# In th e United States Court of Federal Cl aims

No. 17-868C ( F iled Under Seal: J uly

31, 2017) (Reissued for Publication: October 2, 2017) *

************************************* TORRES ADVANCED ENTERPRI SE * SOL UTI ONS, L L C, *

* Plaintiff, *

*

v. * Postaward B id Protest; Motion for

* Discovery ; Motion to Supplement the THE UNI TED STATES, * Administrative Record; Motion for a

* Preliminary

I njunction; Past Performance; Defendant, * B ias; B ad F aith; Disparate Treatment

* and *

* G4S J OI NT VENTURE, *

* Defendant-I

ntervenor. *

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

Georg e R. Calhoun, W ashing ton, DC, for plaintiff.

Tany a B . Koenig , United States Department of J ustice, W a shing ton, DC, for defendant.

Gerald H. W erfel, McL ean, VA, for defendant-intervenor.

OP INION AND ORDER

SWEENEY , J udg e

I n this postaward bid protest, plaintiff Torres Advanced Enterprise Solutions, L L C (“Torres”) contends that the United States Department of State (“State Department”) improperly awarded a contract for local g uard services at a United States embassy to defendant-intervenor G4S J oint Venture (“G4S”). Specifically , Torres alleg es several irreg u larities with the State Department’s evaluation of the offerors’ proposals, including bias, bad faith, and disparate

* This reissued decision incorporates the redactions described in the court’s contemporaneously

filed Opinion and Order. Redactions are indicated with a bracketed ellipsis (“[ . . .] ” ).treatment. B efore the court are two motions: Torres’s motion to supplement the administrative

record and for ex

pedited discovery

(“motion to supplement”), and Torres’s motion for a preliminary

injunction. As ex plained in more detail below, the court denies both motions.

I. BACK G ROUND

A . The Incum bent Contract

I n November 2011, the State Department awarded Torres contract SAQMMA12C0008 for the provision of local g uard services at the United States Embassy in Asunción, Paraguay

. 1 AR 1, 12. The contract was for one base y ear, with four one-y

ear option periods. I d. at 4-5. The State Department ex ercised each option, ex tending the contract to F e bruary 28, 2017. I d. at 148, 154, 158, 269. On J anuary 31, 2017, the State Department ex tended the contract for an additional six months, until Aug ust 30, 2017. I d . at 313; accord id. at 312.

The State Department described the purpose of the work to be performed by Torres in the contract’s statement of work:

The primary

mission of the local g uard service is to provide protection for United States personnel, facilities and equipment from damag e or loss due to violent attack and theft. The local g uards act as an early

warningsig nal to the American Embassy

and the [ reg ional security officer]

. The local guard force will also carry out specific actions as described in the General Orders and individual Post Orders . . . . The local g uard services shall prevent unauthoriz ed access; protect life; maintain order; deter criminal attacks ag ainst employ ees[ ,] dependents and property and terrorist acts ag ainst all U.S. assets[ ;] and prevent damag e to Government property

.

I d. at 12; see also id. at 123 (ex plaining that “General Orders provide directions and instructions of g eneral application to the Contractor personnel” while “Post Orders provide detailed instructions to persons assig ned to a specific g uard post”). The specific tasks for which Torres was responsible included office building entry control, official residence entry control, vehicular entry control, inspection and surveillance, perimeter patrols, mobile patrols, maintenance of

1 The court derives most of the facts in the backg round section from the administrative record (“AR”) and the applicable version of the F ederal Acquisition Reg ulation (“F AR”). In addition, the court describes the contents of a March 31, 2017 Contractor Performance Assessment Report (“CPAR”) that was orig inally included in the administrative record filed on J une 30, 2017, but was removed when defendant filed a corrected administrative record on J uly 17, 2017. A “modified” version of this CPAR, dated J une 21, 2017, is included in the corrected administrative record. See AR 314-22. However, the “modified” version of the CPAR does not contain Torres’s April 13, 2017 comments, and those comments are relevant to Torres’s contentions in this protest.

-2-operational records (including post log s, incident reports, and daily time-and-attendance records), provision and assig nment of g u ards and relief g uards for each post, on-site supervision of employ e es, ensuringthat the required number of security checks are completed during each shift using a Guard Electronic Monitoring Sy stem (“GEMS”), furnishing communications equipment, surveillance detection, submission of a conting ency plan, and employ ee training . I d . at 14-22, 41-43.

Torres’s performance of the contract was to be monitored by the reg ional security officer–a B ureau of Diplomatic Security special ag ent–who also served as the contracting officer’s representative. I d . at 12; see also id. at 31 (reflecting that the desig nated contracting officer’s representative was the assistant reg ional security

officer). Torres’s project manag er, who was to manag e Torres’s workforce and act as Torres’s liaison with the embassy
, was required to implement the directives of the contracting officer and the contracting officer’s representative. I d. at 19, 37. Torres was also responsible for providing a g uard force commander to lead the g u ard force, and one or more individuals to supervise the g uard force. I d . at 19, 37- 38.

I n addition, the contract contained a clause addressing the procedures for handling contract performance issues (“clause E.1”). I d. at 26-27. In relevant part, it provided:

W hen the Contractor fails to provide the services at the performance standards required by

this contract, the Government shall assess a neg ative incentive ex pressed as a deduction for each instance of unacceptable performance and/or non-performance . . . . Unless the deficiencies were not reasonably discoverable by

the Government, the Government will notify the Contractor and assess deductions as soon as practicable after the unacceptable performance and/or non-performance is discovered by the Government.

I f the Contractor believes that mitig ating circumstances precluded the Contractor from meeting

the terms and conditions of the contract as it relates to performance or administration of the contract, a request for waiver or reduction of the amount of the deductions can be requested. . . .

The Contractor’s request for relief should provide a detailed ex planation as to why the circumstances surrounding the contract noncompliance occurred and why this action could not have been prevented. . . .

The Contractor shall be required to submit a Quality Assessment and Compliance Report (QACR) with each invoice submission. . . .

The QACR shall serve as the Contractor’s certification that all services included on the invoice were rendered in accordance with the contractual terms and conditions. I n the event that the Contractor failed to deliver all the required

-3-services as well as meet the requirements, an ex planation shall be g iven in the QACR as to why the noncompliance action(s) occurred and what action will be taken duringthe nex t month to preclude the same and/or similar noncompliance actions.

The Contractor shall also address why their Quality Control Plan (QCP) failed to prevent and/or mitig ate the noncompliance acts and what action has been taken or will be taken to modify the QCP according ly . F urthermore, the Contractor shall state whether any part of its Manag ement Plan was revised as part of its efforts to preclude the same and/or similar noncompliance actions in the future.

W here the Contractor’s review of work performed in any month reveals that the work was not performed in accordance with the terms and conditions of the contract, . . . the Contractor shall not bill the U.S. Government for these services unless the Contractor identifies the nonconforming services.

The Contractor shall reduce the amount of each invoice submitted for pay ment by the amount of work not performed in accordance with the terms and conditions of the contract . . . unless the Contractor plans to submit a request for waiver or reduction of the amount of the deductions.

I d. at 26-27. The contract also incorporated by reference three of the FAR’s inspection-related provisions: F AR 52.246-3, I nspection of Supplies–Cost-Reimbursement (May 2001); F AR 52.246-4, I nspection of Services–F ix ed-Price (Aug ust 1996); and F AR 52.246-6, I nspection–Time-and-Material and L abor-Hour (May 2001). I d. at 26. All three provisions (1) require the contractor to “provide and maintain an inspection sy stem acceptable to the Government” that covers the contracted-for supplies and services, (2) require the contractor to maintain “[ c] omplete records of all inspection work performed” and make such records “available to the Government during contract performance and for as long afterwards as the contract requires,” and (3) permit “[ t] he Government . . . the rig ht to inspect and test” the contracted-for supplies and services. F AR 52.246-3(b)-(c); F AR 52.246-4(b)-(c); F AR 52.246- 6(b)-(c).

B. P erf orm ance Under the Incum bent Contract

During the course of the contract, the State Department prepared reg ular CPARs reg arding Torres’s performance. The first CPAR, sig ned by the reg ional security

officer and dated J une 6, 2013, was for the base y ear of the contract–F ebruary 29, 2012, to F ebruary

28, 2013. AR 151-53. The second CPAR, sig ned by the reg ional security

officer and dated April 26, 2014, was for the first option y ear–March 1, 2013, to F ebruary 28, 2014. I d . at 155-57. The third CPAR, sig ned by the prior contracting officer and dated April 13, 2016, was for the second option y ear–March 1, 2014, to F ebruary 28, 2015. I d. at 271-74. The fourth CPAR, which is

-4-unsig n ed and undated, was for the third option y ear–March 1, 2015, to F ebruary 28, 2016. I d. at 275-78. The fifth CPAR, sig ned by the current contracting

officer, Yenny

Guillory
, 2 and dated December 29, 2016, was for the first nine months of the fourth option y ear–F ebruary

29, 2016, to November 23, 2016. I d. at 279-82.

All five of these CPARs reflect that the State Department was satisfied with Torres’s performance–the assessing officials consistently

rated Torres as “Very Good” in the areas being rated, such as “Quality ,” “Schedule,” and “Manag e ment.” I d. at 151-53, 155-57, 271-82; see also id. at 281 (reflecting Ms. Guillory ’ s assessment, in the CPAR dated December 29, 2016, that “[ t] he interaction between Torres and the Government has been ex cellent”). The assessing officials did note that minor issues arose during contract performance, but indicated that Torres was quick to resolve them. I d. at 152-53, 156, 273, 276-77, 280-81; see also id. at 280-81 (reflecting Ms. Guillory ’s comments, in the CPAR dated December 29, 2016, (1) that althoug h the g uard force commander did not meet the lang u ag e proficiency

requirement, he was doing an “ex cellent job,” and (2) that “Torres receives a deduct[ ion] letter from the [ contracting officer’s representative] approx imately once every

1-2 months,” but “takes swift and firm action upon receipt” of those letters). I ndeed, the record reflects that Torres received only five deduction letters and one notice of major nonconformance during the time periods covered by these CPARs, as follows:

• A F ebruary 28, 2013 deduction letter noting that a g uard was found sleeping at his post for one hour on F ebruary 21, 2013, id. at 323;

• A March 21, 2014 deduction letter noting that a post was unmanned for twelve hours on November 17, 2013, id. at 325, to which Torres responded with a letter, dated March 27, 2014, indicating that it counseled the g u ard force commander and the shift supervisor to ensure that all posts are properly manned, id. at 327;

• A May 6, 2016 deduction letter noting that on April 5, 2016, g u ards at four posts were not provided the required breaks and one post was unmanned for one hour, id. at 329-30, to which Torres responded with a letter, dated May 11, 2016, indicating that it counseled the guard force commander and the shift supervisor to ensure that all posts are properly manned and sufficient relief g uards are available to provide the required breaks, id. at 331-32;

2 Ms. Guillory apparently became the contracting

officer sometime between J uly 20, 2016, and October 12, 2016. Compare AR 338-39 (reflecting that Kelli Parker was the contracting

officer on J uly 20, 2016), with id. at 346 (reflecting that Ms. Guillory was the contracting

officer on October 12, 2016).

-5-• A May 20, 2016 deduction letter noting that a post was unmanned for twelve hours on May

9, 2016, and that three posts were unmanned for twelve hours on May 15, 2016, id. at 333;

• A J uly

20, 2016 notice of major nonconformance reg arding g uard use of personal cell phones while on duty , id. at 338-39, issued because two g uards were observed “looking at the screens of their smart phones instead of being alert on duty ” on J uly

12, 2016, id. at 335-36, to which Torres responded with a letter, dated J uly

25, 2016, indicating that the two g uards were suspended (one for three day

s and the other for five days) and counseled that personal cell phone use was a violation of General and Post Orders, that shift supervisors were instructed to look for personal cell phones during post inspections, and that g uards were being required to leave their personal cell phones at a desig nated location when reporting for duty , id. at 340; accord id. at 335; and

• An October 5, 2016 deduction letter noting that a post was unmanned for twelve hours on October 2, 2016, because the g uard at the post was using his personal cell phone while on duty , id. at 342, to which Torres responded with a letter, dated October 7, 2016, contending that the acknowledg ed violation was more properly

classified as a failure to follow General and Post Orders rather than as an unmanned post, and advising that (1) the guard was removed from the contract, (2) it had established a personal cell phone policy in which g uards were required to check in their personal cell phones prior to reporting to their posts and could only access their phones for emerg encies or during lunch breaks, (3) it would remind the g uards of its policy

during musters and refresher training , (4) it would remove g uards from the contract for violation of its policy , and (5) it would screen the backpacks, purses, and bag s of all local g uard force personnel reporting for duty , id. at 344-45; see also id. at 346 (indicating that Ms. Guillory ag reed with Torres’s response).

See also id. at 327, 331, 340 (reflecting that when Torres responded to the State Department’s correspondence, it reg

u larly stated that it took the violations noted by the State Department “very seriously ”). Ultimately , the assessing officials all reported that based on what they knew of Torres’s performance, they would either still award Torres the contract, id. at 153, 157, or recommend that Torres be awarded similar contracts in the future, id. at 274, 277, 281; see also id. at 313 (reflecting
, in a contract modification sig ned by Ms. Guillory

on J a nuary 31, 2017, that the State Department ex tended Torres’s contract performance by six months).

Torres continued to receive deduction letters after November 23, 2016. I ndeed, it received three additional deduction letters in 2016, as follows:

-6-• A November 30, 2016 deduction letter noting that a g uard was found sleeping at his post for thirty

minutes on November 22, 2016, id. at 347, to which Torres responded with a letter, dated December 6, 2016, indicating that (1) the g uard had been suspended for three day s and counseled that he had violated General and Post Orders, (2) all local g uard force personnel would receive refresher training

on their duties, (3) the g

uard force commander would assess shift hours, and (4) shift supervisors would ensure during their inspections that g uards remain alert at their posts, id. at 349;

• A December 13, 2016 deduction letter noting that a g uard at one post did not have a radio on December 9, 2016, that the radio being used by the g uard at that same post on December 12, 2016, had a dead battery , and that many

of Torres’s radios were in poor condition, id. at 351, to which Torres responded with a letter, dated December 19, 2016, indicating that it (1) counseled the g uard force commander and the shift supervisors of their responsibility to ensure that all g

uards possess the required equipment and that such equipment is in proper workingcondition, (2) counseled the project manag er, guard force commander, and shift supervisors of their responsibility to inspect the equipment and turn in nonfunctioningequipment for repair, and (3) would remind g u ards of the proper handling of radios at every muster and during a refresher training , id. at 353-54; and

• A December 22, 2016 deduction letter noting that a g uard did not properly maintain the log at his post on December 12, 2016, and that a post was left unmanned for one hour on December 21, 2016, id. at 356, to which Torres responded with a letter, dated December 29, 2016, indicating that it had counseled the g

uard force commander, shift supervisors, and senior g u ards to ensure that all posts were properly manned, and that it had reminded g u a rds during musters of their responsibility to maintain the log s at their assig ned posts, id. at 358-59.

See also id. at 349 (reflecting Torres’s statement that it took the violation noted by the State Department in the November 30, 2016 deduction letter “very seriously ”).

The State Department continued to note deficiencies in Torres’s performance in 2017. The first such deficiency

related to an incident on F ebruary 12, 2017, in which “an unknown individual walked up to the embassy and threw two bottles filled with liquid over the wall in front of the CAC 1 window.” I d . at 361. J onathan W elch, the contracting officer’s representative, “reviewed camera footag e of the incident and the g uards’ responses” and discovered:

E-4 (CAC 1 - Pedestrian Access Control): L eading up to the . . . event, this g uard had head down in a personal cell phone while sitting at the CAC 1 desk

-7-and did not notice the individual walk from across the street, walk up the stairs,

place his belong ing s on the bench, walk up to the window in front of CAC 1 and throw two objects over the Embassy wall. The guard eventually noticed movement and stood up, just in time to see the individual throwing objects. This g uard then made ey

e contact with E-8 and shrug g ed shoulders. Seconds after the event, the guard searched for money and g ave the money

to the E-8 g uard to pick up a bagof food/water at the street corner of the compound. Throug hout the rest of the 12 hour shift, E-4 improperly used the g overnment provided computer to surf the internet and watch movies, while continuously utiliz ing a personal cell phone and ig nor[ ing ] assig ned duties. At the end of the shift, E-4 screened some incoming g u ards’ bag s, while letting other bag s pass without inspection. There is no way to determine how many

cell phones made it onto the compound Sunday nig ht.

RT-1 (Senior Relief Guard): Throug hout the 12 hour shift, this senior g uard sat nex t to E4, utiliz ed a personal cell phone, and watched the movies E4 selected on the g overnment computer. Occasionally this g uard left, presumably to relieve another g

u ard, and later returned to perform the same activities already mentioned above.

E-8 (CAC 1 Vehicle Screening ): [ T] his g uard was on the ex terior of CAC 1 vehicle entrance and saw the individual walk toward the CAC 1 pedestrian entrance window, throw two objects over the wall, pick up his bag from the bench, and slowly

walk away

from the area. The g

uard slowly

walked in the direction of the individual, made no attempt to intercept, identify , or resist the criminal activity . After the criminal activity , the g u ard made no attempt to intercept or identify the individual. The g uard stood in place and watched the suspect slowly

depart the area, cross the street, and disappear from the camera’s view. These actions are in violation of the g eneral g uard orders and the overall mission of the local g uard force service. The g u ard at E-8 then walked to the CAC 1 pedestrian door, took money from the g uard at E-4, retrieved a bag of food/water from the street corner, and returned it to the g uard at E-4.

I d. Mr. W elch reached several conclusions:

The E4 g uard position . . . cannot be trusted to effectively screen backpacks, purses, and bag s of all [ local g uard force] personnel reporting for duty , when this g uard is in fact usinga personal cell phone throug hout the shift. This check must be performed by

the Supervisor. The cell phones must not be stored in an accessible area, such as under the desk of CAC 1. F or emerg encies, guards should g ive the phone number of the [ local g uard force] radio dispatch as the emerg ency number to call, with the Supervisor number as a secondary to all family

members, school administrators, etc.

-8-The major non-conformance issue of personal cell phones on duty has not been addressed adequately since the first notification six months ag o.
This deficiency e ndang ers performance of the contract and the safety and security of the Mission.

I d. at 362. Thus, in a deduction letter dated March 1, 2017, Mr. W elch directed Torres to (1) develop “[ a] comprehensive plan to control cell phone usag e on duty ”; (2) schedule training on General Orders, defensive tactics, and the use of batons and handcuffs; and (3) propose corrective action “that will actually stop this activity

from happening

in the future.” I d.

Torres’s Director of Operations and Senior Prog r am Manag er, Richard Orth, responded to the deduction letter on March 7, 2017, acknowledg ing the violations, id. at 363, and describing Torres’s proposed corrective action:

F ollowing the incidents of F ebruary 12, 2017, Mr. Victor Seg ovia, Torres Project Manag e r[ ,] conducted remedial training [ as directed]

. . . . . . . Torres has removed the g uards that were caug

ht using their cell phones while on duty

from the contract. Torres has put a policy in place that all g uards will check in their personal cell phones prior to reporting to their posts and pick them up when they complete their duties. These cell phones will now be stored in the Guard F orce Commander’s office or secured in a locker at other sites such as USAI D and Peace Corps.

Torres will allow the g

uards to use their cell phones for emerg encies when relieved from their post and during their assig ned lunch break. At no time will a g uard have his/her personal cell phone at post. Torres will remind all g uards of this policy

at every shift chang e and during

refresher training

and will remove g uards from the contract for non-compliance. I n addition, the Shift Supervisor will oversee the screening of all backpacks, purses, and bag s of all [ local g uard force] personnel reporting for duty

. Torres has g iven all [ local g uard force] personnel the phone number of the [ local g uard force] radio dispatch as the emerg ency number to call, with the Supervisor number as a secondary number to provide to all family members, school administrators, and others as needed.

I d. at 364. That same day
, Mr. W elch advised Mr. Orth via electronic-mail that he did not consider Torres’s plan to be comprehensive. I d. at 366. He acknowledg e d that “some of the required actions in the deduction letter have been met,” but noted:

-9-This is the third corrective action plan for cell phones since J uly 2016. Obviously , the previous two plans were unsuccessful.

This third corrective action plan must be comprehensive and well thoug ht
out.

F or ex ample, y our letter states the g u ards will have access to their phones during lunch breaks and emerg encies. W ho will be checking in and checking

out the cell phones to guards, openingand closing the door to the [ g uard force commander’s] office through out the day and nig ht? Supervisors and the [ g uard force commander] are the only g uards able to access the [ g uard force commander’s] office. Supervisors and the [ g u ard force commander] cannot be on phone issuance duty

.

F or [ off-site locations,] what is the comprehensive plan to prevent cell phone use on duty ? Stating the phones will be stored in a locker is a start, but not comprehensive.

How will claims of theft or tampering of the phones be avoided?

How will the phones be identified to each g u ard?

I ’m sure there are other questions the supervisors and g uards will have. A one sentence policy

will result in confusion and potentially g rievances by

g uards in the near future.

I d. at 366-37. Mr. W elch therefore advised Mr. Orth that he ex pected Torres to submit “a full written policy ” and “a comprehensive corrective action plan that ex plains how this checking

in/out of phones will actually work.” I d. at 367.

Mr. Orth acknowledg ed Mr. W elch’s request via electronic-mail, id. at 366, and in a March 31, 2017 letter, described Torres’s revised corrective action:

a. F ollowing the incidents of F ebruary 12, 2017, [ Mr. Seg o via] conducted remedial training

[ as directed]

. . . . b. . . . . Torres has removed the Guards that were caug ht using their cell phones while on duty

from the contract.

c. Torres has put a policy in place that all Guards will check in their personal cell phones prior to reporting

to their Posts. Guards will not have access to their personal phones during

the duration of their duties and will only be able [ to] pick them up when they

complete their duties.

- 10-d. The Shift Supervisor will write the Guard’s name on a tag and will attach it to

the cell phone. The Shift Supervisor will g ive the Guard a copy of the cell phone tag which will include the cell phone claim number. These cell phones are to be placed in a secure box

during shifts. This box will be kept in the Guard F orce Commander’s office.

e. I n the case of an urg ent situation or emerg ency the Guard will advise the Supervisor of the problem. Then the Supervisor will allow the Guard access to a Government F urnished Property /Contractor F urnished Property . . . telephone/cell phone.

f. Additionally , the Shift Supervisor will oversee the screening of all backpacks, purses, and bag s of all [ local g uard force] personnel reporting for duty at the Main Embassy Compound to ensure no cell phones g o with the Guard to his/her Post.

g . F or other locations oversight of this policy will fall under the Senior Guard at Post . . . .

h. At no time should a Guard have his/her personal cell phone at post. Torres Supervisors will remind all g uards of this policy at every shift chang e and during Annual Refresher Training

. i. Torres will remove g

uards from the contract for non-compliance[ .]

I d. at 369-70.

W h ile Torres was resolving the issues revealed by

the F e bruary

12, 2017 bottle-throwing incident, another incident occurred that revealed additional deficiencies in Torres’s contract performance. See g enerally id. at 371-73. As a result of an investig ation of a residential burg lary by Mr. W elch at the end of F ebruary 2017, Ms. Guillory

discovered that Torres’s “mobile patrol g uards [ were] not performing their contractual duties.” I d. at 371. Specifically , the initial investig ation revealed

a more than 12 hour g ap of a residential check on this residence from 1942 on Sunday nig ht until 0808 Monday morning
, at which time the mobile patrol notified the occupant of an open g arag e door. The burg lary occurred sometime in that 12 hour g ap, during which there should have been at least 3 more checks during the nig ht shift. Correct performance may have at most detected and deterred the burg lary

and theft of personal property , and at least narrowed the window of investig ation.

I d. F urther investig a tion, entailing the “review of mobile patrol log s, GEMS log s, and [ Global Positioning Sy stem (“GPS”)] trackingdata for each mobile patrol” for the four-day period

- 11-surrounding the burg lary , “revealed falsified log s by drivers calling

in locations to the security dispatcher where the drivers were not actually located, GEMS reports reflecting unsatisfactory rounds including z e ro checks on some residences in a 12 hour shift, and GPS tracking data supporting the unsatisfactory GEMS reports.” I d. This review also revealed that “two day shift drivers left their patrol area for hours during each shift,” spending

“hours at residential neig hborhoods, businesses, and other locations in the cities of L uque and San L orenz o, both approx imately

10 kilometers outside their patrol areas, and, not coincidentally – the homes of record of the respective drivers.” I d

. Ms. Guillory

concluded that “[ s] upervision of the mobile patrol [ w as] nonex istent,” ex plaining : “GEMS reports do not match log s called in by the mobile patrols, but the discrepancies have g one undetected (or at the least unreported to the [ contracting officer’s representative] ) by the Supervisors, Guard F orce Commander, and Prog r am Manag e r.” I d. at 371-72. She further concluded that these performance deficiencies constituted violations of the contract and Post Orders. I d. at 372-73. According ly , in a March 3, 2017 letter, Ms. Guillory advised Torres that the State Department considered the violations to be “a condition that imposes an unacceptable performance risk [ that would] be documented as such” in a CPAR, and directed Torres to submit a corrective action plan within ten business day s. I d. at 373.

Mr. Orth responded to Ms. Guillory ’s letter on March 16, 2017. I d. at 374-76. He acknowledg ed the violations, id. at 374, and described Torres’s plan for corrective action:

[ Mr. Seg ovia] counseled the [ g uard force commander] and the Shift Supervisors reminding them to be more proactive in their inspections of the Mobile Patrols. The [ g uard force commander] conducted a meeting with all of the drivers and reminded them to adhere to the Standards of Conduct while performing

their duties.

The two drivers who left their assig ned posts without proper authoriz a tion were counseled, removed from Mobile Patrol duties and reassig ned to static g u ard posts.

The [ g uard force commander] now closely monitors and evaluates GEMS reports. [ Mr. Seg ovia] has proposed to the [ contracting officer’s representative] adding another monitor where the Radio Dispatcher is located. This will enable the Radio Dispatcher to more effectively supervise the rounds of each Mobile Patrol and verify

locations using the GPS tracking sy stem.

On March 3, 2017[ , Mr. Orth] met with the [ Mr. Seg ovia] , [ the g uard force commander] and Supervisors and briefed them on the importance of proactively conducting Quality Control I nspections and ensuring g uard compliance of their General Orders and Post Orders.

On March 4, 2017[ , Mr. Orth] c onducted a ride along inspection with Mobile Patrols and Supervisors. . . .

- 12-A refresher training will be scheduled for all Mobile Patrol drivers for next month (April 2017) to enhance and improve the performance of the [ Mobile Patrol] posts.

I d. at 375. Ms. Guillory

was not entirely

satisfied with the described corrective action. I d. at 377-78. I n a March 17, 2017 letter, she directed Torres to remove the two g uard/drivers who left their assig n ed posts from the contract due to their “failure to comply with the standards of conduct”–they

“misuse[ d] paid labor hours and resources provided to perform duties ex clusive of the scope of the contract.” I d. at 377. She further directed Torres to remove another employ ee from the contract for his conduct related to the falsification of the mobile patrol log s. I d.; see also id. at 379 (indicating that this employ ee was another g uard/driver). F inally , she directed Torres to submit a revised corrective action plan within ten business day s. I d. at 378. I n a March 31, 2017 letter, Mr. Orth advised Ms. Guillory that Torres had removed the three g u ards/drivers from the contract and that its employ ees were “closely monitor[ ing ] the Mobile Patrols throug h daily reviews of the Vehicle Tracking Sy stem . . . and the GEMS reports.” I d. at 379-80.

That same day

–March 31, 2017–Ms. Guillory prepared a six th CPAR for Torres’s performance of the contract during the final three months of the fourth option y ear–November 24, 2016, to F ebruary

28, 2017. Orig inal AR 279-311, J une 30, 2017. I n this CPAR, Ms. Guillory described the recent issues with Torres’s performance, including the issues with the mobile patrols, and described some additional concerns. I d. at 280-85. F or ex ample, with respect to “Manag ement,” she wrote:

Torres[ ’s] manag e ment was assessed at three levels: the corporate manag ement support, local prog r am support office, and the [ local g uard force] supervisors. Overall manag e ment has suffered due to lack of quality control inspections[
, ] lack of involvement by

the corporate [ project manag e ment office,] and the local [ project manag e r] serving as the sole instructor for the g uards for both basic training and refresher training . The [ project manag er] has [ been] eng ag ed in support of other Torres contracts in country , instead of the [ local g uard force]

. The [ local g uard force] supervisors g enerally employ sound manag ement tactics and have done a g ood job . . . . However, supervision of mobile patrols is not satisfactory . . . . [ L ocal g uard force] supervisors are ineffective in managing the drivers, and their lack of supervision allowed the mobile patrol to create unsafe conditions for embassy

personnel . . . . Despite evidence of insufficient checks documented in GEMS reports, supervisors continued sending the GEMS reports to the Government, without reviewing the data for correct compliance, putting the burden on the Government to identify their shortfalls.

I d. at 281. Additionally , with respect to “Training ,” she wrote:

All new g uards should receive 80 hours of orientation and initial training ; however, starting

J anuary 10, 2017 the Prog ram [ sic] Manag er put on the basic

- 13-course that lasted less than 40 hours without informing the Government of the course schedule or requesting a reduced time requirement[ ,] and the quality of the training was not up to the contract requirements. After further inspection by the [ contracting

officer’s representative] , some required courses were left out of the training . At [ the contracting officer’s representative’s] direction, the [ project manag e r] added more day s and required training courses to meet [ contract] requirements. The [ project manag er] was the instructor of the basic training course, which took him away from performing

any other manag ement duties for the duration of the course. . . . Other Torres contracts took precedence over the [ local g uard force] contract during the J anuary basic training and F ebruary refresher training , which took place F ebruary 28, 2017. The basic training was moved from the main training facility to a small office (without [ contracting officer’s representative] notification or approval) with little to no space for practical ex ercises, and the refresher training lacked log istical resources (a red man suit) due to Torres’[ s] other contracts taking precedence for facilities and equipment.

I d. at 282. I n

conjunction with her comments, Ms. Guillory downg raded Torres’s rating s for “Quality ” and “Manag ement” from “Very Good” to “Unsatisfactory .” I d. at 280; see also id. at 280 (reflecting

that Ms. Guillory

increased Torres’s rating for “Schedule” from “Satisfactory ” to “Very Good”), 280-85 (reflecting that Ms. Guillory

offered many

positive comments reg arding various aspects of Torres’s contract performance). She concluded the CPAR by remarking

that the State Department lacked confidence that the identified issues could be resolved, and ultimately

concluded that g iven what she knew of Torres’s performance, she would not recommend that Torres be awarded similar contracts in the future. I d. at 285.

Mr. Orth, on Torres’s behalf, responded to this latest CPAR on April 13, 2017, reiterating many of the comments and ex planations that he had provided in prior correspondence. See id. at 285-311. Additionally , responding to Ms. Guillory ’s manag ement-related comments, he wrote:

Torres’s Quality

Control I nspections by

Senior Corporate personnel are value added to the contract and not required by the contract. And even thoug h not required, the Government statement that there has been a lack of inspections or involvement by

senior manag ement is untrue. Torres [ Chief Ex ecutive Officer (“CEO”)] J e rry

Torres has conducted at least 50 Quality Control I n spections within the last 18 months. This includes Mobile Patrols, Marine Residence, Peace Corps Training site, USAI D, and Peace Corps Administration site. Torres Reg ional Administrative Manag er Ivana Tuset has conducted Quality Control I nspections of the Project Manag ement Office during the current Period of Performance. The [ project manag er] also conducted Quality Control I nspections on 24 November 2016, 19 December 2016, 14 F ebruary 2017 and 28 F ebruary 2017 during the current Period of Performance. The Director of

- 14-Operations/Senior Prog r am Manag er conducted his semi-annual Quality Control I nspection of the Parag

uay [ local g uard force] 4 and 8 March 2017.

. . . The current contract . . . does not require the Project Manag er to be dedicated ex c lusively

to the contract. Therefore, basing an Unacceptable rating on something that is not required by the Contract is inappropriate.

The [ p roject manag er] provides oversig ht of all [ local g uard force] training . He conducted specific classes within B asic Guard Courses with very small class siz e (six people) 10-23 J anuary 2017. . . . The [ project manag e r] normally does not serve as the Primary Torres I nstructor, however, on occasion he serves as the Primary

I nstructor as needed. Additionally
, [ h] e supports Torres’s other instructors as needed.

I d. at 289-90; see also id. at 292 (disputingMs. Guillory ’s comment that Torres’s other contracts took priority

over the contract for the United States Embassy in Asunción, Paraguay

). F urther, with respect to mobile patrols, Mr. Orth provided:

Similar incidents have occurred on a sporadic basis in previous y e ars and Torres consistently

has fired the personnel responsible. Previous CPAR[ s] d id not cite Mobile Patrol problems, but instead noted that, “Any time Post had an issue with g uard performance, Torres has responded quickly to remedy whatever problem there may be.” Torres also has fired the three Guard/Drivers involved on 21 March 2017.

The sing le Mobile Patrol incident cited in the evaluation is not a sy stemic issue with Torres. To the ex tent it is an issue, it is with the quality of the local labor force available to serve as g uards. G4S had similar issues previously with Mobile Patrols during its contract. Under the previous G4S contract, the [ local g uard force] had issues with Guard/Drivers that were far worse than Torres has

ex p erienced. Guard/Drivers and policemen were g etting caug ht sleeping inside the vehicles during

duty hours. 3 Residences were not checked as per Post Orders. G4S did not replace Mobile Patrol vehicles as required by the contract when [ they ] reached their max imum number of kilometers allowed. G4S only had one relief g u ard over the life of its previous contract. Torres’s manag ement has improved sig nificantly

on this performance and has had to fire far fewer g uard/drivers than the previous contractor according to Torres’s [ project manag e r,] who served as G4S’s [ project manag er]

.

3 “The Mobile Patrol is a two-man team consisting of a Mobile Patrolman and a Parag uay a

n National Police officer or Supervisor . . . .” AR 107.

- 15-I d. at 293 (footnote added); see also id. at 305 (“Mobile Patrol deficiencies are common

worldwide by

Security Companies performing

L ocal Guard F orce Services for U.S. Missions. The ratingprovided is inconsistent with prior evaluation practices and disproportionately punitive of Torres. Torres identified an issue with local personnel and took swift corrective action to fire the drivers involved.”). F inally , Mr. Orth addressed Ms. Guillory ’s training -related
comments:

W ith respect to training

times, in an email dated 18 J anuary 2017 the [ project manag e r] informed the [ contracting officer’s representative] that the B a sic Guard Course is taking less time to cover all the required material. The [ contracting officer’s representative] stated, “L ess than 80 hours may be reasonable for a small class. I n order to assist me in making that determination, please send me the detailed course schedule for last week and this week. Also, I will need to review each student’s results of class quiz zes, class ex aminations, mid-term ex amination, and final ex amination.” Torres added additional training hours after the [ contracting

officer’s representative’s] review. The fewer the people to be train[ ed] tends to speed up trainingtime. Torres trains to Standard not to Time. Those trained passed all requirements in less than 80 hours. As all Government required courses were taug ht to standard, and Torres convey ed the fact of the accelerated schedule to the [ contracting officer’s representative] , Torres should not receive a poor evaluation.

I d. at 292; accord id. at 301-02. Mr. Orth summed up:

As it has done previously , during the current rated period, Torres continued to respond rapidly to remedy problems identified by the Government in deduct[ ion] letters, deficiency notices, or otherwise. Given that L ocal Guard F orce Services contracts rely on humans, predominately low paid g uards, to

ex e cute the majority

of the requirements of the contract, there is the potential that mistakes and errors will occur, including poor performance by

selected individuals. I n previous evaluations, the Department of State appears to have recog niz ed and accounted for this reality . Therefore, how Torres responds to and corrects issues should be the primary criteria for evaluating

performance. Torres prides itself on identifying and correcting problems before they

occur to the

max imum ex tent possible. I n those instances where problems occur, as noted in previous [ Contractor Performance Assessment Reporting Sy stem (“CPARS”)] evaluations, Torres responds rapidly to remedy

identified deficiencies. Torres’s Project Manag e r . . . , who previously served as the G4S [ project manag er] on the Paraguay [ local g uard forces] contract, has never had a neg a tive comment in the previous CPAR[ s] cited above. Embassy personnel have recog

niz ed Torres’s strong performance as recently as last month and ag a in in April 2017.

- 16-I d. at 307-08. He therefore indicated his nonconcurrence with the CPAR and requested a

reevaluation. I d. at 311.

I n the meantime, despite Torres’s efforts to closely monitor its mobile patrols, the State Department identified several instances when a mobile patrol failed to complete the four required rounds during a shift (in most instances, the mobile patrols completed three rounds). AR 383-84. I n an April 12, 2017 deduction letter, Mr. W elch indicated that the failures occurred with two mobile patrol units on March 24, 2017, one mobile patrol unit on March 25, 2017, two mobile patrol units on March 26, 2017, one mobile patrol unit on April 1, 2017, and one mobile patrol unit on April 5, 2017. Mr. W e lch stated that Torres had “failed to provide a corrective action that [ would] stop this activity from happening ” and prompted Torres to “put in place a realistic and reliable corrective action plan to correct the quality of [ its] patrol services.” I d. at 385. I n an April 19, 2017 letter, Mr. Orth acknowledg ed the violations, id. at 386, and provided Mr. W elch with a timeline of Torres’s “additional corrective action”:

1. On April 12, 2017, a Contractor-F urnished Property . . . computer with internet service was placed at the Radio Dispatcher Post. The Radio Dispatcher can now more effectively

supervise the rounds of each Mobile Patrol and verify locations using the GPS tracking sy stem in near real time.

2. Starting on April 20, 2017[ , Mr. Seg ovia] will use the Daily Mobile Patrol Rounds Verification Report to conduct daily reviews of GEMS Reports[ ,] the Vehicle Tracking

Sy stem . . . [ ,] the Mobile Patrol L o g s . . . [ ,] and Radio Dispatcher L og s from the previous 24 hours. He will submit this R eport to the [ contracting

officer’s representative and Mr. Orth]

. 3. Starting on April 20, 2017[ , the g uard force commander] , Supervisors and Radio Dispatchers will also use the Daily Mobile Patrol Rounds Verification Report to monitor and review Mobile Patrol rounds.

4. Starting on April 20, 2017[ ,] . . . when the Mobile Patrolman (Guard/Driver) conducts the radio check every thirty minutes, reporting the patrol’s location and Residence checks for the last 30 minutes[ ,] the Radio Dispatcher will confirm the Residences to be checked over the nex t 30 minute period.

5. On April 21, 2017[ ,] Torres has scheduled Refresher Training for all Mobile Patrol Drivers to enhance and improve the performance of the [Mobile Patrol] posts. Torres will conduct this Refresher Training in two g roups to maintain continuity of services.

I d. at 386-87.

- 17-Meanwhile, on April 13, 2017, six day s prior to Mr. Orth’s letter describing Torres’s additional corrective action and the same day that Torres responded to the most recent CPAR, Ms. Guillory

sent a cure notice to Torres’s CEO, advising him that the State Department considered Torres’s “deficient performance under the [ contract] as an unacceptable condition that may endang er performance of the contract and place the security of the U.S. Embassy

in Asunción, Parag

u ay in serious jeopardy .” I d. at 390. She indicated that the purpose of the cure notice was to “draw Torres’s immediate attention to the need to make a reasonable effort to stabiliz e the delivery

of services in accordance with the terms and conditions of [ the] contract.” I d. I n particular, she explained:

I t is clear from the deficiency notices, deduction letters and non-performance compliance[ ] letters submitted during Option Year F o ur (4) and the current [ ex tension of that option y ear] , [ that] the [ United States g overnment] has documented the deficiencies and violations to contract requirements starting J uly 20, 2016 throug h April 5, 2017. Torres has not resolved the documented deficiencies reg arding cell phone usag e, Mobile patrol[ s] . . . [ ,] and lack of Quality Controls on behalf of the contractor.

I d. Ms. Guillory

then discussed the three areas of deficient performance–personal cell phone usag e , mobile patrols, and quality control–in more detail. I d . at 391-94. W ith respect to the first two areas, she summariz ed the problems and responses that were described in earlier correspondence and the most recent CPAR. I d. at 391-93. W ith respect to quality control, Ms. Guillory wrote:

The F AR clauses which are incorporated by reference into the contract clearly put the burden of implementing quality control onto the contractor. I t is clear from the discussion under the cell phone and vehicle rounds [ issues] that Torres is failingto perform the quality control required under the terms of the contract. W hile the g overnment has the right to conduct quality assurance, this rig ht does not shift the burden of performing quality control from the contractor to the g o vernment. Torres must implement an acceptable quality control plan as required by

the terms of the contract.

Torres . . . has not provided an accurate [ Quality Assessment and Compliance Report] in reg ards to:

1. F ailure to make rounds on the mobile patrol: failure to self-report issues and failure to self-deduct when applicable. The g overnment has to do a thoroug h daily

review of operations instead of a spot check.

2. GEMS reports have been not accurate and GPS sy stems find recurring failure to comply

with the contract requirements . . . .

- 18-3. Cell phone use: failure to self-report issues and failure to self-deduct when applicable.

4. Deductions directed by the [ United States g overnment] . The [ contracting

officer’s representative] has to reject invoices that did not include requested deductions on a monthly basis.

5. The contractor has failed to self-report and self-deduct throug h the life of this contract[ and] the [ United States g o vernment] has had to dedicate time to find the issues.

6. . . . [ Mr.] Seg o via has failed to report failures and non-compliance issues under this contract described [ from] J uly 20, 2016 to April 5, 2017. One of his duties . . . : Responsible for all quality control of g uard services.

At the Corporate level, Torres . . . has failed to reassure the [ United States g overnment] that issues described above will be resolved effectively and in a timely manner.

I d. at 393-94. Overall, Ms. Guillory concluded that Torres’s “substandard performance . . . [ had] been a recurring

issue beg inning in” the fourth option y ear and continuing throug h the six

month ex tension of contract performance, and that the State Department lacked “reassurance that the issues will be effectively resolved reg arding the cell phone usag e, the mobile patrol violations and the lack of quality

control.” I d. at 395. She therefore “demand[ ed] ” that Torres submit a corrective action plan within ten business days “that clearly and comprehensively

addresse[ d] the steps to immediately

correct each of the” specified deficiencies, warning Torres that she mig ht “consider it reasonable and necessary ” to terminate the contract for default. I d.

Mr. Orth responded to the cure notice on April 24, 2017. I d. at 396. W ith respect to the personal cell phone use issue, he noted that since Torres implemented the revised corrective action plan set forth in its March 31, 2017 letter, it “[ had] not had a cell phone incident.” I d. at 398-99. W ith respect to the mobile patrol issues, he provided some new information–for

ex ample, ex p laining that the failure of some of the g uard/drivers to complete four rounds during their shifts on March 24 to 26, 2017, was due to the need to respond to alarms at residences, the need to remain at a residence with an open g ate, and a vehicle breakdown–and then reiterated both the corrective action described in his March 16, 2017 letter and the additional corrective action described in his April 19, 2017 letter. I d . at 402-03. And, with respect to the quality control issues, he summariz ed the number and ty pes of quality

control inspections that Torres’s personnel had recently

conducted. I d. at 405. After addressing these three issues, Mr. Orth responded to each of the numbered problems identified by Ms. Guillory :

- 19-F ailure to make rounds on the mobile patrol: failure to self-report issues and

failure to self-deduct when applicable: Since the beg inning of the contract the [ project manag e r] , [ g uard force commander] and Shift Supervisors have counseled, suspended and/or terminated many g uard/drivers for not following

. . . Post-specific Orders. Torres has used more than 20 qualified g uards, including several Senior Guards, as Mobile Patrol drivers in a constant search to improve the work of the [ local g uard force] , specifically the Mobile Patrols. Torres deemed these actions as on-the-spot corrections not warranting self-reporting

. GEMS reports have been not accurate and GPS sy stems find recurring

failure to comply with the contract requirements . . . : Torres has alway s provided GEMS reports on a daily

basis to the [ contracting

officer’s representative]

. Torres’s latest [ corrective action plan] , addressingMobile Patrol deficiencies and dated April 19, 2017, will also correct this recent shortfall.

Cell phone use: failure to self-report issues and failure to self-deduct when applicable: Since the contract beg an on F ebruary 28, 2012, Torres has, throug h the daily inspections conducted by its [ project manag er] , [ g uard force commander] and Shift Supervisors, counseled, suspended and/or terminated many g uards for not following

General/Post Orders as they relate to the use of cellular phones while on duty . Torres deemed these actions as on-the-spot corrections not warranting

self-reporting . Throug h the life of this contract the [ project manag e r]
, [ g uard force commander] and Shift Supervisors have notified the [ contracting officer’s representative] of several issues of non-compliance by [ local g uard force] personnel.

Deductions directed by

the [ United States g overnment] . The COR has to reject invoices that did not include requested deductions on a monthly basis. Torres has alway s included [ United States g overnment] -directed deductions in its invoices.

The contractor has failed to self-report and self-deduct throug h the life of this contract, the [ United States g overnment] has had to dedicate time to find the issues. Since the contract beg an on F ebruary 28, 2012, Torres has, through the daily inspections conducted by its [ project manag er] , [ g uard force commander] and Shift Supervisors, counseled, suspended and/or terminated g uards for not following General/Post Orders as they relate to the use of cellular phones while on duty . Torres deemed these actions as on-the-spot corrections not warranting self-reporting . Until F e bruary 2017, the [ contracting

officer’s representative] appeared satisfied with the actions taken by Torres to identify

and correct these issues, and therefore Torres had no reason to self-deduct.

[ Mr.] Seg ovia[ ] has failed to report failures and noncompliance issues under this contract described [ from] J uly 20, 2016 to April 5, 2017. One of his duties . . . :

- 20-Responsible for all quality control of g uard services. F rom J uly 20, 2017 throug h April 5, 2017, [ Mr.] Seg ovia[ ] has counseled, suspended and/or terminated g uards from this contract for failures and non-compliance by [ local g uard force] personnel. He has disciplined Guards and other [ local g uard force] personnel . . . . Guards have been disciplined for sleeping on Post, using cell phones and reporting late for work, and Mobile Patrols have been disciplined for not making their rounds per the contract.

I d. at 405-06. F inally , Mr. Orth described Torres’s proposed corrective action:

i. As stated above, Torres has implemented a more robust daily method for ensuring contract compliance by its Mobile Patrols . . . . Torres will self-deduct based on the results of the Daily Mobile Patrol Rounds Verification Reports when warranted.

ii. [ Mr. Orth] will travel to Paraguay from May

6-10, 2017 to assess the implementation of Torres’s [ corrective action plans] as well as to conduct another [ quality assurance/quality

control (“QA/QC”)] inspection of the [ local g uard force] . He intends to meet with the [ contracting officer’s representative] and [ reg ional security

officer] to discuss [ local g uard force] performance and to discuss collaboratively

how Torres can continue to improve its contract performance.

iii. Torres’s CEO will continue performing spot (ad-hoc) QA/QC inspections while in Paraguay

. iv. Torres’s Reg ional Administrative Manag er will continue monthly , if not bi-weekly , [ Project Manag ement Office] inspections.

v. During his weekly

[ project manag er] teleconference call, [ Mr. Orth] will assess contract compliance, identify potential issues and develop and implement proactive solutions before they become issues.

I d. at 407.

Ms. Guillory responded to Mr. Orth’s letter on May 9, 2017, taking issue with a number of his statements. I d. at 410-12. Among other comments, she remarked that (1) an April 20, 2017 review of GEMS records from two to three randomly selected day s over a four-month period (from November 2016 to F ebruary 2017) revealed “1,450 failures to make rounds”; (2) clause E.1 and the inspection-related F AR provisions “clearly put the burden of implementing quality control onto the contractor”; (3) “[ t] he g overnment has a tracking record of deductions, deficiency

letters and other performance related communication between the [ c ontracting officer’s representative] and the [ project manag er] to support [ alleg a tions] of lack of quality

- 21-control measures and self-reporting by Torres”; and (4) Torres was required, pursuant to clause E.1, to self-report all incidents that resulted in Torres counseling , suspending , and/or terminating any employ ees. I d. at 411-12. Ms. Guillory directed Torres to submit a revised cure notice response that addressed her comments. 4 I d. at 412.

C. The Solicitation f

or the F ollow -On Contract

As Torres continued to perform under the local g u ard services contract, and in anticipation of the ex piration of that contract, the State Department prepared to solicit proposals for the follow-on contract. See g enerally id. at 414-61. Ultimately , on J anuary 3 1 , 2017, the State Department issued solicitation SAQMMA16R0125, requesting proposals to provide local g uard services at the United States Embassy in Asunción, Paraguay , for up to five y ears (one base
y ear and four option y

ears). I d. at 462, 465.

Pursuant to Section L of the solicitation, each offeror was to submit its proposal in two volumes, one containing its price proposal and one containing its technical proposal. I d . at 519- 20. The technical proposal was to be divided into three main sections: manag ement plan, past performance and ex

perience, and preliminary transition plan. I d. at 524-25. The manag ement plan section was to contain five subsections: org aniz ation and manag ement, key personnel, training prog ram, conting ency plan, and quality

control plan. I d. at 524. Of relevance in this protest is the conting ency plan, which was to address how the offeror would “ensure continuity of contractually

oblig ated services (anticipated and unanticipated) during adverse events to include (but not be limited to) labor disputes, civil unrest, natural disasters, dissolution of the J oint Venture (if applicable), or any other situation that would neg atively impact the U.S. Mission.” I d. at 527; see also id. at 528 (indicating that the following possible occurrences should be addressed in the conting ency plan: labor action, civil unrest, natural disaster, dissolution of joint venture, mass casualty , scheduled and unscheduled absences of key personnel, and currency

/economic crisis). Also relevant in this protest is th e past performance and ex p erience section of the technical proposal, for which the offerors were instructed to “[ l] ist all contracts and subcontracts the Offeror (and each partner in the joint venture) has held over the past five y e ars for the same or similar work.” I d. at 529. F urther, in the past performance subsection of their technical proposals, offerors were to “[ p] rovide the followinginformation for each contract and subcontract”:

7. B rief discussion of any technical problems and their resolution.

8. B rief discussion of any terminations (partial or complete) and the ty pe (convenience or default) as well as any deficiency notices, corrective action plans, show cause letters or cure notices (provide ex planatory details).

4 Torres’s revised response to the cure notice is not included in the administrative record. Torres alleg es in its complaint that it sent its revised response to the State Department on May 22, 2017. Compl. ¶ 57.

- 22-9. L isting of deductions taken under any listed contracts, with ex planatory details and resolution.

10. B rief description of any deficiency

notices received related to contract non-compliance and a brief description of the corrective actions to remedy the non-compliant performance.

I d. Offerors were advised that the State Department mig ht contact their customers to “request additional past performance information.” I d. at 529-30.

B e cause the solicitation provided that the State Department would award the contract to the responsible offeror with the lowest-priced, technically acceptable proposal, id. at 538, the State Department planned to conduct “[ a] price evaluation to determine the total price proposed by each Offeror” and a “[ t] echnical evaluation to determine the technical acceptability of the offer to the solicitation’s technical requirements,” id. at 533. Reg arding the latter assessment, the State Department identified the factors and subfactors that it would evaluate, which mirrored the required sections and subsections of the technical proposal, id., and then described the relative importance of each factor and subfactor:

The relative importance of the technical evaluation factors is: F a ctor A, the Manag ement Plan, is relatively equivalent to F actor B , Past Performance and Ex perience. Each of those factors is of g reater importance than F actor C, the Preliminary

Transition Plan. The sub-factors within F a ctor A, the Manag ement Plan . . . are listed in descending order of importance[ : Org aniz ation and Manag ement, Key

Personnel, TrainingProg ram, Conting ency Plan, and Quality Control Plan] . W ithin F actor B , Past Performance and Ex perience, the Ex perience sub-factor is of g reater importance than the Past Performance sub-factor.

I d. at 534. The State Department then addressed how it would evaluate the proposals on each subfactor. I d. at 535-37. W ith respect to the conting ency plan subfactor, it provided:

[ T] o be considered acceptable and receive a “pass” in the Conting ency Plan sub-factor, the proposal must be complete and clear, comply with the requirements of the solicitation, demonstrate a thoroug h understanding of the requirements and demonstrate the ability to perform the prospective contract successfully

in the areas identified in this sub-factor.

I d. at 536. And, with respect to the past performance subfactor, it provided:

Past performance includes the Contractor’s record of conforming to contract requirements and to standards of g ood workmanship; the Contractor’s record of forecasting

and controlling costs; the Contractor’s adherence to contract

- 23-schedules, including the administrative aspects of performance; the Contractor’s

history of reasonable and cooperative behavior and commitment to customer satisfaction; the Contractor’s record of integ rity and business ethics[ ;] and g enerally , the Contractor’s business-like concern for the interest of the customer.

I n evaluating past performance, the Government may use past performance information obtained from sources other than those identified by the Offeror in its proposal, e.g ., its own records, other F ederal ag encies or companies, and information available through commercial sources.

The Government uses past performance information primarily to assess an Offeror’s capability

to meet the solicitation performance requirements, including the relevance and currency of the Offeror’s work ex

perience. . . .

The Government may

obtain past performance information from the Past Performance I

n f ormation Retrieval Sy stems (PPI RS).

I d. at 537. F inally , the State Department indicated:

The Government will evaluate the Offeror’s proposal on an Acceptable/ Unacceptable basis. To be considered technically acceptable, the technical proposal must provide the information requested in Section L , conform to the requirements of the solicitation and demonstrate the ability to perform the prospective contract successfully . The Government will consider the [ described] factors and sub factors . . . when determining the acceptability of the technical proposal. The Offeror’s response, or lack thereof, will be taken into consideration in the final evaluation. A rating of “unacceptable” for any sub-factor listed for the Technical Proposal may

render the entire Technical Proposal unacceptable.

I d. at 535; accord id. at 538.

Proposals were due by

F e bruary 28, 2017. I d. at 462, 518. Only two offerors submitted proposals, id. at 2291, 2303: Torres, a limited liability company , id. at 1139, and G4S, a joint venture between G4S Secure I nteg ration L L C, G4S Secure Solutions I nternational Inc., and W a ckenhut Parag

uay S.A., id. at 867, 1018, 1021. See also id. at 820-1138 (G4S’s proposal), 1139-520 (Torres’s proposal).

D. Evaluation of

P roposals f

or the F ollow -On Contract

Upon their receipt by

the State Department, the proposals were evaluated by a Technical Evaluation Panel (“TEP”) composed of three individuals–Mr. W elch and two security prog ram officers from the B ureau of Diplomatic Security . I d. at 1527, 1531, 1535. I n its initial review, the TEP determined that neither proposal was technically acceptable. I d. at 2291. According ly
,

- 24-it soug ht additional information from the offerors via letters sent by Ms. Guillory . I d. at 1536-42. Specifically , from G4S, the TEP soug ht information related to the org aniz a tion and manag ement, key personnel, quality

control plan, and preliminary transition plan portions of its proposal. I d. at 1536-37. The TEP did not seek information related to the conting e ncy plan or past performance portions of G4S’s proposal. I d.; cf. id. at 1074-91 (containing G4S’s conting e ncy

plan, in which G4S characteriz e d the [

. . .] ), 1115-17 (containing G4S’s past performance information, which was presented in three charts–(1) [ . . .] , (2) [ . . .] , and (3) [ . . .] 5 – and reflected that G4S reported numerous corrective action plans, an even g reater number of deductions, and at least one cure notice). F r om Torres, the TEP soug ht information related to the org aniz ation and manag ement, quality control plan, training p r og ram, past performance, and preliminary transition plan portions of its proposal. I d . at 1539-41. W ith respect Torres’s past performance, the TEP requested:

1. . . . As the incumbent, the Government has noted staffing shortag e s (i.e. [ project manag e ment] office) during the duration of the contract. Provide all the information as to composition and makeup (to include the list of names) of the current [ project manag e ment office] in Asunción, duration of performing duties and description of duties.

2. . . . Please provide information and detail as to all deductions, contract non-compliance letters, deficiency notices and corrective actions plans taken for the current contract periods option y ear three (3) [ a] nd Option Year (4) . . . .

I d. at 1541. I n its March 20, 2017 response to the discussion issues, Torres supplied the requested staffing

and past performance information, but also questioned the assertion that there were staffing

shortag e s in the prog ram manag ement office. I d. at 1746-53.

I t appears that in the meantime, Ms. Guillory prepared a cost/price evaluation report in which she determined that neither Torres’s total evaluated price of [ . . .] nor G4S’s total evaluated price of [ . . .] was “fair and reasonable,” and that both price proposals were “unacceptable” and “hig

hly risky .” 6 I d. at 2247-51. B ut see id. at 2250 (concluding that G4S’s total evaluated price was both “fair and reasonable” and “neither fair nor reasonable,” that G4S’s price proposal was both “acceptable” and “unacceptable,” and that G4S’s price proposal both

5 “G4S L ocal Opco” is W ackenhut Parag uay , S.A. AR 1021, 1023.

6 Althoug h Ms. Guillory ’s handwriting is not clear, the cost/price evaluation report appears to be dated May

10, 2017. See AR 2251. I ndeed, that is the date that defendant included in its index to the administrative record. However, Ms. Guillory ’s reference to the need for discussions, id., sug g ests that she prepared the report prior to sendingthe offerors price proposalrelated discussion questions on April 13, 2017, see id. at 1816-21.

- 25-carried “little or no risk” and was “hig hly risky ” 7 ). She concluded that discussions were warranted to address her concerns. I d. at 2251.

On April 13, 2017, Ms. Guillory sent both offerors another letter requesting additional information. I d . at 1816-21. Her letter to G4S addressed only one issue–that G4S’s proposed price “appear[ ed] to be [

. . .] .” I d. at 1816. I n response, G4S indicated that [ . . .] . I d

. at 1823. Subsequently , in a May

3, 2017 electronic-mail messag e, Ms. Guillory advised G4S that [ . . .]

. I d. at 2209. Neither G4S nor Ms. Guillory referenced the F ebruary

2, 2017 amendment to the solicitation in which the State Department [ . . .] . See id. at 642, 662-63; see also id. at 1145 (reflecting that G4S acknowledg ed receipt of the amendment on F ebruary 27, 2017).

I n her letter to Torres, Ms. Guillory noted that Torres’s performance during the fourth option y ear of the ex isting local g u ard services contract was poor in several respects, specifically identify ing issues with the mobile patrol, the provision of adequate training , compliance with Post Orders (related to the use of personal cell phones and g overnment-furnished vehicles), and key personnel. I d. at 1818-20. According ly , she posed the followingquestions:

Question 1: Address the past performance issues identified above for the Mobile Patrol, Training , and Post Orders violations. How will Torres effectively mitig ate these problems and avoid them on the future contract?

. . . . Question 2: Mr. [ . . .] has been proposed as the [

. . .] on y our proposal[

. H] ow [ will] Torres . . . assess and comply with the requirements on . . . solicitation SAQMMA16R0125 having Mr. [ . . .] involved in other projects as . . . the [ . . .] needs to be dedicated ex clusively to the local g u ard contract . . . ?

Question 3: The violations of several sections of the contract during the option y ear (4) in the g overnment’s ex perience is due to lack of oversig ht from the [ project manag e r] and [ local guard force] [ sic] . Does Torres plan to reassess the proposed personnel?

I d. at 1820.

7 These contradictions were not the only errors in the cost/price evaluation report. I n fact, almost every

parag raph contains a substantive error, a ty pog raphical error, or an inconsistency . The court recog niz es that only

a small portion of federal g overnment procurement decisions are protested. However, this fact does not absolve federal g overnment contracting officials of their duty

to ensure that their decisions are documented in a complete and coherent manner. Ms. Guillory ’s cost/price evaluation report does not meet this standard.

- 26-On April 26, 2017, Torres provided a comprehensive response to the issues raised and

questions posed by Ms. Guillory . See id. at 1836-47. W ith respect to the mobile patrol and compliance with Post Orders issues, Torres g e nerally reiterated what had been stated in the correspondence related to those violations, and then answered Ms. Guillory ’s questions. See id. at 1837-39, 1842-44. Then, with respect to the training issues, Torres ex plained that recent basic training did not last the full eig hty hours required by the contract because of the small number of g uards beingtrained, and that the contracting officer’s representative was aware of the situation as it was occurring . I d. at 1840. B ut see id. at 2299 (indicating that electronic-mail messag es revealed that the contracting officer’s representative was informed that training finished early after the training was complete). Torres also described its training resources. I d. at 1840-42. Nex t, with respect to the key personnel issue, Torres proposed an alternate project manag er. I d. at 1845-47. F inally , Torres described the positive feedback that it had recently received from embassy personnel reg arding its performance. I d. at 1836-37.

Upon the close of discussions, the TEP evaluated the offerors’ final proposals and reached a consensus rating o n each factor and subfactor:

F actor Torres G 4S
Manag ement Plan Acceptable Acceptable
Org aniz ation and Manag ement Acceptable Acceptable
Key Personnel Acceptable Acceptable
Training Prog ram Acceptable Acceptable
Conting ency

Plan Acceptable Acceptable
Quality Control Plan Acceptable Acceptable

Past Performance and Ex perience Unacceptable Acceptable

Past Performance Unacceptable Acceptable

Ex perience Acceptable Acceptable
Preliminary Transition Plan Acceptable Acceptable

I d. at 2252-90.

W ith respect to G4S’s propo sal, the TEP made the following comments reg arding the conting ency p lan subfactor: “The Offeror prepared a complete an d well composed plan that takes various ex traneous factors into consideration. The panel found no weaknesses within the offeror’s plan.” I d. at 2255. I t also provided comments reg arding the past performance subfactor: “The Offeror has proven confident [ sic] on past performance criteria as they have shown a long history

of successful work accomplishments with different ag encies locally and

- 27-abroad. The company has sig nificant ex perience working with US embassies around the world.” I d. at 2257. F inally , it made the following comments reg arding the past performance and

ex p erience factor: “G4S demonstrated corporate ex perience working on similar or even more complex security services overseas. Past performance is acceptable[ .] The TEP find[ s] G4S’s track [ sic] of past performance references satisfactory .” I d. at 2259.

W ith respect to Torres’s pro p osal, the TEP made ex tensive comments related to Torres’s response to the second round of discussion questions pertaining to past performance. I d. at 2276- 89. I t concluded: “The Offeror’s past performance and understanding of Embassy A sunción’s current contract, modifications, and ex hibits has caused the Panel to question [ its] ability to perform satisfactorily

on this project. Torres’[ s] final proposal does not satisfy those questions . . . .” I d. at 2289. I t then provided comments reg arding the past performance and ex perience factor: “The [ f] inal proposal provided additional information related to past performance and corrective actions. The Panel does not find Torres acceptable on past performance and . . . this final proposal does not satisfy the Panel’s concerns. The Panel does not consider the past performance of this offeror to be advantag eous to the US Government.” I d.

I n its report to Ms. Guillory , the TEP ex panded upon its concerns with Torres’s past performance:

The Offeror’s understanding of Embassy Asunción’s current contract, modifications, and ex hibits has caused the Panel to question [ its] ability to perform satisfactorily

on this project. The Panel does not have confidence that the Offeror can correct the major deficiencies to include mobile patrol issues, lack of understanding of post orders and . . . modifications to the contract, violation of post orders, [ and] lack of quality controls.

The Technical Evaluation Panel found the proposal from Torres . . . very risky to the [ United States g overnment] . . . . Past performance issues on Option Year F our[ include] misunderstanding of requirements under the current contract, lack of quality

controls and contract measures of completion, [ and] lack of quality [ c] ompliance review for GEMS reports and therefore incorrect invoicing for services that were not rendered.

I d. at 2292-93; accord id. at 2301; see also id. at 2298 (“[ P] ast performance issues [ related to the mobile patrols] have put the burden of identify ing any and all non-compliance by the Contractor on the Government, which has in turn forced the Government to spend many man hours via the [ contracting

officer’s representative] and [ locally eng ag ed] staff performing quality control functions that are contractually required to be performed by the contractor. The panel finds this behavior by

the contractor to be unreasonable and uncooperative and shows a lack of commitment to customer satisfaction.”), 2299-300 (“[ T] he Panel found the lack of demonstrable understanding of [ the contract’s training requirements] unacceptable . . . . I n order to conform to contract requirements, the requirements must be understood. F ailure to understand basic contract

- 28-requirements for training demonstrates a potential liability to the [ United States g overnment] .”), 2300 (finding Torres’s ex planations reg arding the personal cell phone issues unpersuasive). Ultimately , the TEP found Torres’s proposal to be technically unacceptable and G4S’s proposal to be technically acceptable. I d . at 2293-94, 2296.

I n a May 19, 2017 document bearing the title “Price Neg otiation Memorandum,” Ms. Guillory summariz ed the acquisition process for the follow-on local g uard services contract, including the TEP’s rating s of the offerors’ final proposals. 8 I d. at 2302-05. She then related the TEP’s narrative evaluations of proposals. 9 I d. at 2305-09. After setting forth the TEP’s comments, Ms. Guillory

indicated her ag

reement with the TEP’s conclusions:

The contracting

officer ag

reed with the TEP finding s that G4S is technically

acceptable. Revisions to its proposal were log ical and satisfactory to the TEP and the contracting office [ sic] . The contracting officer also ag

reed that Torres was unacceptable due to its past performance and concerns over the understanding of current contract commitments reflected [ in] their response to past performance inquiries. Therefore, G4S is the only [ ] technically acceptable offeror representing

the best value to the Department.

I d. at 2310. Nex t, Ms. Guillory conducted a price evaluation. I d. at 2310-13. She indicated that G4S’s total evaluated price after discussions was $10,301,376.58, and that Torres’s total evaluated price after discussions was [ . . .] . I d. at 2310. She then analy zed whether G4S’s proposed price was fair and reasonable, g iven that it was sig nificantly hig her than the independent g overnment estimate of [ . . .] . I d. at 2311-13. She found that the differences between G4S’s proposed price and the independent government estimate could be ex plained by valid choices made by

G4S and limitations with the independent g overnment estimate. I d. at 2312-13. According ly
, she concluded that G4S’s proposed price was fair and reasonable. I d. at 2313.

8 Ms. Guillory included in her memorandum a chart purportedly summariz ing the TEP’s consensus rating s, but one of the rating s she noted for Torres was inaccurate; the TEP rated Torres’s proposal as acceptable, not as unacceptable, for the manag e ment plan factor. Compare AR 2296 (reflecting

the TEP’s acceptable rating ), with id. at 2305 (indicating Ms. Guillory ’s inaccurate portray

al of the TEP’s rating ). However, g iven that Ms. Guillory ’s assessment of Torres’s proposal was focused on the past performance subfactor, see id. at 2310, her error likely did not affect the award decision.

9 These narratives were incomplete in two respects: (1) they did not address each factor and subfactor evaluated by the TEP, and (2) with respect to the narrative for Torres, Ms. Guillory only included the TEP’s comments on Torres’s final proposal, which were focused solely on the past performance subfactor. AR 2305-09.

- 29-After conducting a price evaluation, Ms. Guillory assessed whether G4S was a responsible offeror. I d. She ex p lained:

The ContractingOfficer conducted the requisite checks of [ the] F e deral Awardee Performance I

nformation and I

n teg rity Sy stem (F A PI I S)[ and the PPI RS] for all parties of the joint venture. The Contracting Officer also checked the Sy stem for Award Manag ement (SAM) to ensure there were no active

ex c lusions. No derog atory information was found that precludes contract award to G4S Secure Integ ration L L C/G4S Secure Solutions I nternational Inc./G4S Soluciones de Seg u ridad S.A. 1 0

G4S J oint Venture has adequate financial resources; can comply with the performance schedule; has a satisfactory performance record; and has the necessary org aniz ation, ex p erience and technical skills to perform the contract. I n addition, G4S is currently performing

satisfactorily under numerous local g u ard contracts around the world.

I d. (footnote added). According ly , Ms. Guillory determined that it was “in the best interest of the U.S. Government to award a contract for local g uard services at the U.S. Embassy in Asunción, Parag uay to the G4S [

joint venture] . . . at a fair and reasonable price of” $10,301,376.58. I d. at 2314.

E. Contract Aw ard and Debrief ing

On May 31, 2017, Ms. Guillory

advised both offerors that G4S had been awarded the contract. I d. at 2315-17; accord id. at 2325-498 (containing the contract). Pursuant to the solicitation, the notice to G4S trig g ered the ninety -day transition period to be conducted in accordance with G4S’s transition plan. I d. at 2315-16.

On J une 5, 2017, at Torres’s request, Ms. Guillory provided Torres with a written postaward debriefing . I d. at 2320-24. She ex plained that Torres’s past performance was deemed unacceptable, and described the deficiencies identified by the TEP. I d. at 2320-21; see also id. at 2323 (“Torres[ ’s] past performance responses were deemed unacceptable, therefore Torres’[ s] proposal was unacceptable[ ;] G4S’[ s] proposal was deemed technically acceptable on all factors.”).

1 0 According

to G4S’s proposal, the joint venture was between G4S Secure I nteg ration L L C, G4S Secure Solutions I nternational Inc., and W ackenhut Parag uay S.A. AR 867, 1018, 1021. I t is unclear why

Ms. Guillory

checked the databases for information reg arding G4S Soluciones de Seg u ridad S.A., or whether Ms. Guillory checked the databases for information reg arding W ackenhut Parag uay S.A.

- 30-II. P ROCEDURAL HISTORY

Torres filed the instant protest on J une 26, 2017. I n its complaint, Torres alleg e s that “the State Department intentionally soug ht to create a basis to deny the award to Torres . . . by taking routine performance issues and ex ag g eratingthem into major deficiencies” and “perform[ ing ] an early and abbreviated CPARS evaluation that could be considered by the TEP as neg ative past performance information.” Compl. ¶ 27; accord id. ¶ 68 (characteriz ing the State Department’s actions as “mere pretex ts”).

W ith respect to the former alleg ation, Torres states that “the State Department’s handling of routine performance issues took a marked shift in March 2017,” id. ¶ 65, when Ms. Guillory “beg an to send Deficiency L etters and Cure Notices herself, by passing the embassy

level communication with the [ contracting officer’s representative] that had proved effective in all previous y ears,” id. ¶ 67; accord id. ¶ 34. According to Torres, “[ t] he issues raised [ by Ms. Guillory ] reflected a dramatic chang e from prior practice, which recog niz ed that a guard force of approx imately

85 local g uards will occasionally ex p erience issues with g

uard performance, and instead emphasiz ed responsiveness.” I d. ¶ 67.

W ith respect to its alleg ation that the State Department “performed an early and abbreviated CPARS evaluation,” id. ¶ 27, Torres asserts that on April 3, 2017, the State Department “posted a CPAR for Torres’[ s] performance on the [ local g uard force] contract during the time period from November 24, 2016 throug h F ebruary

28, 2017,” despite the fact that “CPARS reviews were normally conducted on a y

early basis,” id. ¶ 47. Torres further asserts that Mr. Orth discussed the contents of the CPAR “with State Department personnel,” including Mr. W elch, duringa conference call on April 13, 2017. I d. ¶ 49. According

to Torres, it submitted its comments on the CPAR shortly after the conference call concluded, but before it did so, it received a cure notice from the State Department. I d. ¶ 50.

Torres further alleg es in its complaint that “[ t] he State Department’s bad faith toward Torres is rooted, at least in part, in” the fact that Torres filed a bid protest on September 12, 2016, “to challeng e the State Department’s J uly 13, 2016 decision to award G4S a contract for the provision of local guard force services at the U.S. Embassy in B u enos Aires, Arg e ntina.” I d. ¶ 28. I n that protest, Torres “alleg ed that the State Department demonstrated unfair bias toward Torres and treated Torres and G4S disparately.” I d. ¶ 29. Ultimately , on F e bruary 3, 2017, the State Department took corrective action. I d. ¶ 30. According to Torres, that protest “ang ered” the State Department employe es responsible for manag ing local guard force contracts, id. ¶¶ 32, 66, causing them to declare “that Torres would be unable to participate in future solicitations or that it should not ‘bother’ to do so,” and to invite another company “to bid as a competitor to Torres as a ‘favor’ to the State Department,” id. ¶ 33.

I n addition to its alleg ations of bias, Torres alleg es that in evaluatingthe proposals for the follow-on local guard services contract in Asunción, Parag uay , the State Department did not treat the offerors equally

but instead subjected Torres’s proposal to a hig her level of scrutiny

. I d.

- 31-¶¶ 70-71. Specifically , Torres contends that “G4S has a sig nificant history

of labor problems in L atin America and performance issues on contracts throug hout the world,” id. ¶ 71, but that its proposal–the conting e n cy plan in particular–“did not meaning fully address its recent, local history of labor unrest,” id. ¶ 73. Torres also contends that “G4S has had numerous performance issues similar to those used by the State Department to find Torres’[ s] past performance unacceptable,” id. ¶ 75, but that “the State Department failed to account for these and other deficiencies in G4S’[ s] past performance,” id. ¶ 76.

Ultimately , Torres asserts that the State Department’s award of the follow-on local g uard services contract to G4S was arbitrary , capricious, or otherwise contrary to law. I d. ¶¶ 77-84. I

n particular, Torres contends that

• “the [ State] Department’s solicitation process was marred by irregularity because [ it] made unsupported finding s of ‘unacceptability ,’ failed to properly weig h the factors and subfactors for Past Performance and Ex p erience, . . . eng ag ed in conduct that showed bias and favoritism, and ultimately awarded the contract to G4S despite Torres’[ s] history of acceptable-to-ex cellent performance in Parag

uay and its bid which was sig n ificantly lower than G4S’[ s] bid,” id. ¶ 81;

• “[ t] he decision to deny the award to Torres was arbitrary and capricious because the evaluating

officials treated Torres and [ G4S] in disparate fashion by emphasiz ing isolated past performance issues for Torres while failing to impose the same deg ree of scrutiny to the performance issues of the winning bidder,” id. ¶ 82;

• “The decision to deny the award to Torres was arbitrary and capricious because it lacked a rational basis and was influenced by the improper conduct and bias of [ State Department] personnel,” id. ¶ 83; and

• “[ t] he State Department violated [ the Competition in Contracting Act of 1984] because it did not treat all offerors on a level play ing field and did not meet the requirement of full and open competition,” id. ¶ 80.

Torres seeks an injunction preventing the State Department from proceeding with the contract awarded to G4S; a declaration that the contract award was arbitrary , capricious, an abuse of discretion, or otherwise not in accordance with law; an order setting aside the contract award and awarding the contract to Torres; and attorney ’s fees and costs. I d. at 22-23.

Along with its complaint, Torres filed a motion for a preliminary injunction, and then, two weeks later, its motion to supplement. The parties briefed both motions on an ex pedited basis, and the court heard arg ument on J uly

28, 2017.

- 32-III. BID P ROTEST STANDARD OF REVIEW

The United States Court of F ederal Claims (“Court of F ederal Claims”) possesses “jurisdiction to render judg ment on an action by an interested party objecting to . . . the award of a contract or any alleg e d violation of statute or reg ulation in connection with a procurement or a proposed procurement,” 28 U.S.C. § 1491(b)(1) (2012), and may “award any

relief that the court considers proper, including declaratory

and injunctive relief ex cept that any monetary relief shall be limited to bid preparation and proposal costs,” id. § 1491(b)(2). The court reviews the challeng ed ag ency action pursuant to the standards set forth in 5 U.S.C. § 706. I d. § 1491(b)(4). Althoug h section 706 contains several standards, “the proper standard to be applied in bid protest cases is provided by

5 U.S.C. § 706(2)(A): a reviewing court shall set aside the ag ency action if it is ‘arbitrary , capricious, an abuse of discretion, or otherwise not in accordance with law.’” B a nknote Corp. of Am. v. United States, 365 F

. 3d 1345, 1350 (F ed. Cir. 2004).

IV. TORRES’S MOTION TO SUP P LEMENT

The court first addresses Torres’s motion to supplement. Generally , “the focal point for judicial review should be the administrative record already in ex istence, not some new record made initially

in the reviewing

court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). An administrative record ty

pically contains the materials developed and considered by an ag ency

in making a decision subject to judicial review. See id. at 142-43 (remarking that an ag ency ’s finding must be “sustainable on the administrative record made” by the ag ency

at the time of its decision); Cubic Applications, I nc. v. United States, 37 F ed. Cl. 345, 349-50 (1997) (“[ T] he primary focus of the court’s review should be the materials that were before the ag ency when it made its final decision.”). The administrative record “should be supplemented only if the

ex isting record is insufficient to permit meaning ful review consistent with the” applicable standard. Ax iom Res. Mg mt., I nc. v. United States, 564 F

. 3d 1374, 1381 (F ed. Cir. 2009); accord id. at 1380 (“[ S] upplementation of the record should be limited to cases in which the ‘omission of ex tra-record evidence precludes effective judicial review.’” (quoting Murakami v. United States, 46 F ed. Cl. 731, 735 (2000), aff’d, 398 F .3d 1342 (F ed. Cir. 2005))).

One situation in which an administrative record may be insufficient to permit meaning ful judicial review is when a protestor alleg es that a procurement decision was tainted by bad faith or bias. I nforeliance Corp. v. United States, 118 F ed. Cl. 744, 747 (2014); I nt’l Res. Recovery , I nc. v. United States, 61 F ed. Cl. 38, 41-42 (2004); Orion I nt’l Techs. v. United States, 60 F e d. Cl. 338, 343-44 (2004). I

n such cases, the administrative record is likely to be bereft of evidence to support the protestor’s claim. See Pitney B owes Gov’t Sols., I nc. v. United States, 93 F ed. Cl. 327, 332 (2010) (“W here bias is alleg ed, the administrative record frequently will not be complete or suffice to prove or disprove the alleg ation.”); B e ta Analy tics I nt’l, I nc. v. United States, 61 F ed. Cl. 223, 226 (2004) (“[ R] are indeed would be the occasions when evidence of bad faith will be placed in an administrative record, and to insist on this–and thus restrict discovery reg arding bad faith to cases involving officials who are both sinister and stupid–makes little sense.”). However, because of the presumption that federal g o vernment contracting officials

- 33-perform their duties in g ood faith, see Am-Pro Protective Ag ency , I nc. v. United States, 281 F .3d

1234, 1239 (F ed. Cir. 2002), a protestor may not rely on “innuendo or suspicion” to justify discovery and supplementation of the administrative record with evidence of bad faith or bias, Orion I nt’l Techs., 60 F ed. Cl. at 344; accord Pitney B owes Gov’t Sols., I nc., 93 F ed. Cl. at 332 (noting that a protestor’s alleg ations of bias may “not rest merely

on counsel’s arg

ument, suspicion, or conjecture”); DataMill, I nc. v. United States, 91 F ed. Cl. 722, 732 (2010) (requiring “concrete and specific reasons–rather than nebulous assertions” to establish the necessity for discovery ).

Rather, a protestor “must first make a threshold showing of either a motivation for the Government employ e e in question to have acted in bad faith or conduct that is hard to ex plain absent bad faith,” and then “persuade the Court that discovery could lead to evidence which would provide the level of proof required to overcome the presumption of reg u larity and g ood faith.” B eta Analy

tics I nt’l, I n c

. , 61 F ed. Cl. at 226; accord Madison Servs., I nc. v. United States, 92 F ed. Cl. 120, 130 (2010) (“[ W ] here the procuring ag ency has provided for its decision a reasonable ex

p lanation, borne out by

an administrative record that otherwise appears complete . . . , the proffered ex tra-record material must indicate some personal animus or bias on the part of ag ency officials, reveal a latent inconsistency in the ex isting record, or otherwise g ive some indication that the ag e n cy ’s ex planation is pretex tual. Absent this threshold showing , a plaintiff[ ’s] bare alleg ations of bad faith are insufficient to place the issue or the proffered

ex tra-record evidence before the court.”). The threshold showing made by the protestor must be “strong ,” Pitney B owes Gov’t Sols., I nc., 93 F ed. Cl. at 332, “based on hard evidence,” I nt’l Res. Recovery
, I nc., 61 F e d. Cl. at 43, and “well g rounded,” id. See also Citiz ens to Preserve Overton Park, I n c. v. Volpe, 401 U.S. 402, 420 (1971) (remarking that “there must be a strong showing of bad faith or improper behavior before” a court can permit “the administrative officials who participated in the decision to g ive testimony ex plaining their action”), overruled on other g rounds by

Califano v. Sanders, 430 U.S. 99 (1977); I nfo. Tech. & Applications Corp. v. United States, 316 F .3d 1312, 1323 n.2 (F ed. Cir. 2003) (holding that the trial court did not err in refusing to allow discovery on the issue of bias because there was no evidence in the administrative record showing bias, and because alleg ations of error in the evaluation of proposals are “insufficient to overcome the presumption that the contracting officer acted in g ood faith”); Impresa Construz ioni Geom. Domenico Garufi v. United States, 238 F .3d 1324, 1341 (F ed. Cir. 2001) (“[ D] iscovery of the contracting

officer’s reasoning

is not lig htly

to be ordered and should not be ordered unless record evidence raises serious questions as to the rationality of the contracting

officer’s [ decision] .”).

I n its motion to supplement, Torres contends that the administrative record lacks the evidence necessary

to establish that the State Department’s award decision was tainted by bias and bad faith. It therefore requests that it be permitted to (1) depose Ms. Guillory and Mr. W e lch, (2) obtain State Department records concerning G4S’s performance on United States embassy contracts, (3) obtain any

past performance questionnaires reviewed by the TEP in connection with evaluating G4S’s past performance, (4) request certain State Department correspondence and other documents, (5) conduct discovery related to the State Department’s

- 34-manag ement of performance issues with other local g uard services contracts, and (6) supplement the administrative record with the information that it anticipates will be obtained throug h discovery and the three declarations it attached to its motion to supplement (two from Mr. Orth and one from Alan E. Subirat). According to Torres, the information it seeks will allow it to prove that the State Department’s rating of its proposal on the past performance subfactor was motivated by

bias, that the State Department’s neg ative assessments of its performance were little more than pretex ts for deny ing it the follow-on local g uard services contract, and that the State Department eng ag e d in disparate treatment in favor of G4S. The court addresses each contention in turn.

A. Bias

F irst, with respect to its alleg ation of bias, Torres contends that the State Department’s “motivation for concocting an unacceptability

finding was rooted in antipathy of certain [ State Department] officials ag ainst Torres,” which, “[ f] or at least a year, . . . has manifested throug h overly critical and biased reviews, adverse treatment of Torres in solicitations, and outrig ht statements of bias.” Pl.’s Mot. Suppl. 5. I n support of this contention, Torres relies on an electronic-mail messag e, a conversation, a purported pattern of the State Department rejecting its proposals, and the fact that it alleg ed bias in a prior protest.

The electronic-mail messag e that Torres relies on was sent by Edoardo Gig lio, an

ex e cutive director at F ield Support Services Group, to an individual at Security and Manag ement Services, Torres’s partner on its local g uard services contract for the United States Embassy in Pakistan, on April 17, 2017. Mr. Gig lio wrote: “W e know y ou are currently partnered with Torres and are aware of the current leg al problems which the US State Department has with Torres which will see them not included in any further bidding

. ” Suppl. Orth Decl. Ex . A at 2. Thereafter:

Torres . . . contacted Mr. Gig lio to verify that he sent the email and that he had identified Tim L y

kes, the Director of Global Security at Tex tron Sy stems, as the source of the statement contained therein that the Department of State had told Torres “not to bother” tendering for the forthcoming

Pakistan local g uard force contract. Torres contacted Mr. L y kes who stated words to the effect that Torres’[ s] relationship with the [ State Department] was “vitriolic” and “g ot to the point where [ the State Department] say s it’s irreconcilable differences.” Mr. L y kes declined to identify

his sources within the [ State Department] , but further stated that he “g o[ es] down to State Department often and [ he is] aware of who is in favor and who is not.” During that conversation, Mr. L

y kes reported that State

- 35-Department personnel invited Tex tron to prepare a proposal for the Pakistan

[ request for proposals] . Mr. L y kes described Tex tron’s decision to g et involved as a “favor” for the Department of State.

Suppl. Orth Decl. ¶ 13. 1 1

Neither the electronic-mail messag e from Mr. Gig lio nor the conversation with Mr. L y kes constitutes the strong evidence required to permit discovery and supplementation of the administrative record. Mr. Gig lio’s messag e and Mr. L y kes’s conversation concerned a contract in Pakistan, and, to the ex tent that Mr. L y kes was asserting

that the State Department considered its relationship with Torres to be poor as a g eneral proposition, he declined to name any specific State Department employ ees who held this view. Alleg ations concerning a nother contract and alleg ations from unnamed State Department employ ees are woefully

inadequate to support a claim that the individuals involved in awardingthe follow-on local g uard services contract in Asunción, Parag

u ay –namely , Ms. Guillory , Mr. W elch, and the two other members of the TEP–were biased ag a inst Torres.

I n addition to rely ing on the electronic-mail messag e and the conversation, Torres contends that between 2010 and 2014, it “was awarded a doz en [ State Department] local g uard force contracts with a success rate of approx imately 30%,” but thereafter, “[ w] ithout any meaning ful ex planation, . . . the [ State Department] beg an sy stematically denying [ its] proposals.” Pl.’s Reply

4. Specifically
, it notes that it has only been awarded one local g uard force contract since 2014 (in B urundi), while at least fourteen other proposals were rejected. I n four cases, Torres’s proposal was found to be technicallyacceptable but was not the lowestpriced. 1 2 I n another four cases, Torres’s proposal was the lowest-priced, but was found to be technically

unacceptable. 1 3 And, in one case, Torres’s proposal was found to be both technically

1 1 Defendant arg

u es that the court should not consider the contents of the declarations submitted by

Torres in support of its motion to supplement. The court disag rees; Torres is entitled to “rely

on ex tra-record evidence to support its claim that discovery reg arding bad faith conduct is necessary .” B eta Analy tics I nt’l, I nc., 61 F ed. Cl. at 226. I ndeed, defendant itself relies on ex trarecord evidence–the declarations of Ms. Guillory and Mr. W elch–in opposing Torres’s motion to supplement. See, e.g ., Def.’s Resp. 31, 33, 36-37.

1 2 Torres submitted these proposals for the following contracts: W orldwide Protective Services (F ebruary

12, 2016), the United States Embassy in Slovakia (J une 25, 2016), the United States Embassy

in Rwanda (Aug

ust 18, 2016), and the United States Embassy in Colombia (Aug ust 22, 2016).

1 3 Torres submitted these proposals for the following contracts: the United States Embassy in Guatemala (Aug

ust 28, 2015), the United States Embassy in Austria (October 13, 2015), the United States Embassy in B o tswana (March 2, 2016), and the United States Embassy in Arg e ntina (J uly

14, 2016).

- 36-unacceptable and not the lowest-priced. 1 4 Torres arg ues that the State Department’s actions in these post-2014 procurements reflect a pattern of purposely finding Torres’s proposals to be technically

unacceptable only

when Torres offers the lowest price. 1 5 However, there is another, innocent ex planation for the pattern that Torres discerns in the State Department’s actions: Torres’s proposals were, in actuality , technically

unacceptable when found to be so. I n the absence of any

evidence that the State Department improperly found Torres’s proposals to be technically

unacceptable, Torres’s suspicion that the State Department has conspired to reject its proposals in all procurements is insufficient to support its request for discovery and supplementation of the administrative record.

The final evidence of bias offered by Torres relates to the basis of a prior protest it filed in this court. Specifically , in September 2016, Torres filed a protest challeng ing the State Department’s decision to award the local g uard services contract for the United States Embassy in Arg e ntina to G4S. Torres alleg ed that in making the award, the State Department “demonstrated unfair bias ag ainst Torres and disparate treatment in favor of G4S.” Pl.’s Mot. Suppl. 7. I n one of the declarations that Torres submitted in support of its alleg ation, Mr. Subirat, who was employ ed at the United States Embassy in Arg entina until December 27, 2016, stated that ten months prior to preparing his declaration in J anuary 2017, two State Department employ e es at the United States Embassy in Arg entina told him “that a Contracting Official in W a shing ton DC pushed them to help remove Torres from being the security g uard contractor.” Subirat Decl. Ex

. A. Ultimately , on F ebruary 3, 2017, the State Department took corrective action.

The fact that the State Department took corrective action in the Arg entina procurement after Torres filed a protest alleg ing bias is not sufficient to allow discovery and supplementation of the administrative record in this protest. Torres provided no evidence that the State Department employ ees involved in the Arg entina procurement were in any way involved in awarding the follow-on local g

uard services contract in Asunción, Parag uay ; indeed, according defendant, the only o v erlap was that one individual served on the TEP in both procurements, and that individual was instructed not to discuss the Arg entina procurement during the Paraguay procurement. Moreover, to the extent that the statement relay ed by Mr. Subirat is accurate, it pertains to the Arg entina contract, not the Parag uay contract. I

n short, Torres’s invocation of the Arg e ntina procurement in support of its claim of bias in the procurement of the follow-on local g uard services contract in Asunción, Parag uay is unavailing

.

1 4 Torres submitted this proposal for the contract at the United States Embassy in Greece (December 2016).

1 5 This purported pattern is belied by the fact that Torres’s proposals have been found to be both technically

unacceptable and not the lowest-priced, and by the fact that Torres has actually been awarded a local g

uard services contract in the relevant time period.

- 37-B. P retextual P erf orm ance Assessm ents

Second, Torres contends that the State Department “beg an to manufacture” neg ative assessments of Torres’s performance of the local g uard services contract in Asunción, Parag uay as a pretex t to deny ing it the follow-on local g uard services contract. Pl.’s Mot. Suppl. 7. I n support of this contention, Torres refers to the “shift in March 2017 to a harsh and unrealistic assessment of Torres’[ s] performance issues and attempts to remedy them” and “the State Department’s decision to conduct an early CPARS review that the TEP could use to support an ‘unacceptable’ past-performance rating .” I d. Torres avers that the adverse performance assessments were done in bad faith, rely ing on the evidence in the administrative record related to the personal cell phone use, training , and mobile patrol issues.

W ith respect to its assertion that the State Department beg an to note deficiencies with its performance more frequently and more harshly
, Torres remarks that prior to it filing a protest related to the Arg entina procurement, the State Department only “occasionally ” cited Torres “for isolated performance deficiencies and credited” Torres “for addressing them quickly and effectively .” I d. at 7-8; accord id. at 8 (“Notwithstanding these relatively minor, infrequent performance issues, State Department personnel considered Torres’[ s] performance to be very g ood or ex ceptional.”). Thereafter, Torres asserts, the State Department “beg an treating

what had been routine performance issues as major deficiencies.” I d. at 8; accord id. at 18 (asserting that State Department employ ees “beg an taking an increasing ly ag g ressive and inflex ible stance”). I

n addition, Torres alleg es, the State Department altered how it handled the deficiencies; rather than the contracting officer’s representative handling them at the local level, communications mostly

orig inated from the Arling ton, Virg inia office of the contracting officer. F inally , Torres emphasiz es that the State Department approved two of the corrective action plans it submitted on May

22, 2017–related to the personal cell phone use and mobile patrol issues–on J une 1, 2017, one day

after the State Department awarded the contract to G4S.

W h ile there is no question that the State Department noted deficiencies with Torres’s performance more often during the fourth option y e ar of the contract (and bey ond) than it did during the first four y ears of contract performance, and that some of the correspondence reg arding the deficiencies orig inated with the contracting officer rather than the contracting officer’s representative, these facts do not sug g est that the State Department was inventing reasons to deprive Torres of the follow-on local g uard services contract. Torres does not dispute that all of the violations noted by the State Department actually occurred or that the contracting officer was authoriz ed to correspond with it reg arding deficiencies. I ndeed, the most straig htforward ex p lanation for the State Department’s actions is that Torres’s performance was actually deficient. According ly
, Torres’s alleg ations are not enough to demonstrate that any State Department employ ee had a motivation to act in bad faith or that bad faith is the likely

ex p lanation for the State Department’s actions. F urthermore, the State Department’s acceptance of two of Torres’s corrective action plans one day after awarding

the follow-on local g

uard services contract to G4S is not, as Torres asserts, evidence that the State Department used the personal cell phone use and mobile patrol issues as mere pretex ts for deny

ing Torres that

- 38-contract. There is nothing inherently

improper with the State Department requiring
, rejecting
, and approving

corrective action plans.

Nex t, with respect to its assertion that the State Department conducted an irreg u lar CPARS evaluation for the three-month period ending F ebruary 28, 2017, Torres notes that previously , the State Department issued CPARs on an annual basis. However, defendant, rely ing on declarations from Mr. W elch and Ms. Guillory and supporting documents, provides a reasonable ex

planation for the issuance of this CPAR. As reflected in the administrative record, it was the State Department’s practice to prepare a CPAR for Torres at the end of every y ear of contract performance. However, on November 22, 2016, Mr. W elch received an electronic-mail messag e from Torres requesting a past performance questionnaire for use in its proposal for a State Department procurement in Peru. After learning that the State Department discourag ed such questionnaires, Mr. W e lch instead prepared a CPAR for the first nine months of the fourth option y ear. Then, in keeping with reg ular practice, the State Department prepared another CPAR for Torres at the end of the fourth option y ear.
Torres responds that notwithstanding the fact that it requested a past performance questionnaire in November 2016, Mr. W elch should not have prepared a CPAR to satisfy Torres’s request because “a [ past performance questionnaire] is only required if a CPAR review has not been conducted within the past three y ears,” and a CPAR for Torres’s performance already ex isted within that time period. Pl.’s Reply 5. Nevertheless, Torres contends, because a CPAR was prepared in November 2016, there was no reason for the State Department to issue another CPAR three months later, rather than at the end of the contract in Aug ust 2017. Torres’s arg ument is unconvincing . F irst, Mr. W elch’s preparation of a CPAR in November 2016 was trig g ered by

a request from Torres. Second, althoug h Torres provides support for the fact that Mr. W elch correctly declined to complete the requested past performance questionnaire, it does not cite any

statute, regulation, policy , or procedure prohibiting Mr. W elch from preparing a CPAR in lieu of a past performance questionnaire. Third, defendant’s ex planation that the State Department returned to its reg ular practice of preparing CPARs at the conclusion of each y ear of contract performance is eminently reasonable; indeed, had the State Department not done so and then awarded the follow-on local g uard services contract to Torres, G4S could have arg u ed that the November 2016 CPAR was irreg ular. Altog ether, Torres has not made a strong showing that the CPAR prepared at the conclusion of the fourth option y ear was likely

the result of bad faith conduct.

C. Disparate Treatm ent

Third, with respect to its assertion of disparate treatment, Torres contends that the State Department overlooked G4S’s “failure to provide complete past-performance information as required by

the [ solicitation] ,” 1 6 Pl.’s Mot. Suppl. 12; found G4S’s conting ency plan to be

1 6 A portion of Torres’s contention that G4S omitted required past performance information from its proposal was mooted by defendant’s subsequent correction of the

- 39-acceptable even thoug h it reflected that G4S’s [ . . .] , id.; omitted from the administrative record evidence to support its conclusion that it did not find any “derog atory

information” that would “preclude[ ] contract award” to G4S, id.; disreg arded the fact that its “overall past performance [ was] no worse than that submitted by G4S,” Pl.’s Reply

7; and did not evaluate G4S’s proposal in accordance with the solicitation.

I n support of its contentions that G4S omitted required past performance information from its proposal and that the State Department omitted supporting information from the administrative record, Torres relies on alleg ations included in Mr. Orth’s supplemental declaration. Mr. Orth asserts that “Torres has reason to believe that at least one member of the G4S joint venture recently held a contract with Archer Daniels Midland L L C . . . in Parag uay , from which it was removed or replaced due to serious performance issues.” I d. at 12 (citing Suppl. Orth Decl. ¶¶ 5-9). Mr. Orth further indicates that it was Torres’s understanding that “G4S was removed from that contract because its Parag uay based guards were involved in drug smug g ling and theft,” and “that this information was reported to the State Department.” I d. at 12-13 (citing Suppl. Orth Decl. ¶¶ 9-10).

Torres’s alleg ations reg a

rding the contract between a member of the G4S joint venture and Archer Daniels Midland L L C are nothing more than suspicion and innuendo. Mr. Orth does not indicate the source of his information, the precise identity of the company

that contracted with Archer Daniels Midland L L C, or the individual or individuals at the State Department who were informed of the contract issues. According ly , Torres has failed to make the necessary threshold showing to justify discovery

and supplementation of the administrative record.

Nex t, in support of its contention that G4S’s conting ency plan failed to [

. . .] , Torres, relying on Mr. Orth’s orig inal declaration, represents that “[ p] ublicly available reports show that G4S has a sig nificant history of labor problems in L atin America,” and that “mere months before G4S submitted its proposal, G4S’[ s] labor force in Parag uay protested the company ’s alleg ed violation of their rig h ts to fair compensation, health and safety .” I d. (citing Orth Decl. ¶¶ 45-46). However, Mr. Orth only

specifically

references one article: “Guardias de seg uridad se manifestan por derechas eludidados,” published in L a Nación on December 19, 2016. Orth Decl. ¶ 45. Althoug h Torres did not provide a copy or a translation of the article, the article is on L a Nación’s website, 1 7 and when run throug h an online translator, 1 8 it reveals that G4S’s security g uards had longbeen outrag e d by bad treatment and other irreg ularities, including salary and

administrative record to add six pag es from G4S’s proposal that had been inadvertently omitted. See Mot. F ile Attached Administrative R. 2, J uly 17, 2017; AR 1116.1-.6.

1 7 See Guardias de seg

u r idad se manifestan por derechas eludidados, La Nación, Dec. 19, 2016, http://www.lanacion.com.py /2016/12/19/g uardias-seg uridad-se-manifiestan-derechoseludidos/.

1 8 Goog le Translate, https://translate.g oog le.com/.

- 40-bonus issues, but were moved to protest when their Christmas baskets contained only cider and a sweet bread. There is no indication in the article that G4S’s security g uards eng ag ed in a strike or otherwise stopped working

. According

to Torres, the TEP acted improperly by “blindly accept[ ing ] ” G4S’s conting ency p lan. However, Torres does not alleg e that the TEP knew or should have known of G4S’s purported labor problems (of which Torres presents scant evidence); rather, it alleg es only that the TEP did not investig ate G4S’s assessment that there was a [ . . .] . Even if the TEP was required to conduct such an investig ation, its failure to do so is not necessarily attributable to bad faith. See Info. Tech. & Applications Corp., 316 F .3d at 1323 n.2 (noting that alleg ations of error in the evaluation of proposals are “insufficient to overcome the presumption that the contracting

officer acted in g ood faith”). Thus, Torres has failed to make the necessary threshold showing to justify

discovery

and supplementation of the administrative record.

Then, in support of its contention that its reported past performance was roug hly equivalent to G4S’s reported past performance, Torres relies on (1) the past performance information submitted by G4S in its proposal, which reveals numerous corrective action plans, an even g reater number of deductions, and at least one cure notice; and (2) the TEP’s failure to remark on these past performance issues. However, while the evidence noted by Torres may support a claim that the State Department did not evaluate the offerors’ past performance in an equal manner, it is insufficient evidence that the State Department acted in bad faith in conducting the evaluations. See id.

F inally , in support of its contention that the State Department’s evaluation of G4S’s proposal diverg ed from the process described in the solicitation, Torres alleg es that the State Department’s decision to award the follow-on local g uard services contract at a hig her price was reached by

improperly

considering technical factors when evaluating the offerors’ price proposals. Torres also contends that the State Department unlawfully made its award decision using a best value trade-off analy sis instead of the required lowest-price, technically acceptable approach. W hile these alleg a tions may support a claim of evaluation error, neither of these purported errors constitutes strong evidence of bad faith.

D. Conclusion

As described above, Torres has not offered strong evidence of bias or bad faith to support its request for discovery and supplementation of the administrative record. The court therefore denies Torres’s motion to supplement in its entirety

.

V. TORRES’S MOTION F OR A P RELIMINARY INJUNCTION

The court nex t addresses Torres’s motion for a preliminary injunction. The Court of F ederal Claims has the authority to award injunctive relief pursuant to 28 U.S.C. § 1491(b)(2), and is g uided in making such an award by Rule 65 of the Rules of the United States Court of

- 41-F ederal Claims. Preliminary injunctive relief is an ex traordinary and drastic remedy

. Maz urek v. Armstrong , 520 U.S. 968, 972 (1997) (per curiam); F MC Corp. v. United States, 3 F .3d 424, 427 (F ed. Cir. 1993). A protestor “seeking a preliminary

injunction must establish that [ it] is likely to succeed on the merits, that [ it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [ its] favor, and that an injunction is in the public interest.” W inter v. Nat. Res. Def. Council, I nc., 555 U.S. 7, 20 (2008); PGB A, L L C v. United States, 389 F .3d 1219, 1228-29 (F e d . Cir. 2004). None of the four factors, taken individually, is dispositive, and a “weakness of the showing reg arding one factor may be overborne by the streng th of the others.” F MC Corp., 3 F .3d at 427. Conversely , “the absence of any one factor may be sufficient” to deny preliminary injunctive relief. I d.; see also W ind Tower Trade Coal. v. United States, 741 F .3d 89, 100 (F ed. Cir. 2014) (“[ A] showing on one preliminary injunction factor does not warrant injunctive relief in lig ht of a weak showing on other factors.”). The award of preliminary

injunctive relief is within the discretion of the court. F MC Corp., 3 F .3d at 427. “W hen injunctive relief is warranted, it will only be issued upon a showingby a preponderance of the admissible evidence.” Tex tron, I nc. v. United States, 74 F ed. Cl. 277, 287 (2006).

A . Likelihood of Success on the Merits

To prevail on its motion for a preliminary injunction, Torres must establish that it is likely to succeed on the merits of its protest. Under the applicable standard of review, see supra Part I I I , the court

may set aside a procurement action if “(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of reg ulation or procedure.” A court reviews a challeng e broug ht on the first g round “to determine whether the contracting ag ency provided a coherent and reasonable

ex p lanation of its ex ercise of discretion, and the disappointed bidder bears a heavy burden of showing

that the award decision had no rational basis.” “W hen a challeng e is broug ht on the second g r ound, the disappointed bidder must show a clear and prejudicial violation of applicable statutes or reg ulations.”

Centech Grp., I

nc. v. United States, 554 F .3d 1029, 1037 (F ed. Cir. 2009) (citations omitted) (quoting I mpresa Construz ioni Geom. Domenico Garufi, 238 F .3d at 1332-33); accord Advanced Data Concepts, I

nc. v. United States, 216 F .3d 1054, 1058 (F e d. Cir. 2000) (“The arbitrary and capricious standard . . . requires a reviewing court to sustain an ag ency action evincing rational reasoningand consideration of relevant factors.”); see also Citiz ens to Preserve Overton Park, I nc., 401 U.S. at 416 (“The court is not empowered to substitute its judgment for that of the ag ency .”).

I n addition to showing “a sig nificant error in the procurement process,” a protestor must show “that the error prejudiced it.” Data Gen. Corp. v. J ohnson, 78 F .3d 1556, 1562 (F ed. Cir. 1996); see also B a

n num, I nc. v. United States, 404 F .3d 1346, 1351 (F ed. Cir. 2005) (holding

- 42-that if the procuring ag ency ’s decision lacked a rational basis or was made in violation of the applicable statutes, reg

ulations, or procedures, the court must then “determine, as a factual matter, if the bid protester was prejudiced by that conduct”). “To establish prejudice . . . , a protester must show that there was a ‘substantial chance’ it would have received the contract award absent the alleg ed error.” B anknote Corp. of Am., 365 F .3d at 1350 (quoting Emery W o rldwide Airlines, Inc. v. United States, 264 F

. 3d 1071, 1086 (F ed. Cir. 2001)); see also Data Gen. Corp., 78 F

. 3d at 1562 (“[ T] o establish prejudice, a protester must show that, had it not been for the alleg ed error in the procurement process, there was a reasonable likelihood that the protester would have been awarded the contract.”).

1. Violation of Applicable Regulations

I n its motion for a preliminary injunction, Torres first contends that the State Department violated its oblig ation to treat Torres “in an impartial, fair, and equitable manner.” Pl.’s Mot. Prelim. I nj. 14. Under the Competition in Contracting Act of 1984, when a federal ex ecutive ag ency conducts a procurement for property or services, it normally

must “obtain full and open competition throug h the use of competitive procedures in accordance with” the pertinent statutes and the F AR. 41 U.S.C. § 3301(a)(1) (2012); accord F AR 6.101 (“[ C] ontracting officers shall promote and provide for full and open competition in soliciting offers and awarding Government contracts.”). The F AR requires federal acquisitions to be conducted “with integ r ity , fairness, and openness,” F AR 1.102(b)(3), and instructs contracting officers to “[ e ] n sure that contractors receive impartial, fair, and equitable treatment,” F AR 1.602-2(b); accord F AR 1.102-2(c)(3) (requiring procuringag encies to treat all prospective contractors “fairly and impartially ”); F AR 15.306(e) (“Government personnel involved in the acquisition shall not eng ag e in conduct that . . . [ f] avors one offeror over another.”).

Torres arg

ues that the State Department violated the precepts of these F A R provisions during the procurement of the follow-on local g uard services contract by

(1) “deciding

from the outset that Torres should be denied the Parag uay contract (despite Torres’[ s] lowest-priced offer) in retaliation for Torres’[ s] Arg entina protest or based on the same animus that necessitated that protest in the first instance,” (2) undertaking “to g enerate inaccurate, pretex tual past-performance assessments that [ the State Department] could rely on to support a finding that Torres’[ s] proposal was technically

unacceptable,” and (3) holding “Torres’[ s] proposal to a stricter standard of review and overlook[ ing ] G4S’[ s] comparable history of past performance.” Pl.’s Mot. Prelim. I n

j. 17-18. The first two contentions constitute alleg ations of bias and bad faith, and the third contention is an alleg ation of disparate treatment.

a. Bias and Bad F a ith

As previously

noted, federal g overnment contracting officials are presumed to perform their duties in g ood faith. Am-Pro Protective Ag e ncy , I nc., 281 F .3d at 1239. According ly , a protestor alleg ing that a procurement was tainted by bad faith or bias may

only overcome that presumption with clear and convincing evidence. I d.; Galen Med. Assocs., I nc. v. United States,

- 43-369 F .3d 1324, 1330 (F ed. Cir. 2004); see also CACI , I nc.-F ed. v. United States, 719 F .2d 1567,

1582 (F ed. Cir. 1983) (remarking that “inferences of actual or potential wrong doing ” must be based “on hard facts” and not “on suspicion and innuendo”). Moreover, that evidence must demonstrate “some specific intent to injure the plaintiff.” Torncello v. United States, 681 F .2d 756, 770 (1982), quoted in Galen Med. Assocs., I nc., 369 F .3d at 1330.

I n support of its contention that the State Department’s decision to award the follow-on local g uard services contract to G4S was affected by bias that either predated or resulted from Torres’s protest of the award decision in the Arg entina procurement, Torres offers nothing more than suspicion and innuendo. I t does not alleg e that any of the individuals with influence over the procurement in Parag uay –such as Ms. Guillory

or Mr. W elch–had any

involvement in the procurement in Arg entina or, to the ex tent that such an individual ex ists, that the individual was biased ag a inst it. F urther, the fact that the State Department took corrective action in the Arg e ntina procurement after Torres filed its protest claiming bias does not establish that the State Department was biased ag ainst Torres; the State Department could have taken corrective action in response to Torres’s claim of disparate treatment or for another reason altog ether. 1 9 F inally
, Torres has not demonstrated that any bias ex hibited by the State Department in the Arg entina procurement tainted the State Department’s actions in other procurements. I n short, Torres has not offered “hard facts” in support of its claim of bias.

I n support of its contention that the State Department g enerated past performance assessments during its performance of the ex isting local g uard services contract as a pretex t to deny it the follow-on local g uard services contract, Torres again offers nothing more than suspicion and innuendo. W ith respect to the performance deficiencies noted by the State Department during

the fourth option y ear of the ex isting local g uard services contract (and bey o nd), Torres does not dispute that its performance was deficient or that the contracting officer was entitled to correspond with Torres reg arding the deficiencies. Nor does Torres claim that the State Department was acting outside the bounds of the contract in notify ing Torres of the deficiencies and requiring corrective action. According ly , the most reasonable explanation for the State Department’s actions is that Torres’s performance was, in fact, deficient. Torres has offered no “hard facts” to demonstrate otherwise. Similarly , with respect to the CPAR that the State Department prepared for the final three months of the contract’s fourth option y e ar, Torres has not provided any

“hard facts” demonstrating that the State Department was doing any thing more than continuing its practice of preparing CPARs at the conclusion of every y ear of contract performance.

I n sum, Torres has not demonstrated that the State Department’s decision to award the follow-on local guard services contract to G4S was tainted by bias or bad faith in contravention of the pertinent F A R provisions.

1 9 The notice of corrective action filed by defendant in that protest did not specify the State Department’s reason for taking corrective action. Def.’s Notice Corrective Action, Torres Advanced Enter. Sols., L L C v. United States, No. 16-1128C, ECF No. 36.

- 44-b. Disparate Treatm e nt

The court nex t turns to Torres’s claim of disparate treatment. I t is well established that procuringag encies “must treat all offerors equally , evaluatingproposals evenhandedly ag ainst common requirements and evaluation criteria.” B anknote Corp. of Am. v. United States, 56 F ed. Cl. 377, 383 (2003) (citing Seattle Sec. Servs., I nc. v. United States, 45 F ed. Cl. 560, 569 (2000)), aff’d, 365 F .3d at 1345; see also L -3 Commc’ns EOTech, I nc. v. United States, 83 F ed. Cl. 643, 653 (2008) (“W a iver of a mandatory requirement of the solicitation for the benefit of only one offeror invalidates a procurement decision.”); PGB A, L L C v. United States, 60 F ed. Cl. 196, 207 (2004) (“[ U] neven treatment g oes ag ainst the standard of equality and fair-play

that is a necessary underpinning of the federal g overnment’s procurement process and amounts to an abuse of the ag ency ’s discretion.”), aff’d, 389 F .3d at 1219.

I n this protest, Torres alleg es that the State Department treated it and G4S unequally

. 2 0 Specifically , it contends that the State Department (1) overlooked G4S’s failure to include all required past performance information in its proposal; (2) failed to investig ate G4S’s representation, in its conting ency plan, that the [ . . .] ; (3) provided no support for its assertion that it did not find any

derog atory

information reg arding the members of the G4S joint venture that would prevent it from awarding the contract to G4S; (4) disreg a rded that its past performance was no worse than G4S’s past performance; and (5) failed to evaluate G4S’s proposal in accordance with the solicitation.

F irst, there is no evidence in the administrative record supporting Torres’s contention that G4S did not include all of the required past performance information in its proposal. Second, Torres has not identified any provision in the solicitation that required the State Department to investig ate the representations of the offerors in their conting ency plans, especially in the absence of any evidence that those representations were erroneous. Third, Torres has not identified any evidence in the administrative record reflecting that Ms. Guillory

falsely represented that she did not find any

disqualify ing information when evaluating G4S’s responsibility . F inally
, while the administrative record may contain evidence supporting Torres’s contention that the State Department evaluated the offerors’ proposals on an unequal basis, it is unclear whether the State Department’s purported errors (1) constitute violations of the relevant F AR provisions or (2) prejudiced Torres. 2 1

2 0 Torres also alleg es that the State Department’s disparate treatment of the offerors was motivated by

bad faith. However, because disparate treatment, reg ardless of motivation, is a sufficient g round to sustain a protest, the court need not consider whether any disparate treatment by the State Department was motivated by bad faith.

2 1 B ecause Torres did not have access to the administrative record when it filed its motion for a preliminary

injunction, it first raised the unequal evaluation issue in its reply brief. Defendant and defendant-intervenor addressed the issue at oral arg ument, but neither party

has fully fleshed out its arguments in writing

.

- 45-I n sum, Torres has not established, at this juncture, that it is likely to succeed on its claim

that the State Department violated the provisions of the F A R requiring equal treatment.

2 . Rational Basis

Torres also contends in its complaint and in its motion for a preliminary injunction that the State Department’s decision to award the follow-on local g uard services contract to G4S lacks a rational basis. Althoug h it does not devote much attention to this contention in its motion for a preliminary

injunction, 2 2 Torres alleg es in its complaint that during its evaluation of proposals, the TEP (1) made “unsupported finding s of ‘unacceptability
, ’” (2) “failed to properly weig h the factors and subfactors for Past Performance and Ex p erience,” and (3) “ultimately awarded the contract to G4S despite Torres’[ s] history of acceptable-to-ex cellent performance in Parag uay and its” sig nificantly lower total evaluated price. 2 3 Compl. ¶ 81.

Torres’s alleg ations pertain mostly to the TEP’s evaluation of its past performance. W h en a protestor challeng es a procuring ag ency ’s evaluation of past performance, the court’s review is limited to ensuring that the evaluation was reasonable and performed in accordance with the solicitation; in other words, the procuring ag ency ’s evaluation is entitled to g reat deference. Am. Auto L og istics, L P v. United States, 117 F ed. Cl. 137, 186 (2014) (collecting cases). As an initial matter, the administrative record reflects that the TEP evaluated Torres’s past performance in accordance with the solicitation. Pursuant to the solicitation, the State Department intended to evaluate past performance “to assess an Offeror’s capability to meet the solicitation performance requirements,” and in conducting such evaluations, reserved the rig h t to “use past performance information obtained from sources other than those identified by the Offeror in its proposal, e.g

. , its own records, other F e deral ag e ncies or companies, and information available through commercial sources.” AR 537. The administrative record reflects that in evaluating Torres’s past performance, the TEP relied on the information contained in Torres’s proposal, information in its possession reg arding Torres’s performance as the incumbent contractor (which informed its discussion questions), and Torres’s responses to the discussion questions. There is no evidence in the administrative record indicating that the TEP’s evaluation of Torres’s past performance contravened the solicitation.

F urther, the administrative record reflects that the TEP’s evaluation of Torres’s past performance was reasonable. The TEP quite appropriately focused on Torres’s most relevant

2 2 I ndeed, Torres does not pursue this contention in its motion for a preliminary injunction, only

briefly asserting that “the decision to deny the award to Torres lacks a rational basis . . . .” Pl.’s Mot. Prelim. I nj. 14.

2 3 To the ex tent that Torres contends that the State Department’s decision to award the follow-on local guard services contract to G4S lacked a rational basis due to the ex istence of bias, bad faith, or disparate treatment, the court previously addressed those g

rounds for Torres’s contentions. See supra Section V.A.1.

- 46-past performance–its performance on the incumbent contract. See Seattle Sec. Servs., I nc., 45 F ed. Cl. at 567. I t posed two sets of discussion questions related to the deficiencies in Torres’s performance, and after reviewing Torres’s responses, concluded that Torres had not sufficiently addressed the underly

ing issues (related to, for ex ample, mobile patrols, training , personal cell phone use, quality control, and understanding the contract) or convinced the TEP that it could satisfactorily

perform under the follow-on local g uard services contract. B oth of these conclusions are reasonable and well supported.

Torres also alleg e s that the TEP improperly weig h ed the subfactors of the past performance and ex

perience factor. I

n particular, Torres implies that an unacceptable rating on a less important subfactor should not result in an unacceptable rating for the factor as a whole when the more important subfactor is rated as acceptable. As Torres notes, the solicitation provided that the ex perience subfactor was “of g reater importance than” the past performance subfactor. AR 534. However, the solicitation also provided that “[ a] rating of ‘unacceptable’ for any sub-factor . . . may

render the entire Technical Proposal unacceptable.” I d . at 535. According ly , even if the TEP was oblig ated to rate Torres’s proposal as acceptable for the past performance and ex

perience factor as a result of its acceptable rating for Torres’s ex

perience (which it was not 2 4 ) , the TEP was entitled to rate Torres’s technical proposal as unacceptable based only

on the unacceptable past performance rating

.

F inally , the court notes that the fact that Torres offered the lowest total evaluated price is ultimately

irrelevant because the State Department declared its intent to award the contract to the offeror with the lowest-priced, technically acceptable proposal, and Torres’s proposal was deemed technically

unacceptable.

I n sum, Torres has not demonstrated that it is likely to succeed on its claim that the State Department’s decision not to award the follow-on local g uard services contract to Torres lacked a rational basis.

3. Conclusion

As described above, Torres has not established that it is likely to succeed on the merits of its claims that (1) the State Department violated the provisions of the F AR requiring that all offerors be treated in an impartial, fair, and equitable manner and (2) the State Department’s decision not to award the follow-on local g uard services contract to Torres lacked a rational basis. I n other words, Torres has not demonstrated that the State Department’s decision to award the follow-on local g

uard services contract to G4S was arbitrary , capricious, an abuse of discretion, or otherwise not in accordance with the law. Consequently , an award of preliminary injunctive relief would not be appropriate. Nevertheless, for completeness, the court addresses

2 4 I t is entirely

reasonable to suppose a situation in which an offeror’s past performance is so poorly rated that it overwhelms the offeror’s demonstrated ex perience.

- 47-the remainingfactors for establishing the need for injunctive relief: irreparable injury , the balance of harms, and the public interest.

B. Irreparable Injury

W ith respect to the irreparab le injury factor, a protestor “must show that without a preliminary

injunction it will suffer irreparable harm before a decision can be rendered on the merits.” Akal Sec., I

nc. v. United States, 87 F ed. Cl. 311, 319 (2009); accord I B M Corp. v. United States, 118 F ed. Cl. 677, 683-84 (2014). I n its motion for a preliminary injunction, Torres contends that it would be irreparably injured absent a preliminary injunction because it would lose (1) the opportunity to compete for the follow-on local g uard services contract, (2) the profits it anticipates from that contract, and (3) the opportunity to obtain effective relief once G4S beg ins performance of that contract. This court has recog niz ed that a lost opportunity to compete for a contract–and the attendant inability to obtain the profits ex p ected from the contract–can constitute irreparable injury . See, e.g

. , Akal Sec., I nc., 87 F ed. Cl. at 319; Heritag e of Am., L L C v. United States, 77 F e d. Cl. 66, 78 (2007); Overstreet Elec. Co. v. United States, 47 F ed. Cl. 728, 743 (2000). However, G4S is not scheduled to beg in contract performance until Aug ust 31, 2017. Consequently , the lost profits alleg ed by Torres cannot be characteriz ed as an irreparable injury

at this time. Similarly , Torres remains able to obtain effective relief prior to Aug ust 31, 2017–it can seek a permanent injunction. I n short, Torres’s alleg ed injuries are not irreparable.

Torres also alleg e s, in its complaint, that absent a preliminary injunction, G4S will continue its “transition activities unabated during the protest,” and as a result, will beg in offering employ ment to Torres’s g

uards (pursuant to a contractual rig ht of first refusal). Compl. ¶ 88. Torres avers that such offers would reduce the number of g uards at the embassy , “thereby imperiling the performance of the current contract to the detriment of the U.S. embassy and its staff.” I d. However, the depletion of Torres’s g uard force is not an irreparable injury because Torres is not prevented from hiring new g uards to replace the g uards hired by

G4S or, as defendant notes, from jointly employ ing g uards with G4S during the transition period.

C. The Balance of

Harm s

I n addition to considering whether a protestor would suffer an irreparable injury absent a preliminary

injunction, “[ t] he court must balance the harm plaintiff would suffer without preliminary

relief ag ainst the harm that preliminary relief would inflict on defendant and on defendant-intervenor. Generally , if the balance tips in favor of defendant, a preliminary injunction is not appropriate.” Akal Sec., I n c ., 87 F ed. Cl. at 320 (citation omitted); accord Reilly ’s W holesale Produce v. United States, 73 F ed. Cl. 705, 715 (2006). Torres contends that while the injury

it would suffer absent a preliminary injunction is irreparable, the harm that the State Department would suffer from a preliminary injunction is minimal. Defendant disputes Torres’s contention, asserting that Torres’s contract performance remains deficient and is threatening

the security

of the embassy . B ased on the evidence in the administrative record and

- 48-the declarations of Ms. Guillory and Mr. W elch, 2 5 the court ag rees with defendant that the

balance of harms strong ly weig hs in defendant’s favor.

Evidence in the administrative record reflects that Torres’s deficient performance contributed to two major security breaches. F irst, on F ebruary 12, 2017, an unknown individual threw two liquid-filled bottles over the embassy ’s wall. One g uard employ ed by

Torres failed to notice the individual approaching the embassy because she was looking at the screen of her personal cell phone, while another g uard employ ed by

Torres observed the individual approaching

the embassy , throwing the bottles, and leavingthe scene, but did nothing to prevent the incident or apprehend the individual. F urther, throug hout the remainder of the twelve-hour shift, the first g uard continued to use her personal cell phone and watch movies on a governmentprovided computer, ig n oring her duties, and a senior g uard sat beside her, also using his personal cell phone and watching

movies.

Second, at the end of F ebruary 2017, a residence used by the embassy

was burg lariz ed, and an investig ation revealed that the mobile patrol assig ned to that route did not check the residence for a twelve-hour period (during which the burg lary

occurred), when at least three such checks should have occurred. Had the mobile patrol checked the residence as required, the burg lary mig ht have been averted or, at a minimum, the window of investig ation would have been considerably

shorter than twelve hours.

According

to the State Department, a third troublesome incident occurred shortly after it awarded the follow-on local g u ard services contract to G4S. Sometime between J une 9 and J une 11, 2017, Torres’s office was burg lariz ed. Among the items Torres reported stolen were ten laptop computers; a thumb drive; and a safe containing $40 cash, current and old checkbooks, and a banking f

ob. Documents stored on one of the laptop computers–belong ing to Mr. Seg ovia and password-protected–included human resources documents and the ex isting local g uard services contract (including ex hibits). Documents stored on the thumb drive–which was inserted in Mr. Seg ovia’s laptop computer and was not password-protected–included General and Post

2 5 The court is permitted to consider ex trarecord evidence, such as declarations from relevant officials at the procuring ag ency , in assessing the harm that the procuring ag ency would suffer from the imposition of an injunction. See PlanetSpace, I nc. v. United States, 90 F ed. Cl. 1, 5 (2009) (“Standing

apart from evidence supplementing the administrative record . . . are evidentiary

submissions that g o to the prospective relief soug h t in this court. The latter relate to an issue wholly

within the court’s purview. According ly , ‘[ i] t is the responsibility of this [ c] ourt, not the administrative ag e n cy , to provide for factual proceeding s directed toward, and to find facts relevant to, irreparability of harms or prejudice to any party or to the public interest throug h g rant or denial of injunctive relief.’ . . . Evidence respecting relief . . . ‘necessarily

would not be before an ag ency decision-maker effecting a procurement decision such as a source selection award, . . . but would necessarily post date and flow from such ag ency decision.’ According ly
, such evidence is admitted, not as a supplement to the administrative record, but as part of this court’s record.” (citations omitted)).

- 49-Orders, Torres policies, Torres training materials and records, and the ex isting local g uard services contract (including ex hibits). These documents contained the locations of all g uard posts, the g uards’ schedules, and g uard orders for normal and emerg ency operations.

A Torres employee discovered the burg lary o n J une 13, 2017, and reported it to Mr. Seg ovia. Mr. Seg ovia then reported the burg lary to the Paraguay an National Police, Mr. Orth, and Torres’s CEO, but not to any United States g overnment officials. Mr. W elch learned of the burg lary on J une 16, 2017, after an embassy employ ee mentioned a news report reg a rding the discovery of the stolen safe, but was not told until the followingday that contract-related documents had been stolen. Ms. Guillory sent Torres a letter on J

une 19, 2017, describing

the “major” performance deficiencies related to the burg lary : Torres’s failure to file an incident report and Torres’s failure to safeg uard information. 2 6 Def.’s Resp. Ex

. E at 1-2. She advised Torres that these deficiencies would be noted on its CPAR. She also characteriz ed Torres’s failure to notify

the State Department of the burg lary as a “very g rave breach of trust.” I d. at 2.

I n their declarations, both Ms. Guillory and Mr. W elch ex plain that Torres’s recent history of deficient performance–especially as related to the bottle-throwing incident, the residential burg lary , and the burg lary at Torres’s office–has endang ered the safety and security

of five embassy

facilities, six ty residences, and more than 300 embassy employ ees and family members. They

have lost all confidence that Torres can fulfill the contract’s mission to protect United States personnel and property

. All of the incidents described by the State Department reveal serious issues with Torres’s performance, but the court is especially troubled by

Torres’s failure to report the J une 2017 burg lary to the State Department immediately upon its discovery . The documents that Torres believed were stolen included ex tremely sensitive information that would be valuable in planning an attack on the embassy

or its employ ees. 2 7 That it took four day s for Torres to inform the State Department that this information had been stolen sug g ests that Torres does not fully comprehend

2 6 Section H.17 of Torres’s local g uard services contract oblig ates Torres to safeg uard all information related to Torres’s performance of the contract. AR 48-49. General Order 9 requires Torres to submit an incident report to the reg ional security officer within twenty -four hours of an incident that is “not of a routine nature.” I d. at 164.

2 7 I n a declaration prepared on J uly 25, 2017, I vana Paola Tuset Roiz , Torres’s Administrative and Human Resources Manag er, stated: “Contrary to the initial reports and discussions with the [ c ontracting officer’s representative]
, Victor Seg ovia’s laptop was not stolen, but was instead later located in Torres’[ s] main Paraguay an office . . . .” Tuset Roiz Decl. ¶ 7. This statement does not neg ate that Torres (1) believed that the laptop computer and attached thumb drive had been stolen, (2) advised the State Department as late as J une 26, 2017, that the laptop computer and attached thumb drive had been stolen, or (3) did not inform the State Department that it believed that contract-related documents were stolen until four day s after it discovered the burg lary

.

- 50-the importance of its mission to ensure the safety and security of the embassy and its employ e es. 2 8 Consequently , the harm in allowing Torres to continue to perform bey ond the Aug ust 30, 2017 contract ex piration date–the natural result of a preliminary injunction, which would halt the current transition 2 9 –is too g reat to ig nore. The balance of harms is unambig uously in defendant’s favor. 3 0

D. The P ublic Interest

F inally , when “employ

ing the ex traordinary

remedy of injunction,” a court “should pay particular reg ard for the public consequences” of doing so. W einberg er v. Romero-B a rcelo, 456 U.S. 305, 312 (1982). There is no dispute that “the public interest in honest, open, and fair competition in the procurement process is compromised whenever an ag ency abuses its discretion in evaluatinga contractor’s bid.” Overstreet Elec. Co., 47 F e d. Cl. at 744; accord B o na F ide Cong lomerate, I nc. v. United States, 96 F ed. Cl. 233, 242 (2010) (noting the “overriding

public interest in preserving the integ rity

of the procurement process”). “However ‘there is a countervailing

public interest in minimiz ing disruption [ to the ag ency ]

. ’ ” Akal Sec., I nc., 87 F ed. Cl. at 321 (quoting Heritag e of Am., L L C, 77 F ed. Cl. at 78); accord Aero Corp., S.A. v. United States, 38 F ed. Cl. 237, 242 (1997) (“[ A] procuringag ency should be able to conduct procurements without ex cessive judicial infring ement upon the ag e ncy ’s discretion.”). I n this protest, there is a sig nificant public interest in ensuring the safety

of United States citiz ens (and the security

of United States property ) abroad. This interest is endang ered when the federal g overnment lacks confidence that its chosen contractor can provide the necessary protection. According ly , the public interest weig hs in defendant’s favor.

VI. CONCLUSION

F or the reasons set forth above, the court DENIES Torres’s motion to supplement and DENIES Torres’s motion for a preliminary injunction. As discussed after oral arg ument, the parties will provide the court with a proposed schedule for further proceeding s.

2 8 During oral arg

ument, counsel for Torres averred that a Torres employ ee had been directed to inform the State Department of the burg lary , but failed to do so. W hile this may be true, the court cannot accept a factual representation in the absence of a sworn declaration from someone with personal knowledg e

.

2 9 Ms. Guillory

states that the State Department and G4S are “approx imately halfway throug h the transition period” and that “[ s] topping the transition now would essentially require an entirely

new 90 day transition period at the end of the protest . . . .” Guillory Decl. ¶ 26.

3 0 G4S would also be harmed by a preliminary

injunction due to the need to halt the transition.

- 51-The court has filed this ruling under seal. The parties shall confer to determine ag reed-to proposed redactions. Then, by no later than F riday, August 18, 2017 , the parties shall file a joint status report indicating their ag reement with the proposed redactions, attaching a copy of those pages of

the court’s ruling containing proposed redactions, w ith all proposed redactions clearly indicated.

IT IS SO ORDERED.

s/ Marg aret M. Sweeney MARGARET M. SW EENEY J udg e

- 52-