# I n 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. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 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, fo r defendant-intervenor.

* This Memorandum Opinion and Order was orig inally filed under seal July 21, 2015 (docket entry 50), pursuant to the prot ective order entered in this action on April 9, 2015 (docket entry 10). The parties were given an opportunity to ad vise the Court of their views with respect to what information, if any, should be redacted under the terms of the protectiv e order. The parties filed a joint status report on A ugust 10, 2015 (docket entry 52) stati ng that they agreed there is no need for redactions. Accordingly, the Cour t 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 Wi de Technology, Inc. (“WWT”). Plaintiff, ViON Corporation (“ViON”), challenges the agency’s award decision on four grounds: First, ViON alleges that DISA did not appr opriately 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 improperl y took exception to several material terms of the solicitation. Lastly, ViON contends that DISA failed to investigate a potential organizational conflic t of interest involving WWT. The matter is before the Court on the pa rties’ cross-motions for judgment on the administrative record, pursuant to Rule 52.1 of th e Rules of the United States Court of Federal Claims (“RCFC”). For the reasons discussed be low, the administrative record shows that the agency’s award decision was reasonable and in ac cordance 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 judg ment on the administrative record; and (3) GRANTS defendant-intervenor’s motion for judgment on the administrative record. Because supplementation of the extens ive administrative reco rd 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 BACKGROUND 1

A. Factual Background The government has filed an extensive administra tive record in this case and the relevant facts are not in dispute. On December 19, 2014, DISA awarded soli citation 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 (Com pl. at __”); plaintiff’s motion for judgment on the administrative record (“Pl. Mot. at __”); plai ntiff’s memorandum in support of its motion for3 0015, for the Enterprise Storages Services II (“ ESS II”) contract, to WWT. AR at 17; 346-87. ViON is the incumbent contractor under a predec essor contract, known as the Enterprise Storage Services I contract. Compl. at 5. In this bid protest action, ViON alleges th at DISA failed to properly evaluate WWT’s proposal for the ESS II contract and, as a resu lt, 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 th e agency’s award decision; direct DISA to reevaluate the proposals submitted by WWT and Vi ON; 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 contra ct is a single, fixed-price, indefinitedelivery/indefinite-quantity contract, for four year s 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 th e 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 cos t/price. AR at 141. The technical/management factor is comprised of three e qually-weighted subfactor s: technical solution; service delivery; and proof of concept. 2 Id.
For the technical solution subfactor, th e RFP requires that each proposal support “heterogeneous data migration” a nd “3-way replication of data”. AR at 3265-66. For the service delivery subfactor, the RFP requires that the ag ency “evaluate the soundness of the [o]fferor’s approach for ensuring the proposed solution meet s 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 th e proposals DISA assign each subfactor a “technical/management ratings” of either good, a cceptable, marginal or unacceptable and a “technical/management risk ratings” of low, moderate , or high. AR at 141-44.4 [of the RFP].” AR at 143. In addition, the RFP re quires that DISA evaluate “[t]he flexibility of the [o]fferor’s approach to address overal l call order management, new technology, future changes in requirements and t echnology refresh; periodic ope rational proof of performance testing; cost savings over the pe riod of the contract and other fe atures advantageous to meeting the Government’s storage service requirements.” Id. For the proof of concept subfactor, the R FP requires that “[i]f a Proof of Concept Demonstration is required ALL Offerors in comp etitive 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 te st all five (5) supported environments referenced in Task 3, 6.3.1 of the [performan ce 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 da ys 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 lo w in price when compared to the Government estimates, such that the proposal is deemed to reflect an inherent lack of co mpetence or failure to comprehend the complexity and risks of the pr ogram.” AR at 140. The RFP further provides that DISA may use “one or more of the technique s 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 initia l proposal for the ESS II contract. AR at 2047. The proposal states that storage services would be pr ovided 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 occas ions. During the initial evaluation, DISA assigned WWT’s proposal a technical/managem ent rating of “unacceptable,” because the5 proposal did not meet the requirements in the R FP for storage capabilities, redundant array of independent disks, data re-duplication and requi red 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 ev aluation, DISA issued 30 evaluati on notices to WWT regarding the proposal. AR at 3055-137. These notices specif ically requested information about how the proposal would satisfy the techni cal requirements of the RFP, a nd particularly, how the proposed HP 3PAR 7400 storage solution would meet the requi rement for enterprise class storage. AR at
3097.

b. Second Evaluation After reviewing DISA’s evaluation notic es, 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 te chnical 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 con cerns, DISA issued another round of evaluation notices to WWT. AR at 6700-6759.

c. Third Evaluation Once again, WWT revised its proposal to addr ess 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 an d 3-way replication of data. AR at 16,497. Specifically, WWT stated that its solution exc eeded 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 be cause it “is capable of 4-way replication.” Id

. The agency conducted proof of concept tes ting 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. Becau se DISA found that the cost would be unreasonably high, the agency did not test data migr ation during proof of concept testing. AR at 18,355.6 After proof of concept testing, the agency i ssued another round of evaluation notices to
WWT. AR at 9161-79. In re sponse to DISA’s evaluation no tices, 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/managemen t 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% availabi lity requirement detailed in [the performance work statement] Section 6.5.1 can be met. AR at 17,441. With regards to the service delive ry subfactor, DISA found that WWT’s proposal “met all the stated serv ice 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 eval uation subfactor, the agency found that WWT successfully completed all 25 pr oofs of concept tests. AR at 17,452-58. The agency also assigned the proposal a “substantia l confidence” rating for the past performance evaluation factor under the RFP. AR at 17,458. Lastly, with respect to the cost/price evaluation factor, DI SA 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 no ted 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 me thodology for evaluation in the RFP precluded a7 comparison between WWT’s price and the Indepe ndent 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 author ity 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 overa ll technical solution proposed to meet the requirements of the performance work statement.” AR at 17,379. Ba sed upon these findings, the agency determined that WWT’s proposal represented the best va lue 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, fo r the first time, an alleged potential organizational conflict of interest involving WW T and another DISA cont ractor–the Evaluator Group. AR at 17,556-605. Specifically, ViON alle ges 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 se rvices 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 tr ends and technology at DISA. AR at 18,757; 18,175.8 Mr. Kearns and the Evaluator Group had no i nvolvement in the evaluation of proposals for the ESS II contract. AR at 18,174. Duri ng 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 Defenda nt-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 su pplement the administ rative record with the expert declaration of Mr. Claus Mi kkelsen (“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 administ rative record, which also included oppositions to plaintiff’s motion to supplem ent 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 defenda nt and defendant-intervenor’s cross-motions. See generally Pl. Reply. On June 12, 2015, defendant and defendant-intervenor each filed a9 reply brief in support of their motions fo r judgment on the administrative record. See generally Def. Reply; Def.-Intervenor Reply. On June 17, 2015, plaintiff filed a motion to pa rtially strike defendant’s reply in support of its motion for judgment on the ad ministrative record or, in the al ternative, 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 th e motion to file a sur-reply. See generally Order Granting in Part and Denying in Part Pl. Mot. to Strike; Pl. Su r-reply. The Court held oral argument on the parties’ cross motions for judgment on the admi nistrative 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 C ourt of Federal Claims jurisdiction over bid protests brought by “an in terested party objecting to a solicita tion by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procur ement or a proposed procurement.” 28 U.S.C. § 1491(b)(1) (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 Admi nistrative Procedure Act). And so, under the Administrative Procedure Act standard, an awar d may be set aside if “(1) the procurement official’s decision lacked a rati onal basis; or (2) the procuremen t 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 a nd reasonable explanation of its exercise of discretion, and the disappointed bidder bears a “heavy burden” of showing that the award decision had no rational basi s. 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).10 In reviewing an agency’s procurement deci sion, 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 s hould 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 viol ation of applicable procur ement 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 re levant 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 im portant aspect of the pr oblem [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, therefor e, 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. St ate 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 j udicial review should be the administrative record already in existence.”) . And so, unlike a summary judg ment 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, 24211 (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 jurisdicti on, the Court “may award any relief [it] considers proper, including declaratory and injunc tive 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 Cour t looks to (1) whether plaintiff will succeed on the merits; (2) whether plaintiff will suffer irrepa rable harm in the absence of injunctive relief; (3) whether the balance of hardships to the pa rties favors granting inj unctive 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 s hould only be supplemented “if the existing record is insufficient to permit meaningful review consiste nt 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 alre ady in existence, not some new record made initially in the reviewing c ourt.” 564 F.3d at 1379 (quoting Camp v. Pitts , 411 U.S. 138, 142 (1973)). This focus is maintained in order to pr event 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 pe rmitted to correct mistakes and fill gaps, but is not permitted when the documents proffered are unnecessary for an eff ective review of the government’s procurement decision. L-3 Commc'ns EOTech , 87 Fed. Cl. at 672. And so, this12 Court has precluded supplementation of the administ rative record with decl arations 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 violat ion 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 pr ice, 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 pr oposal. Pl. Mem. at 30-34. Lastly, ViON argues that DISA failed to conduct a pr oper investigation into a possi ble 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 reas ons discussed below, the Court agrees.

A. Supplementation Of The Ad ministrative 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. Si nce 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 admi nistrative record in this case with the declaration of its expe rt, 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 te stimony is necessary for effective judicial review by this Court. ” Pl. Mot. to Supp. at 1.13 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 th e Mikkelsen Declaration “constitutes a piece of advocacy that reaches the legal conclusions ViON ha s 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 reco rd would be appropriate. This Court permits parties to supplement the administ rative record if such supplementa tion is meaningful to judicial review, but prohibits supplementati on when it seeks to address the le gal issues before the Court. L-3 Commc'ns EOTech , 87 Fed. Cl. at 672 (denying supplementa tion of the administrative record because plaintiff’s proffered declaration “directl y addresses the dispute before the court–whether the government’s decision to eliminate [the protes ter] 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 th at 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 suppl ementation with a declaration and affidavit because they “proffer facts that substitu te plaintiff’s opinion for the [agency's] technical determinations”). Here, the Mikkelsen Declaration analyzes th e technical merits of WWT’s proposal and concludes that the proposal does no t meet the requirements of the RFP. Mikkelsen Decl. at ¶ 4 (“[M]y review and analysis of the AR demons trates that WWT’s proposal does not meet the RFP’s express ‘Enterprise storag e’ requirements.”); Mikkelsen D ecl. 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 De cl. at ¶¶ 20-38 (arguing that WWT’s 3PAR Solution does not meet the pe rformance work statement’s requirements for “3 way replication of data” and “heterogeneous data migration”); Mikke lsen Decl. at ¶¶ 39-44 (arguing that DISA failed to consider deficiencies in WWT ’s proposal). The Mikkelsen Declaration does not correct any mi stakes 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 de ficient. In addition, ViON acknow ledges that this declaration14 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 Fe deral Circuit’s clear directive in Axiom

− that this Court should not supplement the administrative reco rd unless the omission of the information “precludes effective j udicial review.” Axiom Res. Mgmt. , 564 F.3d at 1380. While the Mikkelsen Declaration does provide a useful summary of ViON’s le gal position in this case, it is not needed for the Court to eff ectively review this bid protest matter. And so, ViON’s motion to supplement the administrative record is denied.

B. The Record Shows That DISA’s Awar d 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 reasonabl e and in accordance with the requirements of the RFP and applicable law. This Court reviews the ag ency’s award decision under the arbitrary and capricious standard and affords DI SA 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 admi nistrative record to determine “whether the contracting agency provided a c oherent 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 conte nds that the agency failed to: (1) properly evaluate WWT’s proposed technical solution; (2) conduct a price realism analys is of WWT’s proposal; (3) find that WWT’s proposal took exception to several ma terial terms of the RFP; and (4) conduct an investigation into a potential organizational c onflict 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 also15 shows that the agency’s evaluation of WWT’s proposal complied with the requirements of the RFP, the Federal Acquisition Regu lation, and applicable law. A nd so, for the reasons discussed below, the Court must reject ViON’s chal lenge to the agency’s award decision.

1. DISA Properly Evaluated WWT’s Proposed Technical Solution

The administrative record shows that DI SA conducted an appropriate technical evaluation of WWT’s proposal. ViON challenge s 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 migration 3 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 perfo rm heterogeneous data migration. Id . For the reasons discussed below, ViON’s arguments are not s upported 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 DI SA carefully evaluated WWT’s technical solution and that the agency reasonably conclu ded WWT’s proposal complie d with the technical requirements of the RFP after WWT revised its pr oposal. 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 1 0000 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 th at the term is not in the performance work statement. Def. Mot. at 28.

4 ViON refers to this as “three datacenter repli cation” (“3DC”). Pl. Mem. at 6. But, the government does not accept this terminology, noting th at 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, DI SA 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 notic es that specifically relate d 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 re quirements of the RFP. AR at 9094-112. Following the second evaluation, DISA conducted proof of concept tes ting, in order for WWT “to demonstrate [that its] proposed technical/management solution” me t the RFP’s requirements. AR at 9096. WWT successfully completed all 25 proof of concept te sts, 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 ev aluation 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 tim e 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 soluti on 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 te chnical solution “exceeds” the requirement in section 6.1.1.1 of the performance work statemen t to “[s]upport 3-way re plication 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 re quirement for “heterogeneous data migration” because “[t]he AutoLUN feature is used to transp arently migrate data between different tiers of

5 ViON alleges that this assertion by WWT a pplies only to its XP7 solution, not its 3PAR solution, because HP makes a similar statement a bout 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 re quirements of the RFP. AR at 14,563-55.17 storage non-disruptively, whethe r native to the array or exte rnally connected virtualized heterogeneous storage.” AR at 16,497. After reviewing WWT’s final proposal, DISA determined th at WWT’s final proposal met the “enterprise class capabilit[y] requirements in [performance work statem ent section] 6.1.1.1.” AR at 17,441. The agency’s final consensus repo rt 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 techni cal solution, and a three-hour te lephone 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 th e 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 re quirements for Enterprise class storage.” AR at 17,358 (DISA’s Source Selection Document).

Given the extensive and well-documented re view of WWT’s proposal, the examination of the administrative record in this case rev eals 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 th e 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 plai n 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 f ound 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 whet her WWT’s 3PAR solution individually met the requirements in section 6.1.1.1 for enterprise class storage. Id . The final cons ensus 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 existi ng 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 environm ents 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 pr oof of concept test plan is also untimely. This Court has long recognized that an offeror wishing to challenge th e 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 prot ester who knew the agen cy’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 solic itation on June 26, 2014, and that da ta migration testing is not mentioned in that plan. AR at 9069-89. To th e 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 perf ormance 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 Se rver, 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 Syst em 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 a bout the scope of the proof of concept testing, because ViON could have received a different test plan than WWT or othe r 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 th e government notes in its briefs, conducting different proof of concept tests for different offe rors 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 establ ished that the agen cy must treat all offerors equally and consisten tly apply evaluation factors.”).19 220778, 1986 WL 63012, at *1 (Comp. Gen. Jan. 3, 1986) (f inding that a “[p]rotest against [a] known requirement to be imposed in a benchmar k test is untimely when not filed with the agency until after the date of the benchmark”).

2. DISA Properly Evaluated WWT’s Pr oposed Price And Conducted A Price Realism Analysis ViON’s attempt to set aside DISA’s award d ecision 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 R FP; (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 th at the RFP requires a price realism analysis. Id . at 25-28. The Federal Acquisition Regulatio n (“FAR”) requires that, before awarding a fixed-priced contract, an agency must determine whether the price o ffered 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 th e one awarded pursuant to the So licitation 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 ha s held that when the RFP provides that “unrealistically low offers ‘may be considered un acceptable 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 evaluate d to determine if prices were unrealistically high or low, we see no basis for any conclusion ot her 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 price20 realism analysis when the RFP st ated that the “Government may re ject any proposal evaluated to be . . . unreasonably high or low in cost wh en 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 previous ly 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 c onducting 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 fixe d-price with economic price adjustment basis, comparison of the proposed prices will usually satisfy the requirement to perform a price analysis, and a cost anal ysis need not be performed. . . . The contracting officer shall document the cost or price evaluation. FAR 15.305(a)(1) (2015). And so, the Court ne ed only look to whether the agency acted reasonably and in a manner consiste nt 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 ex tent” of that assessment are “m atters 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 methodol ogy in a solicitation . . . the nature and extent of a price realism analysis, as well as an assessm ent 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 broa d discretion in conduc ting 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. Spec ifically, DISA issued 26 evaluation notices to WWT regarding price, which DISA noted WWT re sponded 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 discussi ons, 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 analys is because the agency had provided a “cogent explanation” concerning a low price). DISA also found th at WWT’s proposed price was “complete,” “calculated in accordance with Attach ment J-3 Cost Model of the RFP,” and that “all solicitation requirements were priced for al l contract periods (bas e, option, and extension periods), figures were accurate and correctly ca lculated, and prices we re 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 establ ished based on adequate price competition.” Id. And so, the agency reasonably concluded that WWT “addressed all Government uncertainties and its cost/price proposal is cons istent 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 rea lism 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 ev aluation notices to verify the accuracy of pricing offered by an offeror in a fixed-price cont ract 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 wh ich provides a best-value solution to the Government.” AR at 17,387. In making the cont ract award to WWT, DI SA also noted that “[t]he offerors’ pricing was driven by its spec ific hardware configura tion and overall technical solution proposed to meet the requirements of the performance work statement.” AR at 17,379 (DISA’s Source Selection Decision Document). A nd 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 pri ce 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 Independe nt Government Cost Estimate. 10 The administrative record shows that DISA reviewed the Independent Go vernment 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 c oncluded 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 evalua ted, 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 pri ce when compared to Government estimates . . . .” AR at 140. Furthermore, because a comparison of the offero r’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 bot h 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 gove rnment’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 th e 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 we re 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 th at 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 analys is 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 assumpti ons 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 pr ice realism analysis was reasonable. And so, ViON’s challenge of the agency’s pr ice 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 lack ed a rational basis.”).

11 DISA’s final consensus repor t specifically addr essed the requirements of FAR 15.404 stating that “[i]n accordance with FAR 15.404, reasonablen ess 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 s hows that DISA properly found that WWT’s proposal complies with the material terms of the RFP. Under the FAR, agencies are bound by the term s 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 un acceptable 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 Ct r., 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 th at the ESS II contract is an indefinite-delivery/indefinite-quantity c ontract. For the reasons discussed below, ViON’s contentions are belied by the facts c ontained in the administrative record.

a. WWT’s Proposal Complies With The RFP’s Delivery, Billing, And Ordering Requirements First, ViON incorrectly argues that WWT t ook exception to the RFP’s delivery, billing, and pricing terms. Pl. Mem. at 16-17. In particular, ViON argue s that the statement in WWT’s proposal that orders will depart within 30 days, does not comp ly with the RFP’s requirement to deliver, install, and configure ha rdware within 30 days. Pl. Reply at 21; AR at 3281. In this regard, section 6.9.2 of the performance work stat ement requires that “[d]elivery, installation and make ready for use of equipment must occur w ithin 30 calendar days of the acceptance of the order by the Contractor.” AR at 3281. WWT’s propos al provides in relevant part that the “call25 order process is to respond to DISA by next business day (NBD) with order validation” and further provides that “orders will depart th e continental US within 30 days by commercial carrier.” AR at 16,616. A plain reading of th is 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 require d by the RFP. AR at 16,616. And so, ViON fails to show that WWT’s proposal takes excep tion 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 Govern ment will start the billing cycle for this service. The contractor will wo rk with DISA to develop an acceptance testing methodology to smoothly transiti on equipment into the DISA production environment. The official acceptanc e 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 st art 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 a llows 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 complie s 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 pr ovides 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 achievi ng the agreed-upon ‘Ready-for-Use’ standard by actions or inactions of DISA, ViON will subm it its ‘Ready-for-Use’ billing notification for DISA’s acknowledgement even though final ‘Rea dy-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 propos al states that its “call order process is to respond to DISA by next busines s day (NBD) with order valida tion” and the proposal further notes that “[w]ithin 5 business days we will provid e an estimated delivery date, or the reason that the call order cannot be proce ssed.” 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 pr oposal 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 requir ements on DISA, in violation of the RFP. Pl. Reply at 4. In this regard, the RFP incor porates FAR 52.216-19, whic h sets forth limits on minimum and maximum orders. AR at 90. In particular, the RFP pr ovides that the agency is not obligated to purchase supplies or se rvices that are less than $100. Id . A plain reading of the chart included in WWT’s proposal makes clear th at 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 or der requirements in the RFP.

b. WWT’s Proposal Complies With the Requirement For Technological Advances The administrative record also clearly s hows 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 cove r both present and future requirements for storage solutions. As technology perform ance and capabilities improve, the class of storage will support any advances in improvement to performance or capabilities at the aw arded SLIN price. AR at 3265. Section 6.11.6.2.1 of the performan ce work statement further provides that:27 When an Original Equipment Manufacturer (OEM) makes generally available for sale a newer technology listed in Perf ormance Requirements sections 6.1 – 6.2, the offeror will make this technology avai lable to the government on this contract within 6 months. When technology advan ces, 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] design ated 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 refere nce 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 conte nds that WWT’s offer of an unspecified brand of “functionally equivalent products” means that WWT will not necessarily provide new technology from an original equipm ent manufacturer, as required by the RFP. Id

. ViON’s contentions are without merit. WWT’s proposal clearly states that the c ontractor is committed to providing new technology. See, e.g. , AR at 13,729 (“Our service mode ling methodology is continuously updated through WWT’s Advanced Technology Center (ATC) lab procedures. We evaluate and test [Original Equipment Manufacturer] products and develop and desi gn configuration and implementation tasks that support efficient, lo w-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 th e upcoming [Original Equipment Manufacturer] release schedules.”). Furthermore, in eval uating 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 requiremen ts 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 Adva nced Technology Center (ATC) for the purpose of testing new technology.28 AR at 17,450. Because ViON fails to cite to an y 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 take s exception to the tec hnological advances requirement in the RFP.

c. WWT’s Proposal Also Complie s 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 comm itment to pursue the continued appropriation of funds is not to exceed one year duration. However, DISA shall not be obligated to continue performa nce 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 annua lly obtain funds to support the service and at this time does not have any knowledge of any event that would prevent the continued need fo r such service throughout the term. AR at 16,618. ViON contends that the proposal’s st atement 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 re strict the government’s termination and option-exercise ri ghts. Pl. Mem. at 33-34 (citing Northrop Grumman Computing Sys. v. United States , 93 Fed. Cl. 144, 149 (2010) (holdi ng 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 a ny language in WWT’s proposal that requires that DISA take specific action re garding securing funding or extending performance under the contract. AR at 16,618. And so, ViON has not demonstrated that WWT ’s proposal fails to29 conform to the indefinite-delivery/inde finite-quantity terms of the RFP. See Centech Grp. , 554 F.3d at 1038. 13

4. ViON Has Not Demonstrated The Ex istence 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 w ith HP–WWT’s primary subcontract or 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 Gro up–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 influe ncing DISA’s expectati ons. Pl. Mem. at 35; see AR at 18,759. With respect to organizational conflicts of in terest, the United States Court of Appeals for the Federal Circuit has held that the FAR only ob ligates an agency to conduct an organizational conflict of interest analysis for significant conf licts, and that contracti ng 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 c onflicts”); FAR 9.504(a)(2). In this regard, “[a] significant potential conflict is one which provides the bi dding party a substantial and unfair competitive advantage during the procurement process on inform ation 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 relationshi ps 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 fi nds 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 impartia l 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 admini strative record shows that the alleged connection between the Evaluator Group and the ESS II cont ract is tenuous at best. ViON provides no evidence to show that Mr. Kerns or the Eval uator Group had any impact on the procurement process for the ESS II contract. To the contra ry, in an affidavit proffered by Scott Whitten, DISA’s technical evaluation lead for the procurem ent, 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 proc urement 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 susp icion of an actual or ap parent conflict is not enough.”); FAR 9.504(a)(2). Rather, ViON simply concludes that “[g] iven the Evaluator Group’s IT storage expertise and co nsulting contract with DISA, it was certainly in a position to affect the procurement’s ground rules and/or evaluati ons.” Pl. Reply at 26. Such a claim is mere speculation and does not rise to the level of “creat[ing] an adva ntage 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 eval uation 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) whethe r 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 resp ective 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 demonstrat ed that DISA acted arbitrarily and capriciously in conducting its ev aluation of WWT’s proposed tec hnical solution. Nor has ViON shown that DISA failed to conduc t a price realism analysis. Vi ON also fails to show that WWT’s proposal took exception to a ny material terms of the RFP. Finally, ViON has not shown that DISA failed to investigate a potential signif icant organizational conf lict of interest.
Second, ViON has failed to demonstrate i rreparable 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 bala nce of hardship favor s 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 contr actor at a significant in crease 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. A nd 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 plaint iff would suffer without injunctive relief against the harm that injunctive relief would inflict on defe ndant and on defe ndant-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 abus es its discretion in ev aluating 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 administ rative record also shows that there is a rational basis for the agency’s conc lusion 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 ove rall 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 de nial of ViON’s request fo r 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 se veral rounds of technical evalua tions and testing to ensure compliance with the RFP. The agency also ap propriately evaluated WW T’s proposed price and ensured that WWT’s proposal meet the requirements of the RFP. ViON has not shown by a preponderance of the ev idence 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 r easonable 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 moti on 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 th is Memorandum Opinion and Order may be considered protected information subject to the protective order en tered in this matter on April 9, 2015. This Memorandum Opinion and Order shall th erefore 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 wi th 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 basi s for each proposed redaction.

IT IS SO ORDERED

.

s/ Lydia Kay Griggsby LYDIA KAY GRIGGSBY Judge