In the United States Court of Federal Claims

No. 14-1115 C

Filed: February 10, 20151

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UNIVERSAL MARINE CO., K.S.C., *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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and *

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KGL INTERNATIONAL FOR PORTS *

WAREHOUSING & TRANSPORTATION *

K.S.C.C., *

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Defendant-Intervenor. *

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John Magnus Scorsine, Watson & Associates, LLC, Aurora, Colorado, Counsel for the Plaintiff.

Jana Moses, United States Department of Justice, Civil Division, Washington, D.C., Counsel for 

the Government.

David C. Hammond, Crowell & Moring LLP, Washington, D.C., Counsel for DefendantIntervenor.

MEMORANDUM OPINION AND FINAL ORDER

BRADEN, Judge.

1 On December 30, 2014, the court forwarded a sealed copy of this Memorandum Opinion 

And Final Order to the parties to delete from the public version any confidential and/or privileged 

information, and note any citation or editorial errors requiring correction. The court has 

incorporated some of these comments and corrected or clarified certain portions herein.

Bid Protest;

Interested Bidder;

Competition In Contracting Act,

31 U.S.C. § 3551;

Lowest Price Technically Acceptable 

Source Selection,

48 C.F.R. § 15.101-2;

Standing.

 
I. RELEVANT FACTUAL BACKGROUND.

2

A. Solicitation No. W52P1J-14-R-0062

In March 2009, the United States Army (“the Army”) awarded Contract W52P1J-09-D0025 to Universal Marine Co., K.S.C. (“Universal Marine”) for the operation of a container yard 

in Kuwait that repairs and refurbishes commercial shipping containers. AR Tab 31b, at 1216. 

On April 24, 2014, the Army solicited Request for Proposals No. W52P1J-14-R-0062 (the 

“RFP”) for the same services as the March 2009 Contract. AR Tab 15, at 88. The RFP was for a 

fixed-price contract that included: one base year; four one-year evaluated options; and one sixmonth option. AR Tab 15, at 88–89. Attachment 0002 of the RFP describes the work 

requirements:

2.5 The contractor shall be required to repair/re-stencil 8 containers per day. In 

the event of a military surge, the contractor will increase output incrementally up 

to a maximum of 33 containers per day. Increments of output are 13, 18, 23, 28 

and 33 depending on the level of need during a military surge period. . . .

2.5.1 The contractor shall have up to 30 days from a notice of military 

surge/increment increase to obtain additional workers and allow time for the 

installation badging process. The 30 days is allowed for each increment of 

increase. . . .

2.6 If the Government is unable to provide 8 containers per day for repair/restencil, the contractor will only be held responsible to repair/re-stencil the number 

of containers provided by the Government that day. . . .

AR Tab 18a.1, at 435–36. 

To select an awardee, the Army used a lowest price technically acceptable (“LPTA”) 

source selection process that evaluated three factors: Technical; Past Performance; and Price. AR 

Tab 15, at 89. Attachment 0005 describes the evaluation methodology for each factor:

a) Technical Capability Factor. The three (3) Subfactors of the Technical Proposal 

[technical capabilities, quality, and management] are considered of equal weight 

and will be evaluated as such. An Acceptable or Unacceptable rating will be 

assigned to each of the three (3) Subfactors with supporting narrative substantiating 

the basis for each rating. The Government will only evaluate Past Performance on 

those proposals that receive an “Acceptable” for the Technical Capability Factor.

b) Past Performance Factor. Past Performance information will be evaluated and 

an Acceptable or Unacceptable rating will be assigned with supporting narrative 

2 The facts discussed herein were derived from: the November 25, 2014 Administrative 

Record (“AR Tabs 1–59,” comprised of pages 1–1946) and December 9, 2014 Corrected 

Administrative Record (“AR Tabs 60–61,” comprised of pages 1947–1961).

2

 
substantiating the basis for the rating. In the event an Offeror has no recent, relevant 

past performance, a rating of Acceptable will be assigned. The Government will 

only evaluate Price on those proposals that receive an “Acceptable” on the Past 

Performance Factor.

c) Price Factor. Price will be evaluated IAW Factor III – Price (See 5.3).3

AR Tab 24a.1, at 788–89. 

Thus, an offeror must clear three successive hurdles to be awarded the contract: First, an

offeror must obtain an “Acceptable” rating in Technical Capability and an “Acceptable” rating in 

Past Performance, and then must propose the lowest price. AR Tab 24a.1, at 788–89. 

Attachment 0005 provides, however:

In the case of an Offeror without a record of relevant past performance or for whom 

information on past performance is not available or so sparse that no meaningful 

past performance rating can be reasonably assigned, the Offeror may not be 

evaluated favorably or unfavorably on past performance (see FAR 

15.305(a)(2)(iv)). Therefore, the Offeror shall be determined to have unknown past 

performance. In the context of acceptability/unacceptability, “unknown” shall be 

considered “acceptable.”

AR Tab 24a.1, at 791.

The FRP also included a list of Federal Acquisition Regulation (“FAR”) clauses. AR Tab 

15, at 103–04. Next to each clause is a short line with the applicable FAR clauses incorporated by 

reference and signified with an “X” on the adjacent line. AR Tab 15, 103–04. The line next to 

FAR 52.222-17 (Nondisplacement of Qualified Workers), however, was not checked. AR Tab 15, 

at 103.

After ten amendments to the RFP, the Army set a closing date of August 15, 2014 for 

proposal submissions. AR Tab 25, at 804–05. 

B. The Proposals.

Four offerors submitted timely proposals: KGL International For Port, Warehousing and 

Transportation, K.S.C.C. (“KGL”); [REDACTED]; [REDACTED]; and Universal Marine. AR 

Tab 46, at 1795. On August 21, 2014, after holding discussions with the offerors, the Army 

received final revised proposals. AR Tab 46, at 1795, 1798. 

All four proposals received an “Acceptable” rating for both the Technical and Past 

Performance factors. AR Tab 46, at 1795–1801. 

3 Section 5.3 provides specific pricing evaluation criteria not relevant here. See AR Tab 

24a.1, at 792–93.

3

 

number of technicians shall be mobilized and ready for operations 24 hours, 7 days 

a week.

AR Tab 29b, at 1025.

C. The Award.

On September 19, 2014, the Army notified Universal Marine that the contract was awarded

to KGL. AR Tabs 53–54, at 1876–92. On September 22, 2014, Universal Marine requested and 

later received a post-award briefing. AR Tab 55b, at 1894; AR Tab 56c, at 1918–28.

II. RELEVANT PROCEDURAL HISTORY.

A. The Government Accountability Office Protest.

On September 29, 2014, Universal Marine filed a protest with the Government 

Accountability Office (“GAO”), arguing that: (1) “[KGL’s] proposed approach does not satisfy 

the FRP requirements and the Government failed to reasonably assess and evaluate [KGL’s] 

Technical Proposal”; (2) the Army “failed to properly evaluate [KGL’s] approach for hiring 

incumbent employees”; (3) the Army “failed to properly evaluate [Plaintiff’s] and [KGL’s] 

pricing”; and (4) the Army “failed to provide the required minimal consideration to [Plaintiff’s] 

and [KGL’s] pricing.” AR Tab 57, at 1929–43; Matter of Universal Marine Co. K.S.C., B409886.2 (Comp. Gen. Oct. 24, 2014).

On October 14, 2014, the GAO dismissed Universal Marine’s protest, because it “is not an 

interested party.” AR Tab 59, at 1945.

B. United States Court of Federal Claims.

On November 17, 2014, Universal Marine filed a Complaint in the United States Court of 

Federal Claims, under seal, challenging the contract award to KGL. On that same day, Universal 

Marine also filed a Motion For Temporary Restraining Order and a Motion To File Under Seal. 

On November 18, 2014, the court held a status conference and filed a Protective Order. On 

November 25, 2014, the Government filed the Administrative Record, under seal. On December 

9, 2014, the Government filed a corrected Administrative Record, under seal.

On December 3, 2014, KGL filed an unopposed Motion To Intervene that the court granted 

on December 4, 2014. On that date, Universal Marine filed a Motion For Judgment On The 

Administrative Record under seal (“Pl. Mot.”).

On December 10, 2014, the Government and KGL each filed separate Cross-Motions 

(“Gov’t Mot.” and “KGL Mot.”). On December 15, 2014, Universal Marine filed a Response to 

the Government’s Cross-Motions (“Pl. Resp.”). On December 17, 2014, the Government and 

KGL each filed separate replies (“Gov’t Reply” and “KGL Reply”).

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III. DISCUSSION.

A. Jurisdiction.

The United States Court of Federal Claims is required to make a threshold determination 

regarding jurisdiction. See Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (“[A]t 

the outset [the court] shall determine . . . whether the Constitutional provision, statute, or regulation 

is one that is money-mandating. If the court’s conclusion is that the Constitutional provision, 

statute, or regulation meets the money-mandating test, the court shall declare it has jurisdiction 

over the cause, and shall then proceed with the case in the normal course.”). 

The United States Court of Federal Claims has jurisdiction:

to render judgment on an action by an interested party objecting to a solicitation by 

a Federal agency for bids or proposals for a proposed contract or to a proposed 

award or the award of a contract or any alleged violation of statute or regulation in 

connection with a procurement or a proposed procurement.

28 U.S.C. § 1491(b)(1).

The November 17, 2014 Complaint alleged several violations of law and/or regulation “in 

connection with” this procurement. Id. Count I alleges that the Army’s evaluation process was 

flawed under both the Competition In Contracting Act, 31 U.S.C. § 3551 et seq. (“CICA”), and 10 

U.S.C. § 2302(3). Count I seeks declaratory relief. Compl. ¶¶ 25–32. Count II seeks permanent 

injunctive relief. Compl. ¶¶ 33–38. As such, the November 17, 2014 Complaint alleges sufficient 

facts of a money-mandating claim to satisfy 28 U.S.C. § 1491(b)(1), and places at issue the alleged

violations of law and/or regulation “in connection with” this procurement.

B. Standard of Review.

Pursuant to the Tucker Act, as amended by the Administrative Dispute Resolution Act, 

Pub. L. No. 104-320 § 12, 110 Stat. 3870, 3874 (Oct. 19, 1996), the United States Court of Federal 

Claims is authorized to review challenges to agency decisions, pursuant to the standards set forth 

in the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. See 28 U.S.C. § 1491(b)(4) (“In 

any action under this subsection, the courts shall review the agency’s decision pursuant to the 

standards set forth in section 706 of title 5.”); see also 5 U.S.C. § 706(2)(A) (“The reviewing court 

shall . . . hold unlawful and set aside agency action, findings, and conclusions found to 

be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]”); 

Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004) (“Among the 

various APA standards of review in section 706, 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 agency action if it 

is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”) 

(citations omitted); Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009) 

(same). 

When a bid protest is based on a regulatory or procedural violation, i.e., “not in accordance 

with law,” our appellate court also has imposed an additional requirement that “the disappointed 

bidder must show a clear and prejudicial violation of applicable statutes or regulations.” Axiom 

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Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (internal quotations and 

citations omitted). This burden is even greater when the procurement is a “best value” 

procurement, as is the case here.4

 See Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 

1330 (Fed. Cir. 2004) (“[A]s the contract was to be awarded based on ‘best value,’ the contracting 

officer had even greater discretion . . . . [T]he relative merit of competing proposals is primarily a 

matter of administrative discretion.”) (citations omitted); see also TRW, Inc. v. Unisys Corp., 98 

F.3d 1325, 1327 (Fed. Cir. 1996) (“In determining whether the agency has complied with the 

regulation authorizing best value procurements, the [reviewing authority] may overturn an 

agency’s decision if it is not grounded in reason.”).

If an award decision is challenged because it was made without a rational basis, the trial 

court must determine “whether the contracting agency provided a coherent and reasonable 

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

showing that the award decision had no rational basis.” Impresa Construzioni Geom. Domenico 

Garufi v. United States, 238 F.3d 1324, 1332–33 (Fed. Cir. 2001) (international citations and 

quotations omitted); see also Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282, 1287 

(Fed. Cir. 2010) (“[W]e must sustain an agency action unless the action does not evince rational 

reasoning and consideration of relevant factors.”) (internal alterations, quotations, and citations 

omitted); Weeks Marine, 575 F.3d at 1368–69 (“We have stated that procurement decisions invoke

highly deferential rational basis review . . . . Under that standard, we sustain an agency action 

evincing rational reasoning and consideration of relevant factors.”) (internal alterations, 

quotations, and citations omitted).

In the alternative, if an award decision is challenged on the grounds that an agency acted 

in an arbitrary or capricious manner, the court may intervene “only in extremely limited 

circumstances.” United States v. John C. Grimberg Co., Inc., 702 F.2d 1362, 1372 (Fed. Cir. 

1983). “Courts have found an agency’s decision to be arbitrary and capricious when the agency 

‘entirely failed to consider an important aspect of the problem, offered an explanation for its 

decision that runs counter to the evidence before the agency, or [the decision] is so implausible 

that it could not be ascribed to a difference in view or the product of agency expertise.’” Ala.

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

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

In this case, the parties have filed Cross-Motions For Judgment On The Administrative 

Record, requiring the court to conduct a proceeding akin to an expedited trial on the record. See 

RCFC 52.1; see also Bannum, 404 F.3d at 1356 (“[T]he judgment on an administrative record is 

properly understood as intending to provide for an expedited trial on the record.”). The existence 

4 There are two kinds of “best value” selection processes: the “best value tradeoff,”

pursuant to 48 C.F.R. § 15.101-1, and the Lowest Price Technically Acceptable (“LPTA”), 

pursuant to 48 C.F.R. § 15.101-2. The April 24, 2014 RFP was a LPTA selection. AR Tab 15, at 

89. As a result, “[t]radeoffs are not permitted.” 48 C.F.R. § 15.101-2(b)(2). A proposal is per se

the best value if it meets the selection criteria and proposes the lowest price. See 48 C.F.R. 

§ 15.101-2(a) (“The lowest price technically acceptable source selection process is appropriate 

when best value is expected to result from selection of the technically acceptable proposal with the 

lowest evaluated price.”).

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of a material issue of fact, however, does not prohibit the court from granting a motion for 

judgment on the administrative record, although the court has not conducted an evidentiary 

proceeding. Bannum, 404 F.3d at 1357 (authorizing the court to make “factual findings under 

RCFC [52.1]5 from the [limited] record evidence as if it were conducting a trial on the record”). 

C. Plaintiff’s December 3, 2014 Motion For Judgment On The Administrative 

Record.

Universal Marine argues that the Army “failed to conduct an evaluation in accordance with 

its stated criteria and appropriate laws and regulations; this created a systemic failure of the 

evaluation process and calls into question the evaluations of all offerors.” Pl. Mot. at 12. 

Specifically, five errors are alleged:

1) “KGL’s proposed management approach does not satisfy the RFP requirements and the 

Government failed to reasonably assess and evaluate KGL’s technical proposal.” Pl. 

Mot. at 12.

2) “The Government failed to properly evaluate KGL’s approach for hiring incumbent 

employees.” Pl. Mot. at 14.

3) “The Government failed to properly evaluate Plaintiff’s and KGL’s pricing.” Pl. Mot. 

at 16.

4) “The Government failed to provide the required minimal consideration to KGL’s and 

Plaintiff’s pricing.” Pl. Mot. at 18.

5) “Past Performance Evaluation was Skewed in favor of Unknowns, Further Increasing 

Contracting Risk.” Pl. Mot. at 20.

D. The Government’s December 10, 2014 Motion To Dismiss.

1. The Government’s Argument.

The Government argues that Universal Marine lacks standing, because it finished fourth 

and has not challenged the offerors who finished second and third. Gov’t Mot. at 11 (“[Universal 

Marine] has provided no arguments regarding the intervening offerors that placed second-in-line 

and third-in-line for award.”). Thus, even if KGL’s award were disqualified, Universal Marine

still “cannot show that it had a substantial chance of being awarded the contract when it proposed 

the highest price.” Gov’t Mot. at 11. The Army properly evaluated the four offerors and ranked 

them by price. Gov’t Mot. at 11. Thus, “if [Universal Marine] were to be awarded the relief it 

seeks, and the [c]ourt were to set aside the contract to KGL, the agency will—in accordance with 

5 In 2006, RCFC 56.1 “Review of a Decision on the Basis of the Administrative Record” 

was repealed and replaced with RCFC 52.1, to conform to the United States Court of Appeals for 

the Federal Circuit’s decision in Bannum, 404 F.3d at 1354 (holding that the court should “make 

factual findings from the record evidence as if it were conducting a trial on the record”). See RCFC 

52.1, 2006 Rules Committee Notes.

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the solicitation—make an award to [REDACTED], whose price was $[REDACTED] less than 

[REDACTED] proposal and $[REDACTED] less than [Universal Marine’s] proposal.” Gov’t 

Mot. at 11. In addition, Universal Marine has alleged no error that would disqualify [REDACTED]

or [REDACTED] proposals, and therefore lacks standing, because it “has no substantial chance of 

being awarded the contract.” Gov’t Mot. at 11.

Moreover, Universal Marine “cannot show that it was prejudiced by a significant error in 

the procurement process.” Gov’t Mot. at 12. To show prejudice, a protestor must establish “that 

there was a substantial chance it would have received the contract award but for th[e] error.” Alfa 

Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999). Universal Marine

cannot show a substantial chance of receiving the award and consequently cannot demonstrate 

prejudice. Gov’t Mot. at 12. 

2. Plaintiff’s Response.

Universal Marine responds that “the fundamentals of [its] standing arguments have already 

been laid out and presented [in Plaintiff’s Motion For Judgment On The Administrative Record].” 

Pl. Resp. at 2. Universal Marine contends that “the issue is not whether an [o]fferor is ‘next in 

line,’ but whether the [o]fferor has a reasonable expectation to receive an award.” Pl. Mot. at 9 

(citing ITT Elec. Sys., B-406405 (May 21, 2012) for the proposition that “because the [p]laintiff 

submitted a proposal and protested[, it] was therefore ‘in line’ for [the] award”). Being “in line” 

for an award means “being able to meet the [RFP] requirements such that the Plaintiff is an eligible 

bidder and potential awardee on the contract.” Pl. Mot. at 10. In addition, Universal Marine

challenges the Army’s technical evaluation as it resulted in flawed technical proposals improperly

receiving “Acceptable” ratings. Pl. Mot. at 10. And, “if one asserts that the analysis of ‘technically 

acceptable’ is flawed, then the rack and stack of [o]fferors by price is necessarily flawed as well.” 

Pl. Mot. at 11. 

In its Motion For Judgment On The Administrative Record, Universal Marine argues it 

was prejudiced by complying with FAR 52.222-17 (hiring incumbent workers) when no other 

offeror complied with that regulation. Pl. Mot. at 12. But, in its Reply, Plaintiff concedes that the 

RFP did not require compliance with FAR 52.222-17. Pl. Reply at 7 (“In this, the Government is 

accurate and [Plaintiff] is mistaken.”). 

Finally, Universal Marine argues that the Army and KGL “would like to make the calculus 

of standing and interest party overly simplified.” Pl. Reply at 3. Determining standing requires 

examining the merits of the protest, not just a “blind reliance on the stacking and arraying of the 

‘acceptable’ proposals.” Pl. Reply at 4 (citing Hyperion, Inc. v. United States, 115 Fed. Cl. 541, 

550 (2014) (“If the government indeed erred in the ways [the plaintiff] alleges, [the plaintiff] would 

have received the award but for the errors. The government’s arguments to the contrary relate to 

the merits of [the plaintiff’s] contentions[.]”)). Universal Marine is not required to “dissect each 

proposal in the array that is above it, especially if it demonstrates a systemic flaw in the evaluation

process[.]” Pl. Reply at 4.

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3. The Court’s Resolution.

As a threshold matter, a plaintiff contesting the award of a federal contract must establish 

that it is an “interested party” to have standing under 28 U.S.C. § 1491(b)(1). See Myers 

Investigative & Sec. Servs. v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002) (“[S]tanding is 

a threshold jurisdictional issue.”). The United States Court of Appeals for the Federal Circuit has 

construed the term “interested party” under 28 U.S.C. § 1491(b)(1) as synonymous with 

“interested party” under CICA, 31 U.S.C. § 3551(2)(A) (2006). See Rex Serv. Corp. v. United

States, 448 F.3d 1305, 1307 (Fed. Cir. 2006) (citing decisions adopting the CICA definition of 

“interested party” for 28 U.S.C. § 1491(b)(1) purposes). A two-part test is applied to determine 

whether a protestor is an “interested party.” The protestor must show that: “(1) it was an actual or 

prospective bidder or offeror, and (2) it had a direct economic interest in the procurement or 

proposed procurement.” Distrib. Solutions, Inc. v. United States, 539 F.3d 1340, 1344 (Fed. Cir. 

2008) (citations omitted). A third test has added that a protestor must show the alleged errors in 

the procurement were prejudicial. Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1378–

79 (Fed. Cir. 2009) (“It is basic that because the question of prejudice goes directly to the question 

of standing, the prejudice issue must be reached before addressing the merits.”) (internal citations 

and quotations omitted); see also Myers, 275 F.3d at 1370 (“[P]rejudice (or injury) is a necessary 

element of standing.”). A party demonstrates prejudice when “it can show that but for the error, it 

would have had a substantial chance of securing the contract.” Labatt, 577 F.3d at 1378. 

Importantly, a proper standing inquiry must not conflate the requirement of “direct economic 

interest” with prejudicial error. Id. at 1380 (examining economic interest but excluding prejudicial 

error from the standing inquiry “would create a rule that, to an unsuccessful but economically 

interested offeror in a bid protest, any error is harmful”).

In this case, Universal Marine submitted a proposal in response to the RFP. AR Tabs 31a–

d.1, at 1191–1277. As an actual bidder, it satisfies the first element of the “interested party” test. 

See Distrib. Solutions, Inc., 539 F.3d at 1344 (holding that a protestor must show that “it was an 

actual or prospective bidder or offeror”). 

But, Universal Marine did not satisfy the second element, i.e., that it “had a direct economic 

interest in the procurement.” Distrib. Solutions, Inc., 539 F.3d at 1344. Direct economic interest 

requires a showing that but for the alleged error, Universal Marine had a “substantial chance” of 

winning the contract. See Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996) 

(holding that for a protestor “to prevail it must establish not only some significant error in the 

procurement process, but also that there was a substantial chance it would have received the 

contract award but for that error”); see also Labatt, 577 F.3d at 1378–79 (same). Universal 

Marine’s proposed price was the highest of the four proposals. AR Tab 46, at 1795–1801. Thus, 

to have standing, it would have to challenge the bona fides of each of the other three offeror’s 

eligibility or the solicitation as a whole. See United States v. IBM Corp., 892 F.2d 1006, 1010 

(Fed. Cir. 1989) (upholding the Government’s argument that the plaintiff “could not receive the 

contract even if its protest were granted, because its bid ranked fourth-lowest . . . [and] it did not 

challenge either the solicitation itself or the eligibility of the intervening bidders”). Most of 

Universal Marine’s challenges concern only the awardee—KGL. See, e.g., Pl. Mot. at 12 (“KGL’s

proposed management approach does not satisfy the FRP requirements and the Government failed 

to reasonably assess and evaluate KGL’s technical proposal.”); Pl. Mot. at 14 (“The Government 

failed to properly evaluate KGL’s approach for hiring incumbent employees.”); Pl. Mot. at 16 

10
(“The Government failed to properly evaluate Plaintiff’s and KGL’s pricing.”); Pl. Mot. at 18 

(“The Government failed to provide the required minimal consideration to KGL’s and Plaintiff’s 

pricing.”) (emphasis added). Based on these four challenges, even if the court were to set aside 

the award to KGL, the award would go to the second-place offeror, [REDACTED]. Gov’t Mot. 

at 11. Without any challenge to the intervening offerors, Universal Marine cannot prevail. See 

IBM Corp., 892 F.2d at 1010.

Universal Marine alleges one issue that it contends taints the solicitation as a whole, i.e., 

the “Past Performance Evaluation was Skewed in favor of Unknowns, Further Increasing 

Contracting Risk.” Pl. Mot. at 20. Because this issue implicates the evaluation of all three other

offerors, Universal Marine would have standing on this basis. See IBM, 892 F.2d at 1010 (holding 

that a plaintiff has standing when challenging the solicitation). But, here Universal Marine failed 

to raise this Past Performance argument with the contracting officer prior to the close of the bidding 

process. Gov’t Mot. at 9 n.5. “[A] party who has the opportunity to object to the terms of a 

government solicitation containing a patent error and fails to do so prior to the close of the bidding 

process waives its ability to raise the same objection afterward in a § 1491(b) action in the Court 

of Federal Claims.” Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 

2007). Here, Universal Marine did not contend that it objected to the Past Performance evaluation

prior to the close of the bidding process. Instead, it argues that the alleged error was not patent, 

and that the FRP’s description of the Past Performance evaluation methodology “was not sufficient 

notice to make [Universal Marine] aware of the fact that ‘Acceptable’ proposals were going to be 

actually rated the same for past performance.” Pl. Reply at 6. Although Universal Marine cited 

no precedent in support of its argument, Attachment 0005 clearly states that offerors without 

relevant past performance will receive an “unknown” determination that translates to an 

“Acceptable” rating. As such, in this case, there is no latent ambiguity sufficient to overcome Blue 

& Gold Fleet’s requirement that an offeror lodge an objection to the solicitation terms before the 

close of the evaluation process.

As for Universal Marine’s reliance on Hyperion, Inc. v. United States, 115 Fed. Cl. 541 

(2014), it is misplaced, even though some facts are similar to this case. Hyperion filed a postaward protest as the highest-priced of four “Acceptable” offerors in an LPTA solicitation. Id. at 

544. However, the Hyperion “contend[ed] that all three [other] offerors failed to meet [certain 

provisions] and failed to include required [provisions].” Id. Hyperion went on to allege particular

defects in each of the other three proposals. Id. “In Hyperion’s view, it was the only technically 

acceptable offeror and should have received the award.” This case, however, is distinguishable. 

Here, four out of Universal Marine’s five arguments are specific to KGL, and the problem 

identified with the solicitation was waived under Blue & Gold Fleet. Thus, even though “proving 

prejudice for purposes of standing merely requires ‘allegational prejudice,’” Universal Marine has 

not alleged facts that, if true, would create a “substantial chance” that it would be awarded the 

contract. See Hyperion, 115 Fed. Cl. at 550.

For these reasons, the court has determined that Universal Marine lacks standing to seek 

an adjudication of this bid protest.

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IV. CONCLUSION.

For reasons discussed herein, Plaintiff’s December 3, 2014 Motion For Judgment On The 

Administrative Record is denied. The Government’s and KGL’s December 10, 2014 CrossMotions are granted. Accordingly, the Clerk is direct to enter judgment on behalf of the 

Government and KGL.

No costs.

IT IS SO ORDERED.

s/ Susan G. Braden

SUSAN G. BRADEN

Judge

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