Linux, SUSE Linux 

Enterprise Server, Solaris, Vmware vSphere Enterprise Plus); 6.3.1.3 Itanium (HP-UX); 6.3.1.4 

SPARC (Solaris); 6.3.1.5 IBM System p (AIX); 6.3.1.6 Any other operating system software that 

DISA may require in the future.” AR at 3269. 

8

 ViON argues that it had not been put on notice about the scope of the proof of concept testing, 

because ViON could have received a different test plan than WWT or other offerors. Pl. Reply 

at 13. But, the government made clear during oral argument that all offerors received the same 

test plan. See Oral Arg. Tr. at 65. Furthermore, as the government notes in its briefs, conducting 

different proof of concept tests for different offerors would have constituted disparate treatment 

of the offerors, which is not permitted in government procurements. See Sentrillion Corp. v. 

United States, 114 Fed. Cl. 557, 568 (2014) (“It is well established that the agency must treat all 

offerors equally and consistently apply evaluation factors.”). 
 19 

220778, 1986 WL 63012, at *1 (Comp. Gen. Jan. 3, 1986) (finding that a “[p]rotest against [a] 

known requirement to be imposed in a benchmark test is untimely when not filed with the 

agency until after the date of the benchmark”). 

2. DISA Properly Evaluated WWT’s Proposed Price And Conducted A 

Price Realism Analysis 

ViON’s attempt to set aside DISA’s award decision because the agency failed to conduct 

a price realism analysis is equally misguided. Pl. Mem. at 25. ViON raises three arguments 

challenging DISA’s evaluation of the price component of WWT’s proposal: (1) a price realism 

analysis is required by the RFP; (2) DISA failed to conduct and document any price realism 

analysis; and (3) DISA failed to compare WWT’s price to the Independent Government Cost 

Estimate, as required by the RFP. Id. at 26. The Court addresses each of these arguments in 

turn. 

As an initial matter, ViON correctly argues that the RFP requires a price realism analysis. 

Id. at 25-28. The Federal Acquisition Regulation (“FAR”) requires that, before awarding a 

fixed-priced contract, an agency must determine whether the price offered is fair and reasonable. 

FAR 15.402(a) (2015). However, the FAR does not mandate that the agency conduct a price 

realism analysis. Id.; see FCN, Inc. v. United States, 115 Fed. Cl. 335, 374 (2014) (“[W]ith a 

fixed-price contract, such as the one awarded pursuant to the Solicitation at issue, ‘an agency 

may, but is not required to consider whether the offered price is realistic.’” (citations omitted)); 

Mil–Mar Century Corp. v. United States, 111 Fed. Cl. 508, 541 (2013) (“[A]n agency ‘may’ 

perform price realism analyses ‘on competitive fixed-price-type contracts.’” (quoting FAR 

15.404–1(d)(3))). Nonetheless, this Court has held that when the RFP provides that 

“unrealistically low offers ‘may be considered unacceptable and rejected on that basis,’” a price 

realism analysis has been contemplated and must be conducted. FCN, Inc., 115 Fed. Cl. at 376 

(citing Linc Gov't Servs., LLC v. United States, 108 Fed. Cl. 473, 500 (2012); Logistics 2020, 

Inc., B–408543, 2013 WL 6235560, at *6 (Comp. Gen. Nov. 6, 2013) (“Given the solicitation's 

express statement that proposals would be evaluated to determine if prices were unrealistically 

high or low, we see no basis for any conclusion other than that the agency committed itself to a 

review of price realism.” (internal quotations omitted)); see also Flight Safety Servs. Corp., B403831, B-403831.2, 2010 WL 5241433 at *2 (Comp. Gen. Dec. 9, 2010) (requiring a price 
 20 

realism analysis when the RFP stated that the “Government may reject any proposal evaluated to 

be . . . unreasonably high or low in cost when compared to Government estimates”). 

In this case, the RFP expressly provides that “[t]he Government may reject any proposal 

that is . . . unreasonably high or low in price when compared to Government estimates, such that 

the proposal is deemed to reflect an inherent lack of competence of failure to comprehend the 

complexity and risks of the program.” AR at 140 (emphasis added). The RFP further requires 

that each “offeror’s cost/price proposal will be evaluated, using one or more of the techniques 

defined in FAR 15.404, in order to determine if it is reasonable and complete.” AR at 149 

(emphasis added). As this Court has previously recognized, such language commits the agency 

to conducting a price realism analysis. FCN, Inc., 115 Fed. Cl. at 376. And so, ViON correctly 

maintains that the RFP required a price realism analysis in this case. 

The administrative record shows, however, that DISA conducted a reasonable price 

realism analysis of WWT’s proposal. Pl. Mem. at 12-15. In this regard, the FAR “does not 

mandate any particular approach” to conducting a price reasonableness analysis. Pemco 

Aeroplex, Inc., B-310372.3, 2008 WL 2684841, at *5 (Comp. Gen. June 13, 2008). Rather, the 

FAR simply directs that: 

Normally, competition establishes price reasonableness. Therefore, when 

contracting on a firm-fixed-price or fixed-price with economic price adjustment 

basis, comparison of the proposed prices will usually satisfy the requirement to 

perform a price analysis, and a cost analysis need not be performed. . . . The 

contracting officer shall document the cost or price evaluation. 

FAR 15.305(a)(1) (2015). And so, the Court need only look to whether the agency acted 

reasonably and in a manner consistent with the RFP’s requirements. D & S Consultants, Inc. v. 

United States, 101 Fed. Cl. 23, 33 (2011), aff'd, 484 F. App'x 558 (Fed. Cir. 2012). 

In this regard, this Court has held that, when the agency elects to conduct a price realism 

analysis, “[t]he nature and extent” of that assessment are “matters within the agency’s 

discretion.” Int’l Outsourcing Servs. v. United States, 69 Fed. Cl. 40, 48 (2005) (internal 

quotation marks and citation omitted); Mil–Mar Century Corp., 111 Fed. Cl. at 541 (“[U]nless 

the agency commits itself to a particular methodology in a solicitation . . . the nature and extent 

of a price realism analysis, as well as an assessment of potential risk associated with a proposed 

price, are generally within the sound exercise of the agency's discretion.” (citations omitted)). 
 21 

And so, the Court grants the agency broad discretion in conducting the analysis. Ceres Envtl. 

Servs., Inc. v. United States, 97 Fed. Cl. 277, 303 (2011); see also Orion Tech., Inc. v. United 

States, 704 F.3d 1344, 1351 (Fed. Cir. 2013) (“Agencies are entitled to a high degree of 

deference when faced with challenges to procurement decisions.”). 

In this case, the administrative record shows that DISA performed and documented a 

price realism analysis of WWT’s proposal. Specifically, DISA issued 26 evaluation notices to 

WWT regarding price, which DISA noted WWT responded to and “resolved” to the agency’s 

satisfaction. AR at 17,473-77;9 see Acad. Facilities Mgmt., 87 Fed. Cl. 441, 468 (2009) (noting 

that the agency “handled pricing realism in an appropriate manner” when it “was concerned with 

price variances, which it brought to the offerors’ attention during discussions, and ‘was satisfied 

with the responses it received . . . .’” (citations omitted)); Info. Scis, 73 Fed. Cl. 70, 102 (2006) 

(denying a challenge to a price realism analysis because the agency had provided a “cogent 

explanation” concerning a low price). DISA also found that WWT’s proposed price was 

“complete,” “calculated in accordance with Attachment J-3 Cost Model of the RFP,” and that 

“all solicitation requirements were priced for all contract periods (base, option, and extension 

periods), figures were accurate and correctly calculated, and prices were presented in the 

Government-provided pricing scenario.” AR at 17,472. In addition, DISA specifically assessed 

the “reasonableness” of WWT’s price, stating that “[i]n accordance with FAR 15.404, 

reasonableness of the offeror's price was established based on adequate price competition.” Id. 

And so, the agency reasonably concluded that WWT “addressed all Government uncertainties 

and its cost/price proposal is consistent with the work to be performed based on its technical 

approach.” AR at 17,473. 

In addition, DISA’s Source Selection Authority reiterated that “[i]n accordance with FAR 

15.404, reasonableness of the offerors’ prices was established based on adequate price 

 

9

 This Court has held that the agency may make “use of questions to offerors as follow-up 

verification by which to satisfactorily perform a price realism analysis.” FCN, Inc., 115 Fed. Cl. 

at 379 (citing Elec. Hardware Corp., 2005 WL 3681971, at *4 (Comp. Gen. Jan. 28, 2005)); see 

also Raytheon Co. v. United States, No. 15-077C, 2015 WL 3473683, at *5-7 (Fed. Cl. May 11, 

2015) (examining the Air Force’s use of evaluation notices to verify offerors’ price proposals as 

part of an analysis on price reasonableness and realism); Patriot Taxiway Indus. v. United States, 

98 Fed. Cl. 575, 587 (2011) (holding that use of evaluation notices to verify the accuracy of 

pricing offered by an offeror in a fixed-price contract satisfied the price reasonableness analysis). 
 22 

competition.” AR at 17,379. The Source Selection Authority also concluded that “WWT’s cost 

is significantly less than ViON and EMC which provides a best-value solution to the 

Government.” AR at 17,387. In making the contract award to WWT, DISA also noted that 

“[t]he offerors’ pricing was driven by its specific hardware configuration and overall technical 

solution proposed to meet the requirements of the performance work statement.” AR at 17,379 

(DISA’s Source Selection Decision Document). And so, the administrative record reveals that 

DISA reasonably determined that WWT’s proposal did not reveal “unbalanced pricing” and that 

WWT’s price was reasonable. AR at 19,938-39. 

Lastly, ViON incorrectly argues that DISA failed to compare WWT’s price to the 

Independent Government Cost Estimate. Pl. Mem. at 28. This Court has held that an agency is 

bound to a particular price realism technique when “the agency commits itself to a particular 

methodology in a solicitation.” Afghan Am. Army Servs., 90 Fed. Cl. at 358. Here, the RFP 

requires that DISA evaluate WWT’s proposed price using one of the techniques set forth in FAR 

15.404 and also provides that the agency may reject the proposal after comparison of the 

proposed price with the Independent Government Cost Estimate.10 The administrative record 

shows that DISA reviewed the Independent Government Cost Estimate for the purpose of 

comparing this estimate to WWT’s total evaluated price. AR at 17,474. The administrative 

record further shows that DISA ultimately concluded that the Independent Government Cost 

Estimate was an inapt tool for analyzing the proposed price, because the estimate was developed 

using different methodologies than provided for in the RFP. Id. And so, the agency concluded 

 

10 The RFP provides that the “offeror’s cost/price proposal will be evaluated, using one or more 

of the techniques defined in FAR 15.404, in order to determine if it is reasonable and complete.” 

AR at 149. The RFP further provides that the “Government may reject any proposal that is 

evaluated to be unreasonable in terms of program commitments, contract terms and conditions, 

or unreasonably high or low in price when compared to Government estimates . . . .” AR at 140. 

Furthermore, because a comparison of the offeror’s cost/price with the Independent Government 

Cost Estimate is one of the techniques listed in FAR 15.404, a comparison of WWT’s price with 

the government cost estimate would satisfy both requirements of the RFP. AR at 149; 140. 
 23 

that “while [WWT’s] proposed prices are lower than the Government’s estimate, the offeror’s 

proposed prices are reasonable.” Id.11 

When a price comparison reveals that the government’s estimate has been based upon an 

alternate methodology, this Court has held that it is reasonable for the government to disregard 

the Independent Government Cost Estimate. Westech Int’l., 79 Fed. Cl. at 286. The 

administrative record shows that is the case here. AR at 17,474. And so, DISA did not act 

arbitrarily in concluding that the Independent Government Cost Estimate was not a useful tool 

for analyzing WWT’s proposed price in this case. Cohen Fin. Servs., Inc. v. United States, 112 

Fed. Cl. 153, 167 (2013) (“The proposals’ prices were based on different assumptions than the 

[Independent Government Cost Estimate], against which they were to be compared. . . . The 

Panel thus acted reasonably when it determined that its comparison of the proposals’ prices with 

the [Independent Government Cost Estimate] did not support a conclusion that any of the prices 

were unrealistic.”). 

While plaintiff’s burden for overcoming the deference afforded to an agency in 

conducting a price realism analysis is not insurmountable, a finding by the Court that the 

agency’s price realism analysis lacked a rational basis is generally reserved for instances where 

the agency made “irrational assumptions or crucial miscalculations.” FCN, Inc., 115 Fed. Cl. at 

376 (quoting Mil–Mar Century Corp., 111 Fed. Cl. at 541 (internal quotations omitted)). The 

administrative record here shows that DISA’s price realism analysis was reasonable. And so, 

ViON’s challenge of the agency’s price realism analysis must fail. Westech Int’l, Inc. v. United 

States, 79 Fed. Cl. 272, 286 (2007) (“In order to overturn the agency’s cost realism 

determination, plaintiff must establish that the [agency’s] decision lacked a rational basis.”). 

 

11 DISA’s final consensus report specifically addressed the requirements of FAR 15.404 stating 

that “[i]n accordance with FAR 15.404, reasonableness of the offeror's price was established 

based on adequate price competition.” AR at 17,472.
 24 

3. DISA Properly Determined That WWT’s Proposal Complies With 

The RFP 

ViON’s claim that WWT’s proposal does not comply with the terms of the RFP is 

similarly without merit. To the contrary, the administrative record shows that DISA properly 

found that WWT’s proposal complies with the material terms of the RFP. 

Under the FAR, agencies are bound by the terms of the solicitation in making contract 

awards. See FAR 15.305(a). Where a proposal fails to conform to a material term of the 

solicitation, the proposal is unacceptable and may not be the basis of an award. Centech Grp., 

554 F.3d at 1037-38; see also E.W. Bliss Co., 77 F.3d at 448; Metro. Van & Storage, Inc. v. 

United States, 92 Fed. Cl. 232, 260 (2010) (“[A]n agency's determination that a proposal is 

acceptable may be deemed arbitrary and capricious if the proposal did not provide what was 

called for in the solicitation.”). “A solicitation term is material where it has more than a 

negligible impact on the price, quantity, quality, or delivery of the subject of the bid.” 

Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed. Cl. 488, 505 (2009). And so, 

an agency’s contract award is arbitrary and capricious if the awarded proposal was 

nonconforming with the solicitation. See Metro. Van & Storage, 92 Fed. Cl. at 246-47. 

Here, ViON contends that WWT’s proposal did not comply with three terms of the RFP: 

namely, (1) the requirements involving delivery, billing, and ordering; (2) the requirement for 

technological advances in the products offered; and (3) the requirement that the ESS II contract 

is an indefinite-delivery/indefinite-quantity contract. For the reasons discussed below, ViON’s 

contentions are belied by the facts contained in the administrative record. 

a. WWT’s Proposal Complies With The RFP’s Delivery, Billing, 

And Ordering Requirements 

First, ViON incorrectly argues that WWT took exception to the RFP’s delivery, billing, 

and pricing terms. Pl. Mem. at 16-17. In particular, ViON argues that the statement in WWT’s 

proposal that orders will depart within 30 days, does not comply with the RFP’s requirement to 

deliver, install, and configure hardware within 30 days. Pl. Reply at 21; AR at 3281. In this 

regard, section 6.9.2 of the performance work statement requires that “[d]elivery, installation and 

make ready for use of equipment must occur within 30 calendar days of the acceptance of the 

order by the Contractor.” AR at 3281. WWT’s proposal provides in relevant part that the “call 
 25 

order process is to respond to DISA by next business day (NBD) with order validation” and 

further provides that “orders will depart the continental US within 30 days by commercial 

carrier.” AR at 16,616. A plain reading of this language shows that WWT’s proposal does not 

take exception to the 30-day delivery requirement in the RFP. Rather, the language affirms that 

shipments will occur within 30 days, as required by the RFP. AR at 16,616. And so, ViON fails 

to show that WWT’s proposal takes exception to the RFP’s delivery requirements. 

The administrative record also shows that WWT did not take exception to the RFP’s 

billing terms. The RFP requires that: 

The acceptance of equipment by the Government will start the billing cycle for 

this service. The contractor will work with DISA to develop an acceptance 

testing methodology to smoothly transition equipment into the DISA production 

environment. The official acceptance documentation will be provided by the 

Government after the contract award. 

AR at 3276 (Performance Work Statement at § 6.11.3). The relevant part of WWT’s proposal 

provides that: 

WWT agrees that acceptance by DISA will start the billing cycle, except when 

acceptance has been delayed for 30 days or more after delivery of equipment 

through no fault of WWT. In this case, billing shall commence on the 30th day 

after equipment delivery regardless of acceptance. 

AR at 16,616. ViON argues that this language allows WWT to bill before acceptance in 

violation of the RFP. But, the RFP expressly allows for an acceptance testing methodology to be 

developed after the award of the contract. AR at 3276.12 And so, the administrative record 

shows that WWT’s proposal also complies with the billing terms in the RFP. 

In addition, the administrative record makes clear that WWT’s proposal did not take 

exception to the RFP’s ordering requirements. Under section 6.11.1.4 of the performance work 

statement, “[t]he offeror has one business day to validate a call order for accuracy. Once the 

 

12 WWT’s proposal is similar to ViON’s proposal, which also provides that the parties would 

finalize the acceptance terms post-award. See AR at 17,053 (“Once DISA has issued a Call 

Order to ViON, if ViON is delayed in achieving the agreed-upon ‘Ready-for-Use’ standard by 

actions or inactions of DISA, ViON will submit its ‘Ready-for-Use’ billing notification for 

DISA’s acknowledgement even though final ‘Ready-for-Use’ may not have actually occurred 

due to delays beyond ViON's control.”). 
 26 

offeror validates a call order for accuracy, the hardware should be delivered within 30 days or 

less.” AR at 3276. As discussed above, WWT’s proposal states that its “call order process is to 

respond to DISA by next business day (NBD) with order validation” and the proposal further 

notes that “[w]ithin 5 business days we will provide an estimated delivery date, or the reason that 

the call order cannot be processed.” AR at 16,616. While ViON argues this language would 

allow WWT to reject orders after five days, in violation of the performance work statement, the 

text of WWT’s proposal does not indicate that the contractor will fail to validate orders by the 

next business day. Pl. Reply at 21-22; see AR at 16,616. Rather, the proposal simply indicates 

that WWT will contact DISA if an order cannot be processed. AR at 16,616. And so, again 

ViON fails to demonstrate WWT’s proposal takes exception to the ordering requirements in the 

RFP. 

Lastly, ViON also incorrectly argues that WWT’s inclusion of a “Minimum Storage TB” 

chart in its proposal imposes minimum order requirements on DISA, in violation of the RFP. Pl. 

Reply at 4. In this regard, the RFP incorporates FAR 52.216-19, which sets forth limits on 

minimum and maximum orders. AR at 90. In particular, the RFP provides that the agency is not 

obligated to purchase supplies or services that are less than $100. Id. A plain reading of the 

chart included in WWT’s proposal makes clear that this chart does not require DISA to place 

minimum orders. AR at 16,616. Rather, the chart simply provides the minimum storage 

amounts that “should be considered.” Id. And so, ViON has fails to show that WWT’s proposal 

takes exception to the minimum order requirements in the RFP. 

b. WWT’s Proposal Complies With the Requirement For 

Technological Advances 

The administrative record also clearly shows that WWT’s proposal complies with the 

technological advances requirement in the RFP. Specifically, section 5.9 of the performance 

work statement provides that: 

The intent of this contract is to cover both present and future requirements for 

storage solutions. As technology performance and capabilities improve, the class 

of storage will support any advances in improvement to performance or 

capabilities at the awarded SLIN price. 

AR at 3265. Section 6.11.6.2.1 of the performance work statement further provides that: 
 27 

When an Original Equipment Manufacturer (OEM) makes generally available for 

sale a newer technology listed in Performance Requirements sections 6.1 – 6.2, 

the offeror will make this technology available to the government on this contract 

within 6 months. When technology advances, the Government will make the final 

determination on when the SLIN configurations will be updated. 

AR at 3277-78. 

In this regard, WWT’s proposal states that “[s]hould [WWT’s current proposed] products 

reach [Original Equipment Manufacturer] designated end-of-life, be replaced by newer 

technology, use higher capacity/same form factor HDDs, or become unavailable for whatever 

reason, WWT will provide functionally equivalent products at or below the proposed price in the 

base period year for the initial proposed make/model product.” AR at 16,617 (emphasis added). 

ViON maintains that the reference to “functionally equivalent products” in WWT’s proposal 

contradicts the RFP’s requirement to “support any advances in improvement to performance or 

capabilities.” Pl. Reply at 22-23. Furthermore, ViON contends that WWT’s offer of an 

unspecified brand of “functionally equivalent products” means that WWT will not necessarily 

provide new technology from an original equipment manufacturer, as required by the RFP. Id. 

ViON’s contentions are without merit. 

WWT’s proposal clearly states that the contractor is committed to providing new 

technology. See, e.g., AR at 13,729 (“Our service modeling methodology is continuously 

updated through WWT’s Advanced Technology Center (ATC) lab procedures. We evaluate and 

test [Original Equipment Manufacturer] products and develop and design configuration and 

implementation tasks that support efficient, low-risk deployments.”); AR at 13,798 (“WWT is 

committed to introducing new technology to DISA. Our new storage technology test strategy is 

to, quarterly[,] provide DISA a briefing of the upcoming [Original Equipment Manufacturer] 

release schedules.”). Furthermore, in evaluating WWT’s proposal DISA determined that 

WWT’s proposal: 

[M]eets the requirement of Subfactor 2: Service Delivery (2.2) by providing 

quarterly briefings to DISA regarding [Original Equipment Manufacturer] updates 

and information on new technologies. The proposed solution to address new 

technology, future changes in requirements and technology refresh, as well as 

periodic operational proof of performance testing meets all requirements detailed 

in [performance work statement] Section 6.9.6. The offeror has proposed using 

either DISA facilities or their Advanced Technology Center (ATC) for the 

purpose of testing new technology. 
 28 

AR at 17,450. Because ViON fails to cite to any portion of WWT’s proposal that provides that 

WWT will utilize equipment that has not been provided by an original equipment manufacturer, 

ViON fails to show that WWT’s proposal takes exception to the technological advances 

requirement in the RFP. 

c. WWT’s Proposal Also Complies With The RFP’s Requirement 

That The Contract Will Be An Indefinite-Delivery/IndefiniteQuantity Contract 

Finally, ViON erroneously argues that WWT’s proposal violates the indefinitedelivery/indefinite-quantity term in the RFP. Pl. Mem. at 18-19. The relevant portion of 

WWT’s proposal provides that: 

It is understood that DISA’s confirmation herein of the essential need for the 

equipment/software and DISA’s commitment to pursue the continued 

appropriation of funds is not to exceed one year duration. However, DISA shall 

not be obligated to continue performance during the full 72 month period if, 

pursuant to FAR 52.232-19, funding is not appropriated and is therefore 

unavailable. DISA intends to use its very best efforts to annually obtain funds to 

support the service and at this time does not have any knowledge of any event that 

would prevent the continued need for such service throughout the term. 

AR at 16,618. ViON contends that the proposal’s statement that “DISA intends to use its very 

best efforts to annually obtain funds to support the service” improperly restricts the agency’s 

termination rights under FAR 49.502(b)(1), in violation of the RFP. Pl. Mem. at 33-34. In this 

regard, ViON argues that this Court has held that similar language can restrict the government’s 

termination and option-exercise rights. Pl. Mem. at 33-34 (citing Northrop Grumman 

Computing Sys. v. United States, 93 Fed. Cl. 144, 149 (2010) (holding that use of “shall use 

its . . . best efforts” language can restrict agency’s ability to terminate or refuse to exercise 

options); Mun. Leasing Corp. v. United States, 1 Cl. Ct. 771, 774-75 (1983)). 

But, a plain reading of the language upon which ViON relies shows that WWT’s 

proposal does not restrict the government’s right to terminate or refuse to extend the ESS II 

contract. In fact, ViON does not identify any language in WWT’s proposal that requires that 

DISA take specific action regarding securing funding or extending performance under the 

contract. AR at 16,618. And so, ViON has not demonstrated that WWT’s proposal fails to 
 29 

conform to the indefinite-delivery/indefinite-quantity terms of the RFP. See Centech Grp., 554 

F.3d at 1038.13

4. ViON Has Not Demonstrated The Existence Of An Organizational 

Conflict Of Interest 

ViON’s argument that DISA failed to properly evaluate a potential organizational 

conflict of interest regarding WWT’s proposal is equally flawed. Pl. Mem. at 19. In its motion, 

ViON contends that an organizational conflict of interest arose because the Evaluator Group has 

a strong financial relationship with HP–WWT’s primary subcontractor for the ESS II contract. 

Pl. Mem. at 19 (citing AR at 18,664; 18,764-84). Specifically, ViON alleges that Randy Kerns–

an employee and cofounder of the Evaluator Group–conducted a training at DISA that “may very 

well have” resulted in bias. Pl. Mem. at 35. Furthermore, ViON states that Mr. Kerns 

recommended HP products on the Evaluator Group’s website. Pl. Mem. at 19-20 (citing AR at 

18,786-89). And so, ViON contends that the Evaluator Group’s work with HP may have 

affected the contract award process, by influencing DISA’s expectations. Pl. Mem. at 35; see

AR at 18,759. 

With respect to organizational conflicts of interest, the United States Court of Appeals for 

the Federal Circuit has held that the FAR only obligates an agency to conduct an organizational 

conflict of interest analysis for significant conflicts, and that contracting officers are given broad 

discretion in determining whether the potential conflict of interest is significant. PAI Corp. v. 

United States, 614 F.3d 1347, 1352 (Fed. Cir. 2010) (holding that agencies are only required to 

document “significant potential conflicts”); FAR 9.504(a)(2). In this regard, “[a] significant 

potential conflict is one which provides the bidding party a substantial and unfair competitive 

advantage during the procurement process on information or data not necessarily available to 

other bidders.” Turner Constr. Co. v. United States, 645 F.3d 1377, 1386 (Fed. Cir. 2011) 

(quoting PAI Corp., 614 F.3d at 1352). Moreover, under the FAR, an organizational conflict of 

interest is present when, “because of other activities or relationships with other persons, a person 

 

13 In its cross-motion, the government argues that the RFP terms that ViON alleges have been 

violated here are not material. Def. Rep. at 13. Because the Court finds that WWT’s proposal 

complies with all of the RFP terms identified by ViON, the Court need not reach the question of 

materiality. 
 30 

is unable or potentially unable to render impartial assistance or advice to the Government, or the 

person’s objectivity in performing the contract work is or might be otherwise impaired, or a 

person has an unfair competitive advantage.” FAR 2.101 (2015). And so, the FAR obligates the 

contracting officer to “analyze planned acquisitions in order to . . . [a]void, neutralize, or mitigate 

significant potential conflicts before contract award.” FAR 9.504(a)(2) (2015) (emphasis added). 

ViON’s allegation of a potential organizational conflict of interest is not substantiated by 

the administrative record. In fact, the administrative record shows that the alleged connection 

between the Evaluator Group and the ESS II contract is tenuous at best. ViON provides no 

evidence to show that Mr. Kerns or the Evaluator Group had any impact on the procurement 

process for the ESS II contract. To the contrary, in an affidavit proffered by Scott Whitten, 

DISA’s technical evaluation lead for the procurement, Mr. Whitten states that “DISA did not use 

Randy Kerns or Evaluator Group as a consultant for any consultation or training of DISA 

personnel in support of the ESS II procurement process.” AR at 18,174. 

Furthermore, ViON provides no “hard facts” to indicate that the Evaluator Group 

influenced the ESS II contract procurement. PAI Corp., 614 F.3d at 1352 (“[A] protester must 

identify ‘hard facts’; a mere inference or suspicion of an actual or apparent conflict is not 

enough.”); FAR 9.504(a)(2). Rather, ViON simply concludes that “[g]iven the Evaluator 

Group’s IT storage expertise and consulting contract with DISA, it was certainly in a position to 

affect the procurement’s ground rules and/or evaluations.” Pl. Reply at 26. Such a claim is mere 

speculation and does not rise to the level of “creat[ing] an advantage to one bidder over the 

others.” PAI Corp., 614 F.3d at 1351. And so, ViON has not shown that any “significant 

potential conflicts” existed in connection with the evaluation of WWT’s proposal. PAI Corp., 

614 F.3d at 1352; FAR 9.504(a)(2). 

5. ViON Is Not Entitled To Injunctive Relief 

Finally, ViON has not demonstrated that it is entitled to the injunctive relief. To evaluate 

a right to injunctive relief, the Court must consider (1) whether plaintiff has succeeded on the 

merits of the case; (2) whether plaintiff will suffer irreparable harm if the Court withholds 

injunctive relief; (3) whether the balance of hardships to the respective parties favors the grant of 

injunctive relief; and (4) whether it is in the public interest to grant injunctive relief. PGBA, 
 31 

LLC, 389 F.3d at 1228-29; see also Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. 

Cir. 1983). 

First, as established above, ViON has failed to succeed on the merits of this protest. See

PGBA, LLC, 389 F.3d at 1228-29. ViON has not demonstrated that DISA acted arbitrarily and 

capriciously in conducting its evaluation of WWT’s proposed technical solution. Nor has ViON 

shown that DISA failed to conduct a price realism analysis. ViON also fails to show that 

WWT’s proposal took exception to any material terms of the RFP. Finally, ViON has not shown 

that DISA failed to investigate a potential significant organizational conflict of interest. 

Second, ViON has failed to demonstrate irreparable harm. This Court has long 

recognized that meritless allegations that a bidding process has been conducted unfairly are “not 

sufficient to demonstrate an irreparable injury,” because, if they were, “any bid protest would 

involve an irreparable injury.” OAO Corp. v. United States, 49 Fed. Cl. 478, 480 (2001). 

Because none of ViON’s challenges to DISA’s award decision are supported by the 

administrative record, ViON has not demonstrated an irreparable injury in this case. Id. 

Third, ViON has not demonstrated that the balance of hardship favors injunctive relief. 

In this case, the government would be harmed by a permanent injunction, because DISA would 

be forced to retain ViON as the incumbent contractor at a significant increase in cost. AR at 

17,386. Additionally, WWT would be significantly harmed, because it would not be able to 

perform on the ESS II contract as planned. And so, the balance harms weigh against granting 

injunctive relief in this case. Akal Sec., Inc. v. United States, 87 Fed. Cl. 311, 320 (2009) (The 

Court must balance the harm plaintiff would suffer without injunctive relief against the harm that 

injunctive relief would inflict on defendant and on defendant-intervenor.). 

Finally, ViON has not shown that it is in the public interest to grant injunctive relief in 

this case. “Clearly, the public interest in honest, open, and fair competition in the procurement 

process is compromised whenever an agency abuses its discretion in evaluating a contractor's 

bid.” PGBA, LLC, 57 Fed. Cl. at 663 (2003). But, here, DISA’s award decision was reasonable 

and in accordance with the RFP and applicable law. The administrative record also shows that 

there is a rational basis for the agency’s conclusion that awarding the ESS II contract to WWT 

constitutes the best value to the government. AR at 17,287; 17,387. The public has “a long-term 

interest in ensuring that the new contract represents the best overall value to the government.” 
 32 

Reilly's Wholesale Produce v. United States, 73 Fed. Cl. 705, 716 (2006). And so, the public 

interests supports the denial of ViON’s request for a permanent injunction. 

V. CONCLUSION 

In sum, the extensive administrative record in this case shows that DISA acted reasonably 

and in accordance with applicable law in awarding the ESS II contract to WWT. DISA carefully 

evaluated WWT’s proposal during several rounds of technical evaluations and testing to ensure 

compliance with the RFP. The agency also appropriately evaluated WWT’s proposed price and 

ensured that WWT’s proposal meet the requirements of the RFP. 

ViON has not shown by a preponderance of the evidence that DISA’s actions were either 

without a rational basis, or in violation of applicable law. Indeed, while ViON may disagree 

with DISA’s findings regarding the merits of WWT’s proposal, there is no basis for the Court to 

disturb the agency’s reasonable award decision. 

And so, for the foregoing reasons:

1. Plaintiff’s motion for judgment on the administrative record is DENIED;

2. Defendant’s motion for judgment on the administrative record is GRANTED; 

3. Defendant-intervenor’s motion for judgment on the administrative record is 

GRANTED; and

4. Plaintiff’s motion to supplement the administrative record is DENIED. 

Judgment shall be entered accordingly. 

Each party shall bear their own costs. 

Some of the information contained in this Memorandum Opinion and Order may be 

considered protected information subject to the protective order entered in this matter on April 9, 

2015. This Memorandum Opinion and Order shall therefore be filed under seal. The parties 

shall review the Memorandum Opinion and Order to determine whether, in their view, any 

information should be redacted in accordance with the terms of the protective order prior to 

publication. 
 33 

The Court hereby ORDERS the parties to FILE, by Tuesday, August 11, 2015, a joint 

status report identifying the information, if any, that they contend should be redacted, together 

with an explanation of the basis for each proposed redaction. 

IT IS SO ORDERED.

 

 s/ Lydia Kay Griggsby 

LYDIA KAY GRIGGSBY 

Judge