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In the United States Court of Federal Claims

No. 14-1129C

(Filed: June 1, 2015)

*Opinion originally filed under on May 11, 2015

ROTECH HEALTHCARE, INC., 

Plaintiff,

v.

THE UNITED STATES,

Defendant,

and

COMMUNITY SURGICAL 

SUPPLY, INC., 

 Defendant-Intervenor.

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Bid Protest; Technical Evaluation; Past 

Performance Evaluation; Price 

Evaluation; Deference to Agency; 

Requirements in the Solicitation; 

Denial of Motion to Supplement 

Administrative Record 

Kyle R. Jefcoat, Washington, DC, for plaintiff. David. R. Hazelton, Dean W. 

Baxtresser, Kellyn M. Goler and Yannick B. Morgan, Washington, DC, of counsel. 

Christopher K. Wimbush, Civil Division, United States Department of Justice, 

Washington, DC, with whom were Joyce R. Branda, Acting Assistant Attorney General, 

Robert E. Kirschman, Jr., Director, and Deborah A. Bynum, Assistant Director. Jeanne S. 

Morris, Office of Regional Counsel, U.S. Department of Veterans Affairs, Leeds, MA, of 

counsel. 

Daniel R. Forman, Washington, DC, for defendant-intervenor. Joshua I. Skora

and Lisa K. Smith, Amarillo, TX, of counsel. 

OPINION ON CROSS-MOTIONS FOR JUDGMENT ON THE 

ADMINISTRATIVE RECORD

FIRESTONE, Judge.
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Plaintiff Rotech Healthcare, Inc. (“Rotech”), the incumbent contractor, is 

challenging the decision of defendant Department of Veterans’ Affairs (“VA,” “agency,” 

or “government”) to award a contract to defendant-intervenor Community Surgical 

Supply, Inc. (“CSS”).1 Pursuant to Rule 52.1(c)(2) of the Rules of the United States 

Court of Federal Claims (“RCFC”), the parties have filed cross-motions for judgment on 

the administrative record. Rotech has also filed a motion to supplement the 

administrative record. 

This case concerns a contract to provide home health care services in New 

England. During the evaluation process, the agency awarded Rotech and CSS the same 

rating on the Technical and Past Performance factors, and CSS’s bid was approximately 

$5.6 million less than Rotech’s final bid. Therefore, the VA found that CSS proposal 

represented the best value to the government and awarded the contract to CSS. Rotech 

argues that CSS’s ratings on the Technical and Past Performance factors were 

unsupported by CSS’s experience and bid, and that the agency did not follow the terms of 

the solicitation in giving CSS its high ratings on those factors. In particular, Rotech 

argues that CSS would not have been able to complete a transition in the time period 

specified by the contract, and therefore the company’s ratings were unreasonable. Rotech 

also argues that CSS’s price was so low that it was unrealistic for the job. Rotech asserts 

that the solicitation required the agency to perform a price realism analysis, and that the 

VA failed to perform such an analysis.

 

1 The court will refer to CSS and the government collectively as “the defendants.”
3

For the reasons that follow, the court now GRANTS the government and CSS’s 

respective motions for judgment on the administrative record and DENIES Rotech’s 

motion for judgment on the administrative record. The record demonstrates that the VA 

acted reasonably and complied with the terms of the solicitation in its evaluation of 

CSS’s bid. The court also DENIES Rotech’s motion to supplement the administrative 

record. The documents Rotech seeks to add to the record, which only came into 

existence after the agency made its decision to award the contract to CSS, do not shed 

light on any issue this court must decide in this case, and thus are properly excluded. 

I. FACTS

A. The Solicitation 

On January 17, 2014, the VA issued Request for Proposals (“RFP” or “the 

solicitation”) No. VA241-14-R-0003 for a contract to provide home respiratory supplies 

and services to veterans and beneficiaries in all the states in New England, which is 

classified by the Veterans Integrated Service Network (“VISN”) as geographical area No. 

1, or “VISN 1.” AR 48. The VISN 1 contractor is to run the VA’s Home Respiratory 

Care Program, Pulmonary Section, Medical Service, at all VISN 1 facilities. The VISN 1 

contractor admits patients into the Home Respiratory Care Program after performing 

assessment of their clinical condition, furnishes home oxygen and respiratory equipment, 

conducts in-home pulmonary assessments and re-assessments by respiratory therapists, 

sets up and completes overnight oximetries, and provides documentation of patient 

education. Id. at 52. The RFP stated that the contractor “shall provide all transportation, 

labor, fuel, parts, and supervision for the furnishing of home respiratory care as identified 
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within the Statement of Work.” Id. The RFP contemplated the award of a five-year firm, 

fixed-price, indefinite quantity contract. Id. at 156. 

The RFP specified that the contract would be awarded on a best value tradeoff 

basis, and proposals were to be evaluated under three factors: (1) Technical; (2) Past 

Performance; and (3) Price. Id. at 135. The RFP explained that non-price factors, when 

combined, “are significantly more important than price,” and stated that after all the 

factors are considered together the contract “may be awarded to other than the lowest 

priced offeror or other than to the highest technically rated proposal.” Id. at 140. 

Though the evaluators were instructed to consider multiple subfactors when awarding a 

rating for the Past Performance and Technical factors, no ratings were to be given on the 

subfactor level, nor would an offeror receive a rating from any individual evaluator. See

id. at 41. Instead, “[r]atings are given by team consensus and at the Factor level only.” 

Id.

1. Technical Factor

The Technical factor is further divided into five subfactors: (1) Management 

Approach; (2) Personnel Qualifications; (3) Operations & Quality Assurance; (4) 

Contingency Plan & Security; and (5) Veterans Preference. Id. 137. Each subfactor 

listed multiple elements that the proposal was to discuss, and required bidders to provide 

information on, among other things, its plan to ensure continuity and care; procedures 

regarding compliance with VA rules; and information about personnel (including 

respiratory therapists and management) who would implement the contract. Id. at 135-

138. 
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Offerors were assigned a Technical Factor rating on a five-level scale. The 

possible ratings were, from highest to lowest, “Blue,” “Green,” “Yellow,” “Pink,” and 

“Red.” Id. at 138. The highest rating, “Blue,” represents a proposal that “meets all 

solicitation requirements, demonstrates an excellent understanding of the requirements 

and offers approaches that offer significant advantage to the Government.” Id. . The 

worst Technical Factor rating a proposal could receive was “Red,” which represents a 

proposal that “demonstrates little to no understanding of the requirements; or approach 

fails to adequately meet acceptable performance expectations.” Id. A “Yellow” rating 

was the lowest rating a proposal could receive and still be considered technically 

acceptable. Id.

2. Past Performance Factor

In order to determine an offeror’s score on the Past Performance factor, the RFP 

required the government to conduct a two-part analysis of the (1) relevancy of the 

bidder’s past experiences and (2) the quality of the bidder’s past performance. Id. at 139. 

Offerors were instructed to “identify three or more Federal, State, or private sector contracts 

of similar type, scope, size, and complexity that are ongoing, and/or have been completed 

within the last five years.” Id. In order to determine relevancy, the VA instructed that all

proposals were to “[p]rovide the details of those contracts to include dates of contract, dollar 

value, patients served and scope of services provided.” Id. If the offeror did not have a 

record of relevant past performance, it would not necessarily be fatal to the offeror’s 

proposal; however, “an offeror with no record of past performance, while rated ‘neutral’ in 

past performance, may not be the most advantageous proposal to the government all factors 
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being considered.” Id. The quality of an offeror’s past performance would then be assessed 

based on the references the offeror provided, with the government instructed to consider 

“whether or not they believe (1) that the offeror was capable, efficient, and effective, (2) 

that the offerors performance conformed to the terms and conditions of its contract, (3) 

that the offeror was reasonable and co-operative during performance, and (4) that the 

offeror was committed to customer satisfaction.” Id. Offerors would then be assigned 

an overall past performance rating ranging from “Very Low Risk” to “High Risk,” with 

offerors lacking relevant past experience rated as “Neutral.” Id. at 140.

3. Price Factor

Pursuant to the RFP, the Price Factor was weighed less than the Technical and 

Past Performance factors. Id. at 140. The solicitation instructed that the Source Selection 

Authority (SSA) would evaluate the proposed price for reasonableness. The government 

provided an Independent Government Cost Estimate (“IGCE”) for the procurement of

$51,950,000, which was not broken down by CLIN, in order to test the proposals for 

reasonableness. Id. at 36. Id. However, the Source Selection Evaluation Board (“SSEB”) was 

instructed to “evaluate pricing only as to whether it is realistic to the effort.” Id. The RFP 

explained that “[u]nrealistically low proposed prices may be grounds for eliminating a 

proposal from competition either on the basis that either the offeror does not understand 

the requirement or the offeror has made an unrealistic offer.” Id. The solicitation asked 

bidders to fill in unit prices on a Contract Line Item Number (“CLIN”) table. Id. The 

solicitation did not require bidders to provide supporting data or a narrative explanation 

for the bidder’s price for each CLIN. 
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B. The Evaluation and Best Value Determination

The VA received proposals from six companies: Rotech; CSS; [. . .]; [. . .]; [. . .];

and [. . .] by the solicitation’s close date of February 19, 2014. No offerors challenged 

the terms of the solicitation prior to submitting a proposal or before the award of the 

contract. All proposals first evaluated by the individual members of the SSEB. Id. at

4267. The SSEB then “met after evaluation of each proposal to achieve general 

consensus for each offeror and then provided a recommendation to the SSA.” Id. 

Rotech and CSS both received “Blue” ratings on the Technical factor. [. . . ] and [. 

. .] received “Yellow” ratings, the lowest acceptable rating. Id. at 4267. [. . .] and [. . .]

each received unacceptable “Pink” ratings on the Technical element of their proposal. Id. 

The VA found that CSS and Rotech each had “very relevant” experience that, when 

combined with the quality assessment, resulted in a “Low Risk” proposal. Id. at 4267; id.

at 7461 (CSS relevancy assessment); id. at 6972 (Rotech relevancy assessment). The other 

four offerors received either “Neutral Risk” or “Average Risk” ratings. Id. 

After initial evaluations, the VA performed a competitive range down-select. The 

VA decided to eliminate all proposals rated “Yellow” or lower on the Technical factor, 

and all proposals with Neutral or Average Risk ratings on Past Performance. Id. at 4267. 

As a result, only CSS and Rotech remained in the running. During this round of 

evaluations, CSS received eight questions on Technical factor issues, including questions 

regarding facilities and personnel in VISN. Id. at 4268. In response to the VA’s concern 

that CSS’s proposal did not include enough facilities to serve patients in Maine, CSS 

agreed to increase the number of facilities it would open in that state. Id. The Agency 
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determined that CSS’s discussions response resolved all concerns and/or ambiguities in 

the CSS technical proposal. Id. at 4268. CSS received no questions with respect to its 

proposed price, which remained unchanged throughout the process.

Rotech received six questions relating to its technical proposal and one relating to 

its pricing. Id. The price inquiry stated that the VA was “unable to back into your 

pricing proposal” and asked Rotech to “verify [its] pricing and resubmit.” Id. at 4369. 

CSS’s price of $46.3 million ranked third out of six offerors, while Rotech’s price of 

$62.8 million was the highest. Id. at 4247 (Price Negotiation Memo). CSS’s pricing was 

the closest to the IGCE of any of the six original offerors. Id. On July 29, 2014, the VA 

informed Rotech that “their pricing was too high” and asked both CSS and Rotech to 

submit their best proposal. Id. at 4270. Rotech subsequently reduced its price from 

$62.8 million to $51.9 million. Id. at 4214-4244. 

In the evaluation of final proposal revisions, Rotech and CSS’s Past Performance 

and Technical factor rankings carried forward to the final round. The following chart, 

included in the Best Value Determination, summarizes the SSEB’s findings:

[. . .] [. . .] [. . .] [. . .]

[. . .] [. . .] [. . .] [. . .]

[. . .]
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Id. at 4267. In the combined non-price evaluation, CSS received 34 strengths and two 

weaknesses.

2

 Id. at 4259-61. Rotech received 21 strengths and no weaknesses. Id. at

4266-67. 

Both Rotech and CSS received ratings of “Blue,” on the Technical factor, which 

was the best technical rating available, and a “Low-Risk” rating on the Past Performance 

factor. Id. at 4267. In addition, CSS’s proposed price of 10.8% lower than Rotech’s 

reduced final price proposal. Id. As a result, the Agency determined that CSS’s proposal 

presented the “best value” to the Government:

This offer [CSS] represented the best value to the government based on 

Best Value to the government by offering the Highest combined Technical 

and Past Performance Rating along with the lowest price determined to be 

fair and reasonable by the contracting officer.

Id. at 4270. On August 1, 2014, the VA notified the offerors that the contract was 

awarded to CSS. Id. at 4306.

C. Post-Award Activities and Rotech’s Protest in the Government 

Accountability Office 

On August 7, 2014, the VA conducted Rotech’s debriefing. According to Rotech, 

during that meeting, the SSA on the contract, Lorrie Baines, stated that the VA believed 

that CSS would not be able to complete the transition process within ninety days. See

Pl.’s Mot to Supplement the AR, ECF No. 34 (“Mot. to Supp. AR”). Rotech has 

submitted declarations stating that Ms. Baines told Rotech that the transition would take 

 

2 CSS’s weaknesses were that it did not have a respiratory technician in Vermont and that CSS’s 

bid had not proposed enough drivers or customer service personnel. AR 4261. The solicitation 

categorized negative aspects of proposals as either “Weaknesses” or “Significant Weaknesses, 

with CSS’s weaknesses being the former. Id.
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that amount of time because CSS needed to open facilities and purchase equipment to 

service the VISN 1 service area. Id. at 2. According to Rotech, Ms. Baines stated that 

the VA would extend Rotech’s existing contract until CSS was able to complete the 

transition. Id.

Rotech filed a protest with the Government Accountability Office (“GAO”) on 

August 11, 2014. AR 4309-4462. As in this protest, Rotech claimed that (1) VA’s 

evaluation of the Technical Factor was flawed; (2) VA failed to follow the Solicitation’s 

evaluation criteria for Past Performance; (3) the VA’s price evaluation did not comply 

with the Solicitation because the VA did not conduct a price realism analysis; and (4) the 

VA failed to conduct a proper best value determination. Id. In a supplemental protest 

filed on August 18, 2014, Rotech expanded the basis of its protest, claiming that CSS’s 

proposal should have been disqualified or substantially downgraded because it lacked a 

viable transition plan. Id. at 7168-7176. The VA subsequently submitted an agency 

report addressing Rotech’s allegations on September 10, 2014. Id. at 4463-7167. The 

agency also submitted a brief supplemental contracting officer narrative addressing 

Rotech’s supplemental allegations on September 29, 2014. Id. at 7177-7185. CSS 

participated in the protest as an intervenor for the defendant.

The GAO denied Rotech’s protest on November 5, 2014. Id. at 7186-7195. The 

GAO found that Rotech’s claim that CSS’s transition plan was unrealistic lacked merit 

because the question of whether CSS could complete the transition in the time specified 

by the contract is a matter of contract administration. Id. at 7189. Regarding Rotech’s 

claims that the VA’s evaluation of the Technical Factor was flawed because CSS did not 
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operate facilities or employ qualified personnel within VISN 1, GAO held that the 

argument was without merit because the solicitation did not require the offeror to already 

have established operations within VISN 1. Id. at 7188. Nor did the solicitation require 

an offeror to “identify their proposed facilities or identify all the personnel that would 

perform the requirements.” Id. The GAO noted that in accordance with the solicitation’s 

requirements, CSS’s proposal:

. . . identified various facilities that it was considering throughout the New 

England area, that it planned to identify and secure 10 locations as part of 

its transition process, it identified specific individuals who would be 

involved with transition, and indicated that [CSS] had initiated the process 

of obtaining licensure and insurance certification necessary to provide 

services in VISN 1.

Id. at 7188. 

The GAO also held that “the record fails to support the protester’s argument that 

[CSS] failed to identify a local management team and the respiratory therapists,” noting 

that CSS’s technical proposal identified “its president, vice president, general manager, 

operations manager/regional project manager, director of business development/primary 

point of contact, director of customer service, director of billing, director of quality 

control, human resources manager, and alternate project manager.” Id. at 7189. 

Similarly, with respect to respiratory therapists, the GAO held “the mere fact that the 

individuals identified are prospective hires does not demonstrate that the evaluators could 

not reasonably have viewed [CSS’s] plan for providing qualified therapists as low risk.” 

Id. at 7190. The agency found that “the level of risk associated with the awardee’s plan 

to hire qualified personnel is a matter of agency judgment, and the mere fact that the 
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protester disagrees with the agency’s assessment does not demonstrate that the agency’s 

judgment was unreasonable.” Id.

The GAO likewise held that Rotech’s past performance claims lacked merit, 

finding that VA did not act unreasonably when it determined that CSS’s performance 

within VISN 10 was very relevant for evaluative purposes given that the VISN 10 

contract required CSS to provide services to more patients than the estimated number that 

would be served under the VISN 1 contract and more complex services than were to be 

provided under the VISN 1 contract. Id. at 7193. The GAO also noted that CSS received 

more favorable quality evaluations for its performance of the VISN 10 contract than 

Rotech received for its comparably relevant past performance. Id. at 7193.

Finally, with respect to Rotech’s claim that the VA had failed to perform a price 

realism analysis, the GAO concluded that “the analysis performed by the contracting 

officer was adequate to establish the realism of [CSS’s] price.” Id. at 7194. Therefore, 

the GAO rejected Rotech’s assertion that the VA failed to document its rationale for 

awarding the contract to CSS, concluding “a documented tradeoff analysis is not required 

where, as here, the lower-priced proposal is not lower rated technically.” Id. at 7195. 

The GAO issued its decision denying Rotech’s protest on November 5, 2014. Id.

at 7186. On November 19, 2014, Rotech filed its bid protest complaint in this court. The 

parties subsequently filed cross-motions on the administrative record. In addition, 

Rotech moved to supplement the administrative record to include statements that the VA 

allegedly made during Rotech’s debriefing. The court held an oral argument on the 

parties’ motions on March 11, 2014.
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II. STANDARD OF REVIEW

A. Standard for Judgment on the Administrative Record

RCFC 52.1 provides for review of agency action based upon the administrative 

record. “Unlike summary judgment standards, genuine issues of material fact do not 

preclude a judgment on the administrative record.” Young v. United States, 497 F. 

App’x 59, 61 n.8 (Fed. Cir. 2012) (citing Bannum Inc. v. United States, 404 F.3d 1346, 

1355-56 (Fed. Cir. 2005)). Instead, this court is to “resolve[] questions of fact with 

references to the administrative record. . . . In such instances, the Claims Court may 

make factual determinations and legal conclusions based on the administrative record in 

the first instance.” Id. at 59 n.8 (citing Bannum, 404 F.3d at 1356, 1354). Under this 

standard, “the focal point for judicial review should be the administrative record already 

in existence, not some new record made initially in the reviewing court.” Axiom Res. 

Mgmt., Inc. v. United States, 564 F.3d 1374, 1379 (Fed. Cir. 2009) (quoting Camp v. 

Pitts, 411 U.S. 138, 142 (1973)).

B. Standard for Procurement Challenges

The standard of review of an agency’s action is governed by the Administrative 

Procedure Act (“APA”), 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4). The Court’s standard 

of review in bid protests is “highly deferential.” Advanced Data Concepts, Inc. v. United 

States, 216 F.3d 1054, 1058 (Fed. Cir. 2000). The court may not set aside an agency’s 

action unless the action was “arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law.” Palladian Partners, Inc. v. United States, --F.3d---, No. 

2014-5125, 2015 WL 1810863, at *6 (Fed. Cir. Apr. 22, 2015) (quoting Savantage Fin. 
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Servs. v. United States, 595 F.3d 1282, 1285 (Fed. Cir. 2010)). In that connection, “[t]he 

court’s task is to determine whether ‘(1) the procurement official's decision lacked a 

rational basis; or (2) the procurement procedure involved a violation of regulation or 

procedure.’” Id. (quoting Savantage, 595 F.3d at 1285).

When challenging a procurement on the ground of a regulatory violation, the 

protester “must show a clear and prejudicial violation of applicable statutes or 

regulations.” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350-51

(Fed. Cir. 2004) (citation omitted). The Competition in Contracting Act of 1984, Pub. L. 

No. 98-369, 98 Stat. 1175, mandates that agencies evaluate sealed bids and competitive 

proposals, and award a contract, “based solely on the factors specified in the solicitation.” 

41 U.S.C. § 3701(a); see also 48 C.F.R. § 15.608(a). Therefore, if an agency fails to 

comply with the terms of the solicitation, such failure may “constitute grounds for 

overturning the bid award.” Advanced Data Concepts, Inc. v. United States, 43 Fed. Cl. 

410, 417 (1999). However, when the Court finds a “reasonable basis” for an agency’s 

action, the Court should “stay its hand even though it might, as an original proposition, 

have reached a different conclusion as to the proper administration and application of the 

procurement regulations.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1371 

(Fed. Cir. 2009) (quoting Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 

1989)). “This standard recognizes a zone of acceptable results in each particular case and 

requires that the final decision reached by an agency is the result of a process that 

‘consider[s] the relevant factors’ and is ‘within the bounds of reasoned decision 

making.’” Mgmt. Solutions & Sys., Inc. v. United States, 75 Fed. Cl. 820, 827 (2007) 
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(quoting Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105 

(1983)).

When a protester alleges a lack of a rational basis for the agency action, the test is 

“whether the contracting agency provided a coherent and reasonable explanation of its 

exercise of discretion, and the disappointed bidder bears a ‘heavy burden’ of showing that 

the award decision had no rational basis.” Banknote, 365 F.3d at 1351 (Fed. Cir. 2004) 

(citation omitted). The agency has a “particularly” high degree of discretion when, as in 

this case, “the contract is to be awarded to the bidder or bidders that will provide the 

agency with the best value.” Croman Corp. v. United States, 724 F.3d 1357, 1363 (Fed. 

Cir. 2013) (citing Banknote Corp., 365 F.3d at 1355.This is because a best value 

determination is “necessarily a subjective process.” One Largo Metro, LLC v. United 

States, 109 Fed. Cl. 39, 97 (2013)

Even if the Court were to determine that an agency’s decision-making “fails the 

APA review under 5 U.S.C. § 706(2)(A),” the court must still decide whether the 

government’s conduct prejudiced the protester. See Bannum, 404 F.3d at 1351. “‘[T]o 

prevail in a protest the protester must show not only a significant error in the procurement 

process, but also that the error prejudiced it.’” Galen Med. Assocs. v. United States, 369 

369 F.3d 1324, 1330 (Fed. Cir. 2004) (quoting Data Gen. Corp. v. Johnson, 78 F.3d 

1556, 1562 (Fed. Cir. 1996)). Prejudice requires the protester to show a “substantial 

chance” that it would have received the contract award absent the agency’s error. See 

Bannum, 404 F.3d at 1358. Therefore, even if the plaintiff is able to show agency error, 

the court must uphold the agency’s decision if the error did not alter the results of the 
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procurement. See, e.g., Statistica, Inc. v. Christopher, 102 F.3d 1577, 1583 (Fed. Cir. 

1996). 

Finally, a challenger may not use a bid protest as an opportunity to challenge the 

terms or requirements of the solicitation itself. In Blue & Gold Fleet, L.P. v. United 

States, the Federal Circuit held that “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 subsequently in 

a bid protest action . . . .” 492 F.3d 1308, 1313 (Fed. Cir. 2007). This rule prevents the 

“inefficient and costly” process of conducting a second round of bidding “after offerors 

and the agency ha[ve] expended considerable time and effort submitting or evaluating 

proposals in response to a defective solicitation.” Bannum, Inc. v. United States, 779 F.3d 

1376, 1380 (Fed. Cir. 2015) (quoting Blue & Gold, 492 F.3d at 1314) (internal quotation 

marks omitted).

III. DISCUSSION

A. The VA Conducted a Reasonable Technical Evaluation that Complied 

with the Terms of the RFP

Rotech argues that the VA’s evaluation of CSS’s technical proposal was arbitrary 

and capricious. Specifically, Rotech argues that because CSS did not have employees or 

facilities already positioned in VISN 1, CSS would not be able to complete the transition 

in forty-five days. Rotech also argues that CSS’s bid was deficient with respect to 

describing the personnel and facilities CSS would use to implement the contract. Finally, 

Rotech argues that CSS’s proposal should have been rejected because CSS materially 
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misrepresented its intentions with respect to the respiratory therapists it intended to argue 

if awarded the contract.

 However, as CSS and the government point out, the record demonstrates 

Rotech’s arguments with respect to the Technical factor are insufficient to overcome the 

degree of deference this court is required to give to agency decision making. The record 

shows that the VA did conduct a reasonable evaluation of CSS’s technical proposal in 

conformity with the RFP’s requirements. Further, contrary to Rotech’s claims, the fortyfive day transition deadline is a matter of contract administration rather than a 

requirement for the procurement.

1. The VA’s review of CSS’s proposed transition was reasonable 

and conformed with the RFP 

Rotech’s primary argument is that the VA failed to evaluate CSS’s ability to 

comply with the solicitation’s requirement that the transition be completed within fortyfive days. Rotech argues that based on CSS’s proposal, CSS would not have been able to 

complete the transition within the time period, and therefore the VA did not properly 

evaluate CSS’s proposal under the Technical factor. As evidence of the VA’s failure to 

evaluate CSS’s proposal, Rotech notes that “no documents in the AR discuss CSS’s 

ability to comply with the 45-day transition requirement,” and therefore, “the VA never 

evaluated CSS’s proposal for this requirement.” Pl.’s MJAR 4. According to Rotech, 

“[i]f the VA had actually considered the 45-day transition requirement—which it did 

not—the VA would have disqualified CSS’s proposal for an inadequate transition plan 

that failed to propose a transition within 45 days of the contract award.” Id. 5-6. The 
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VA’s action, according to Rotech, “is a violation of procurement law and regulation, and 

is also arbitrary and capricious.” Id. at 17.

The defendants counter that CSS never stated that it could not complete the 

transition within forty-five days and that the agency’s review of CSS’s transition plan 

complied with the regulations. According to the defendants, Rotech’s arguments 

represent an improper attempt to add requirements to the RFP post award. 

At the outset, it is important to note the relative importance of the transition plan 

in the context of the RFP as a whole. The contract contemplated a contractual 

arrangement to provide a wide variety of services over a five year period, and the 

structure of the RFP demonstrates that a bidder’s transition plan was less important than 

the many substantive aspects of a bidder’s proposal. Though the agency was required to 

evaluate the transition, a bidder’s transition plan represented only one out of six areas of 

discussion in the Management Approach subfactor, which in turn is only one of five 

subfactors in the Technical factor, which in turn is only one of the three factors that the 

RFP required the agency to consider and evaluate. Further, a bidder’s description of its 

transition plan was limited to ten pages. This limitation indicates that the RFP did not 

contemplate a bidder submitting a transition plan containing every detail. 

Turning to the forty-five day time limit for the transition, the court finds that he

language and structure of the solicitation demonstrate that the agency was not required to 

specifically find that a bidder must be able to complete the transition within forty-five 

days, and that an inability to do so would not automatically disqualify a bidder from 

consideration. The statement of work explains that during the forty-five day period
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following the award of the contract to a new offeror, the outgoing and new contractors 

shall coordinate the transfer of care, and contains the obligations of the outgoing 

contractor, the incoming contractor, and the government during that time period. AR 60. 

The solicitation explains that, during this transition period, the VA will continue to pay 

the outgoing contractor for services provided to patients while the incoming contractor is 

setting up its equipment. Id. The solicitation states that this equipment transfer “will be 

accomplished within the time frame established ‘as soon as possible after award, but not 

to exceed 45 days.’” Id. at 53. 

However, the same provision specifically contemplates the possibility that an 

awardee may not complete the transition within that time, and provides an alternative 

plan for that scenario: “Failure to perform the switch-outs as specified will result in a 

forfeit of payment to the provider currently used for every day thereafter until switch-out 

is complete. Payments will be assessed based on that providers established rate and 

prorated from setup date.” Id. at 53 (emphasis added). Therefore, the forty-five day 

transition period is not a determinative solicitation requirement, but merely sets a limit on 

the government’s obligation to the outgoing contractor. The contract provides an 

incentive for the incoming contractor to complete the transition within forty-five days, 

and requires the incoming contractor to pay the outgoing contractor’s rate after that time 

period. Consequently, the length of the transition is a matter of contract administration, 

and not a requirement for a successful bid, because penalties for untimely performance 

could only be assessed after a contract was awarded. See Allied Tech. Grp., Inc. v. 

United States, 649 F.3d 1320, 1330 (Fed. Cir. 2011) (finding that an “offeror’s potential 
20

failure to comply with the proposal requirements is ordinarily “a matter of contract 

administration,’ which does not go to the propriety of accepting the bid.” (quoting 

Centech Grp., Inc. v. United States, 554 F.3d 1029, 1039 (Fed. Cir. 2009))).

According to Rotech’s argument, the agency was required to specifically find that 

CSS could the complete the transition within forty-five days and eliminate all bidders 

who the VA found could not do so. But Rotech’s reading of the solicitation conflicts 

with the RFP’s provisions describing the transition process. Rotech is asking this court to 

add a determinative condition to the solicitation, which this court cannot do. The Federal 

Circuit recognized the Court of Federal Claim’s duty “to determine whether the agency’s 

[evaluation] was consistent with the evaluation criteria set forth in the RFP, . . . [and] not 

to introduce new requirements outside the scope of the RFP.” Alabama Aircraft Indus., 

Inc.-Birmingham v. United States, 586 F.3d 1372, 1375-76 (Fed. Cir. 2009) (holding that 

the Court of Federal Claims’s “attempt to rewrite the RFP” went beyond the scope of the 

court’s review) (citation omitted). Because the agency’s decision was rational, the court 

must defer to its judgment.

In addition, CSS never stated—and the agency did not find—that CSS could not 

complete the transition within forty-five days, a position CSS reiterated at oral argument.3 

 

3 Rotech asserts that the VA’s “evaluation CSS’s transition plan also conflicts with its evaluation 

of other offerors’ transition plans.” Pl.’s MJAR 5. Specifically, Rotech argues that [. . .] was 

disqualified “in large part because” [. . .]’s transition plan “conflicted with the Solicitation’s 45-

day transition requirement . . . .” Id. Therefore, according to Rotech, “the VA should have come 

to the same conclusion with CSS—and also disqualified CSS based on its inability to meet the 

transition requirement.” Id. However, unlike [. . .], CSS never stated that it could not complete 

the transition within forty-five days.
21

At oral argument, CSS again asserted its position that the transition could be completed 

within that time period. Rotech’s arguments are based on its assumptions that a nonincumbent could not find adequate facilities and staff within that time period. However, 

as discussed above, the agency’s review of the transition plan with respect to these issues 

was adequate and conformed with the RFP. Nothing in Rotech’s briefs shows that 

review to be irrational

2. The agency reasonably evaluated CSS’s transition plan with 

respect to personnel and facilities

Rotech argues that the VA failed to evaluate the fact that at the time CSS 

submitted its proposal, CSS did not have personnel or facilities in VISN 1. Therefore,

according to plaintiff,

[i]n order to become fully operational in New England, CSS would have 

to, among other things, (1) find, lease and prepare

at least 10 facilities, (2) hire new or transfer current employees to New 

England, and (3) secure insurance and accreditation for each facility. 

Pl.’s MJAR at 7. Rotech argues that the VA’s failure to downgrade CSS due to its lack 

of local personnel or facilities was in violation of the solicitation. Had VA done an 

adequate evaluation of the risks posed by CSS’s proposal, Rotech argues, Rotech would 

have had a substantially higher chance of being awarded the contract. In response, the 

government argues that each of these arguments are an attempt by Rotech “to inject new 

requirements into the solicitation in areas where it perceives CSS’s Technical Factor 

proposal to be lacking.” Gov’t MJAR 18.

The agency’s review of CSS’s transition plan is documented in the record. After 

the agency received a summary of its transition plan as part of its proposal, the VA 
22

reviewed the proposal and responded asking for additional information. AR 4268. 

Specifically, the VA asked CSS to list the names of personnel, by name and credential, 

who would be responsible for the transition, and asked CSS to provide information about 

any experience those individuals had in contract transition. Id. CSS responded to the 

agency and provided the list of responsible employees, some of which had previous 

experience in transitioning VA contracts in other VISNs. Id. at 4135. The agency found 

that CSS’s response to its question addressed all of the concerns raised in the discussions, 

noting that CSS’s response “named specific and adequate personnel to meet the needs of 

the transition.” Id. at 4268.

The agency also raised concerns about CSS’s proposal’s inclusion of only one 

facility in the state of Maine. Id. at 4268. The agency estimated that at least three 

locations would be needed to meet the demand in that area. Id. In response, CSS 

committed to opening three facilities in Maine, “and any additional locations, as needed.” 

Id. at 4134. CSS’s response to the agency’s questions also included a commitment to 

identify and secure ten locations in the VISN. Id. at 4135.

With respect to personnel, the solicitation required offerors to submit the 

following information about proposed respiratory therapists:

Summary sheet listing the number of Respiratory Therapists to be assigned 

to this requirement. Also include type of credentials (resumes) and years of 

experience performing home oxygen services and production of Consult 

Reports. Information should describe the qualifications of the personnel, 

i.e., types of experience years of experience, education, requisite trainings 

(and frequency of trainings) and certifications of therapist personnel to be 

assigned in the performance of this contract. Please include copies of 

certifications of the therapist staff intended for the effort
23

Id. at 137. The RFP also required summary sheets listing key management staff “who 

will work with the VA on day-to-day operational issues.” Id. 

As required, CSS provided the resumes and licensing information of respiratory 

therapists within the VISN 1 region to be assigned to the contract together with a sheet

summarizing the number of therapist it intended to hire and their respective credentials.. 

Id. at 537-616. CSS stated that “[t]he process for licensure and insurance certification 

has already been initiated and we are well on our way to meeting the regulations and 

guidelines for providing respiratory services to the patients in VISN 1.” Id. at 534, 553-

619. CSS’s proposal also included a summary sheet and additional information regarding 

the members of its senior management team, including the company’s president, vice 

president, and general manager. Id. at 551. CSS also listed the personnel that would be 

responsible for managing CSS’s relationship with VA in VISN 1, including its operations 

manager/regional project manager, director of business development/primary point of 

contact, director of customer service, director of billing, director of quality control, 

human resources manager, and alternate project manager. Id. at 553. 

The agency found that CSS’s discussion of the transition process in its proposal 

and responses to the agency’s question was acceptable, and merited a “Blue” rating on 

the Technical factor. The court finds that the procedures the agency used complied with 

the solicitation and that its conclusions were rational. In light of this evidence in the 

record, Rotech’s arguments that the agency failed to adequately assess CSS’s transition 

plan as it applied to personnel and facilities are unavailing. To the extent that Rotech is 

arguing that the VA failed to adequately weigh CSS’s lack of personnel and facilities 
24

when evaluating CSS’s proposal, the court finds that the solicitation left the question to 

the agency’s discretion.4

To the extent that Rotech is arguing that the solicitation required bidders to have 

personnel and facilities already in place, Rotech is simply incorrect. As the GAO rightly 

found, the RFP did not require an offeror to have employees and facilities at the time the 

offer was made:

The solicitation did not require a previously established presence in the 

coverage area, as Rotech’s arguments would suggest. In fact, the 

solicitation did not expressly require offerors to identify their proposed 

facilities or identify all the personnel that would perform the requirements. 

Nor did it indicate that such facilities or personnel would be considered in 

the evaluation. 

Id. at 7188-89 (emphasis added). Rotech argues that providing a list of respiratory 

therapists was insufficient because these therapists were not currently employed by CSS 

at the time it submitted its proposal, and CSS found many of the resumes on employment 

websites. However, the RFP required only that offerors identify the respiratory therapists

“to be assigned in the performance of this contract.” Id. at 137 (emphasis added). There 

was no requirement that those therapists already be employed by the offeror, and 

 

4 Rotech’s claim that the VA did not assess Rotech’s past experience as part of the Technical 

factor lacks merit. Rotech’s only evidence of this claim is that the words “past experience” do 

not appear in the Best Value Determination. However, the record contains numerous instances 

of CSS’s past experience being evaluated as part of the Technical factor. The evaluation 

worksheets for the technical evaluation demonstrate that the evaluators had a specific worksheet set 

aside for this aspect of the Subfactor 1 evaluation. The individual evaluators completed this 

worksheet during the CSS evaluation. See, e.g., AR 3589, 3611, 3622. In these worksheets, the 

evaluators recommended assigning specific subfactor color ratings, and provided suggested strengths 

and weaknesses. The fact that the Best Value Determination does not specifically state which of 

Rotech’s strengths come from this particular element does not mean that no evaluation was 

performed.
25

therefore, the court may not add such a requirement to the solicitation. See Blue & Gold, 

492 F.3d at 1313.

3. There was no material misrepresentation in CSS’s proposal with 

respect personnel

Finally, Rotech argues that though CSS listed the resumes of respiratory therapists 

found on an employment website as prospective employees in its proposal, CSS actually 

intended to hire Rotech’s employees if it were awarded the contract. Rotech 

characterizes CSS’s alleged plan as a “bait and switch” and a material misrepresentation 

that disqualifies it from being awarded the contract. Rotech relies on Planning Research 

Corp. v. United States, a case that upheld an agency’s finding that an offeror’s bid 

included a material misrepresentation when the offeror proposed using one set of 

employees knowing that it fully intended to hire the incumbent’s employees when the 

offeror had been informed that hiring the incumbent’s employees would be a weakness in 

its proposal and the offeror assured the agency that it did not plan to hire them. 971 F.2d 

736 (Fed. Cir. 1992). 

However, there is no evidence in the administrative record to support Rotech’s 

assertion that CSS was untruthful in its proposal. Even if CSS ultimately did hire 

individuals other than those listed in its proposal, including some of Rotech’s current 

employees, that would not be evidence that CSS misrepresented itself given the fact that 

so much time has passed since it submitted its proposal. In addition, Rotech has shown 

no reason why, even if CSS did intend to hire Rotech’s personnel to perform certain 

work, this information would have been material to the VA’s decision making process. 
26

Further, CSS identified all of its own key management personnel and there is no evidence 

to suggest that these individuals will not be available, as CSS has promised.

B. The VA Conducted a Reasonable Past Performance Evaluation that 

Complied with the Terms of the RFP

Rotech argues that the VA failed to apply the RFP’s selection criteria with respect 

to Past Performance factor when evaluating CSS’s proposal. Pl.’s MJAR 27. Rotech 

makes two arguments with respect to the Past Performance factor. First, Rotech argues 

that it and CSS were not evaluated using the same forms, and therefore the agency’s 

decision was arbitrary and capricious. Second, Rotech argues that the VA wrongly 

evaluated CSS to have “very relevant” experience, which in turn led to an incorrect “Low 

Risk” rating. With respect to Rotech’s first argument, the government and CSS counter 

that Rotech was not prejudiced by the use of different forms because the two forms 

collected essentially the same information. Defendants also argue that, under the 

deferential standard of review granted to an agency’s past performance reviews, the 

administrative record demonstrates that the VA’s decision to rate CSS’s proposal as “low 

risk” was reasonable. For the reasons discussed below, the court agrees with the 

defendants.

1. The VA’s assessment of CSS’s prior contracts was reasonable

As discussed above, the Past Performance factor consists of two subfactors: 

relevancy and quality. Rotech argues that the VA acted arbitrarily and capriciously with 

respect to its evaluation of the relevancy of CSS’s past experiences and wrongly 

classified CSS’s former contracts as “Very Relevant.” As a result, Rotech argues, CSS’s 
27

“Low Risk” rating on the Past Performance factor is incorrect for two reasons: first; that 

the VA did not evaluate the relevancy of CSS’s past and current contracts; and second, 

that as a factual matter, CSS’s other contracts are not comparable to the procurement at 

issue in this case. Rotech asserts that the record in this case “contains no documents that 

indicate that the VA performed the required interim assessment of the relevance of any of 

CSS’s past or present contracts.” Pl.’s MJAR 20.5 But the record simply does not 

support this position. The record contains evidence which show that the VA did in fact 

evaluate Rotech’s past contracts for relevancy. In addition, the fact that CSS had such 

positive reviews with respect to the quality subfactor supports the defendant’s assertion 

that the overall “low risk” rating is a reasonable assessment.

The solicitation thus explained that the VA would evaluate offerors’ ability to 

perform successfully “based on the offerors’ demonstrated past and present 

performance,” and that both the relevancy and quality of performance in past contracts 

was to be taken into account. AR 140. The solicitation defined recent and relevant 

contracts as ones performed at either the Federal or state level, or within the private 

sector “of similar type, scope, size, and complexity that are ongoing, and/or have been 

completed within the last five years.” Id. at 139. Contracts were considered “very 

 

5 Rotech also takes the position that the VA was required to assign ratings between “Very 

Relevant” and “Not Relevant” to each offerors proposals, and states that “the VA and CSS do 

not dispute that the VA failed to assign the required ratings.” Pl.’s Reply 20-21. But the RFP

contradicts Rotech’s assumption. While the RFP called for evaluators to designate a level of 

relevancy to an offeror’s specific past projects, an overall “rating will not be given at the 

subfactor level or by an individual rater. Ratings are given by team consensus at the Factor level 

only.” AR 41. 
28

relevant” if they involved the same effort and complexities as the one being awarded, 

“relevant” if they involved much of the same effort and complexities, and “somewhat 

relevant” if they involved some of the effort and complexities. Id. at 139. 

The solicitation made clear that VA would consider information obtained from 

references, as well as information provided by offerors and other sources. Id. at 139. 

The solicitation went on to explain that the past performance evaluations would yield 

performance assessments rating reflecting “the Government evaluation team’s judgment 

of the probability of an offeror successfully accomplishing the proposed effort[.]” Id. at

140. Both Rotech and CSS ultimately received ratings of “low risk,” which the 

solicitation defined as a “good probability of success with overall low degree of risk in 

meeting the government’s requirements.” Id. at 4108, 140.

A summary of the agency’s review of the relevancy of CSS’s past contracts can be 

found in CSS’s evaluation summary, and demonstrates that the agency did consider 

relevancy as required by the solicitation. See AR 4278. The record supports the agency’s 

finding that CSS’s performance of a similar contract in VISN 10 is “very relevant” to the 

work to be performed under this contract. Though the VISN 10 contract was initially much 

smaller than the VISN 1 contract in terms of dollar amount, the contract has grown 

significantly over the years and covers a large number of patients. The VISN 10 also 

involved similar levels of complexity, including treating patients in their homes across 

multiple states. The Federal Circuit has recognized that procuring agencies are afforded 

“broad discretion” to make judgments regarding past performance relevancy. Glenn Def. 

Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 910 (Fed. Cir. 2013); PlanetSpace, 
29

Inc. v. United States, 92 Fed. Cl. 520, 539 (2010) (“[I]t is important to note that what does or 

does not constitute ‘relevant’ past performance falls within the [Source Selection 

Authority’s] considered discretion.”). In this case, the plaintiff has not given the court any 

reason to believe that agency’s evaluation of the relevancy and quality of CSS’s past 

experience was not rational.

In addition, with respect to the quality subfactor, CSS’s positive references on past 

contracts adequately support the fact that the “low risk” rating it received from the 

evaluators was rational, and thus entitled to deference. In CSS’s past performance 

questionnaire for the VISN 10 contract, [. . .], the VISN Prosthetic Representative, stated 

that CSS provided “oxygen very timely and systematically in accordance to our contract 

and has never deviated from the prescription. Id. at 7379.6 CSS received an overall 

rating of “exceptional,” meaning “the contractor’s performance record within the area of 

evaluation exceeded that required by the contract[,]” and a report that “Community 

Surgical Supply has been excellent and have satisfied all aspects of our veterans oxygen 

needs” for its VISN 10 contract, under which it successfully served a population of over 

4,500 patients, including ventilator patients, for five years across all of Ohio, and parts of 

Kentucky, Indiana and Pennsylvania. Id. at 7381, 4482.

 

6 The SSEB also received a past performance questionnaire related to CSS’s performance of a 

smaller contract (approximately 630 patients) for respiratory services for the Erie, Pennsylvania 

VA Medical Center. AR 7371-7375. That questionnaire rated CSS’s performance as 

satisfactory but also noted that “[t]he service level has greatly improved in the past two years[.]” 

Id. at 7375. 
30

Further, Mr. [. . .] noted that “VISN 10 has a stringent contract oversight process 

that reports to VISN and medical center leadership, Community Surgical has provided 

oxygen to veterans under any weather related conditions and exceeds the Joint 

Commission standards related to homecare.” Id. Answering whether CSS was able to 

handle the volume of patients within the deadlines required under the contract, Mr. Floyd 

answered “Yes, and very well.” Id. Mr. [. . .] also noted that “Community Surgical staff 

are very courteous and professional, [and] the VA have received reports of veterans 

insisting that we keep this company forever.” Id. at 7379-7380. When asked whether he 

would award another contract to CSS, Mr. [. . .] stated simply “YES.” Id. at 7380.

The SSA also followed up with Mr. [. . .] by telephone in July 2014 to review his 

past performance questionnaire responses. Id. at 7184. During that call, Mr. [. . .]

affirmed his satisfaction with CSS’s performance of the VISN 10 contract, noting that 

“[t]he feedback from the Home Oxygen Coordinators has always been positive, CSS is 

responsive” and that the company “display[ed] a high level of effective management of 

respiratory services.” Id. Citing CSS’s purchase of all new equipment to support the 

VISN 10 contract (a fact the SSEB cited as a strength of CSS’s VISN 1 proposal), “high 

levels of contractor performance and satisfaction” and effective management a major 

weather emergency, Mr. [. . .] concluded that the company was an “excellent vendor and 

supplier of home oxygen products and services.” Id. at 7185. In the agency’s review of 

CSS’s strengths, the VA specifically identified CSS’s “proven track record” and 

“[e]xceptional rating” in the VISN 10 contract, and “[l]engthy [h]istory describing patients 
31

served, id. at 4260, demonstrating that the quality of CSS’s past performance was in fact 

taken into consideration. 

Therefore, the court finds that the VA adequately reviewed the relevancy of CSS’s 

past contracts and finds that its overall “low risk” rating on past performance was 

reasonable.

2. Rotech has not shown prejudice from the use of different forms.

Rotech argues that the VA “arbitrarily and capriciously [used] different 

worksheets to evaluate CSS and Rotech.” Pl.’s MJAR 36. Specifically, Rotech argues 

that the VA used both the Subfactor 1 and Subfactor 2 worksheets to assess Rotech’s Past 

Performance, the VA used only the Subfactor 2 worksheets to evaluate CSS’s Past 

Performance. Id. at 36 (citing AR 7382-413; 7351-70).7 Rotech argues that 

[H]ad the VA properly reviewed the relevance of CSS’s Past 

Performance—and the Subfactor 1 worksheet would have assisted in this 

effort—the VA would have found that CSS’s Past Performance was no 

more than ‘SOMEWHAT RELEVANT’ and CSS would have received a 

lower overall Past Performance score. Even if CSS had received a 

“RELEVANT” Past Performance rating, that change may have resulted in a 

lower adjectival rating for CSS, which would have provided Rotech with a 

substantial chance of winning the competition.

Pl.’s Rep. 24-25. 

The government and CSS argue that Rotech is overstating the importance of the 

worksheets, and that Rotech suffered no prejudice as a result of the agency using the

 

7

“Subfactor 1” refers to the relevancy of past contracts, the first factor to be considered in the 

past performance ratings, while “Subfactor 2” refers to the quality assessment of past 

performances. On the Subfactor 1 worksheet, evaluators could note whether an offeror had 

identified three or more contracts of similar type, scope, size, and complexity, and whether the 

firm had provided the dates, dollar value, number of patients served, and the scope of the 

services provided. AR 7388.
32

extra worksheet to evaluate it and not CSS. According to the defendants, the extra 

worksheets were used primarily as “scrap paper” and did not meaningfully contribute to

the agency’s decision. In addition, CSS stated that the missing worksheets “seem[] more 

like an issue of VA record retention than an allegation of procedural misconduct in the 

procurement.” CSS MJAR 30.

The court agrees with the defendants. The Subfactor 1 worksheets provided the 

evaluators with a tool to summarize some information about the bidders’ previous 

contracts, but were not the source of that information. All of the data that would have 

been reflected in the Subfactor 1 worksheets would have also been found in the 

questionnaires the agency sent to the bidders’ references. Further, the record shows that 

the Subfactor 1 worksheets were not used to evaluate Rotech in any meaningful way. 

Though the worksheets may have reflected the impressions of individual evaluators, they 

do not appear to have been an evaluative mechanism for the relevancy factor. The 

worksheets contained checkboxes for scoring various elements, but the checkboxes do 

not appear to have been used. Therefore, the agency’s failure to use the Subfactor 1 

worksheets to evaluate CSS is also not meaningful.

Most importantly, Rotech fails to establish prejudice. Rotech’s argument—that 

the use of these forms would have assisted the VA in giving CSS a lower adjectival 

description on the relevancy subfactor, which in turn could have led to CSS receiving a 

worse rating on overall past performance, which in turn could have provided Rotech with 

a substantial chance of winning the competition—is too speculative. The record shows 

that the VA did a reasonable review of both the relevancy and quality of CSS’s past 
33

work, leading to a “Low Risk” final assessment. The absence of the Subfactor 1 

worksheets is not sufficient to call the rationality of the VA’s decision into question.

C. The VA Conducted a Rational Price Determination that Complied with 

the Terms of the RFP

Finally, Rotech challenges the VA’s evaluation under the Price factor. Rotech 

alleges that the RFP required the VA to conduct a price realism analysis on CSS’s bid. A 

“price realism” analysis may be called for if a bidder’s price appears to be “so low that 

performance of the contract will be threatened.” DMS All-Star Joint Venture v. United 

States, 90 Fed. Cl. 653, 657 n.5 (2010).

8

 Rotech claims that, contrary to the RFP’s 

instructions, the VA never “made any determination or conducted any review as to price 

realism for CSS or any other offeror.” Pl.’s MJAR 15. According to Rotech, the 

language of the solicitation, specifically, the statement that “Unrealistically low proposed 

prices may be grounds for eliminating a proposal” required the agency to conduct a price 

realism review. Pl.’s Rep. 31. Rotech asserts that had the VA undertaken such an 

analysis, it would have found that CSS’s prices were unrealistic. Rotech suggests that the 

VA could have used additional methods of evaluation, such as historic prices, 

comparisons to rates paid in other VISNs, and comparisons to Medicare reimbursement 

rates to determine realism. Rotech points out that CSS’s price were 10% lower than the 

IGCE, and even lower still than Rotech’s final bid. Rotech also notes that for certain line 

items, CSS’s prices were more than 33% lower than Rotech’s. Rotech argues that the 

 

8 Price realism analysis is not to be confused with price reasonableness analysis, which an 

agency may employ if a bidder’s offer appears to be too high. DMS, 90 Fed. Cl. at 657 n.5.
34

fact that CSS’s prices were higher than two of the original bids is not relevant because 

those offerors were eliminated on the bases of their past performance and technical 

proposals before the VA had conducted any evaluation of their prices.

The government and CSS both argue that the price comparisons the VA 

conducted satisfied the requirements of the RFP. The government claims that Rotech’s 

reading of the RFP is an attempt to “introduce new requirements outside the scope of the 

RFP.” Gov’t MJAR 44 (citing Alabama Aircraft Indus., Inc.-Birmingham v. United 

States, 586 F.3d 1372, 1375-76 (Fed. Cir. 2009)). The government argues that had the 

RFP contemplated a detailed price realism analysis, it would have requested additional 

information and instructed the agency to conduct a specific method of analysis. The 

government also challenges the logic of Rotech’s argument that CSS’s offer was 

unreasonable because it was 10% lower than Rotech’s final offer.

The court agrees with the defendants. Absent instruction from the RFP, the 

agency would not be required to consider realism in a fixed-price contract because “the 

fixed price task order puts the risk of underpriced offers on the contractor.” Afghan Am. 

Army Servs. Corp. v. United States, 90 Fed. Cl. 341, 356 (2009) (citing Femme Comp 

Inc. v. United States, 83 Fed. Cl. 704, 755 (2008)). Therefore, the only reason any 

consideration of realism is necessary is the language in the RFP stating that 

unrealistically low offers may be eliminated. The Federal Circuit has instructed that a 

“trial court’s duty was to determine whether the agency’s price-realism analysis was 

consistent with the evaluation criteria set forth in the RFP.” Alabama Aircraft, 586 F.3d 

at 1375-76 (citing Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. 
35

Cir. 2004)). The RFP states that an “unrealistically low price may be grounds for 

eliminating a proposal.” AR 140. Other courts have found that similar language in an 

RFP necessitated some type of price realism analysis, see Afghan Am. Army Servs. 

Corp. v. United States, 90 Fed. Cl. 341, 357 (2009) (finding that a price realism analysis 

was required when the solicitation stated that the agency would “evaluate price proposals 

to determine whether the offered price reflects a sufficient understanding of the contract 

requirements and the risk inherent in the offeror's approach” and that proposals with “an 

unreasonable (high or low) price may be deemed to be unacceptable and may not receive 

further consideration.”). 

However, the RFP did not make any commitments to perform a price realism 

analysis in any particular manner. Therefore, the methodology is left to the agency’s 

discretion. Ne. Military Sales, Inc. v. United States, 100 Fed. Cl. 103, 118 (2011) 

(finding that because the “Solicitation does not describe the methodology required to 

conduct the price realism analysis[,]” the agency “enjoy[s] broad discretion in conducting 

its price realism analysis.”); see also FCN, Inc. v. United States, 115 Fed. Cl. 335, 375 

(2014) (“The extent of a price realism analysis for each procurement can vary, and 

generally is within the discretion of the agency.” (citing Mil-Mar Century Corp. v. United 

States, 111 Fed. Cl. 508, 541 (2013))). 

In her Supplemental Agency Report before the GAO, Lorrie Baines, the SSA on 

this contract, explained the process of price analysis:

As SSA, I reviewed the pricing for realism and reasonableness and found 

CSS’s pricing to be realistic. They were the fourth highest quote of six 

offers. They were comparable to the IGCE and a thorough review of the 
36

line-by-line cost elements revealed no unbalanced pricing and no 

mathematical error. This was the basis of my conclusion that the CSS offer 

is realistic and reasonable.

AR 7182. Therefore, according to the agency, the VA evaluated the realism of CSS’s 

price by comparing its total price to all the other offers and the IGCE. This court and the 

GAO have recognized that comparing the line items of different offers is a valid way to 

determine price realism. See Afghan, 90 Fed. Cl. at 358 (citing B–291725.3 et al., 2003 

CPD ¶ 148, 2003 WL 21982424, at *6 (Comp. Gen. July 22, 2003) (price realism 

analysis can be reasonably conducted by “evaluat[ing] each line item and the total price 

for each proposal and compar[ing] them with [the] independent estimate and with other 

offerors’ prices”). The following chart, which was prepared as part of the price 

negotiation with Rotech and CSS after all of the other bidders had been eliminated, 

shows the initial price offers from the six offerors who submitted bids:

[. . .]

[. . .]

[. . .]

[. . .]

[. . .]
37

AR 4247. The VA also prepared an IGCE which estimated that the procurement was 

valued at $51,950,000 for five years. Id. at 36. Of six initial offers, CSS was the closest 

to the IGCE, and was the third lowest bid. Rotech’s initial bid of $62.9 million was the 

highest bid. Where, as here, CSS’s initial bid was also the closest to the IGCE, the VA 

properly recognized its price was realistic. See Acad. Facilities Mgmt. v. United States, 

87 Fed. Cl. 441, 467 (2009).

Rotech has not pointed to anything in the record or the language of the solicitation 

that would persuade the court that a more in-depth analysis is needed in this case. See

Info. Sciences Corp. v. United States, 73 Fed. Cl. 70, 102 (2006) (finding that comparing 

prices to each another and the government estimate, as well as reviewing the proposal for 

compliance with the solicitation and for mathematical accuracy, satisfied the agency’s 

obligation to conduct a price realism analysis (quoting Matter of Burns & Roe Servs. 

Corp., B–296,355 2005 CPD ¶ 150, 2005 WL 2037620 (GAO July 27, 2005))). Further, 

because the RFP in this case only requested all-inclusive pricing for each CLIN, the 

agency was limited in how closely it could examine the pricing methodology. This also 

shows that the RFP did not contemplate a price realism analysis beyond comparing the 

bids and checking them for accuracy.9 The also court rejects Rotech’s argument that 

eliminated proposals should not be used to determine realism. As the GAO noted, 

 

9 Rotech has cited no case law, nor given this court any logical reason, to support its argument 

that CSS’s offer was somehow per se unreasonable because it was approximately 11% lower 

than the Rotech’s bid, and that CSS’s bid for one of the CLINs was 33% lower than Rotech’s bid 

for that same CLIN. To the contrary, other cases have found that bids far lower than the 

government estimate could nonetheless be realistic. See, e.g., Preferred Systems, 110 Fed. Cl. 48 
38

While the protester argues that the prices of the two lowest-priced 

proposals should not be considered valid points of comparison since these 

proposals were ‘essentially deemed unrealistic’ by the agency for failing to 

display an understanding of the Solicitation’s requirements, there is no 

evidence in the record that the agency regarded these proposals as 

unrealistic.

AR 7194. Further, the two bidders with lower bids than CSS, Lincare and First 

Community, each received a “Yellow” rating on the Technical factor, meaning that their 

proposals were technically acceptable. Id. at 4267. Therefore, the court finds that it was 

reasonable for the agency to use those bids as data points when considering the realism of 

CSS’s bid.

Rotech further argues that the agency failed to document its price realism analysis, 

and, relying on Cohen Fin. Servs., Inc. v. United States, 110 Fed. Cl. 267 (2013), asserts 

that this is sufficient to set aside the award. In Cohen, the agency stated that a price 

realism analysis was performed but gave no indication how the analysis was done. Id. at 

286-87. The court found that “[w]ithout a description of the facts analyzed, and the 

reasoning that connects the facts with the conclusions, the court is not in a position to 

determine whether an agency exercised its discretion in a non-arbitrary manner. Id. at 

287. However, this case differs from Cohen in several important respects. Unlike the 

agency in Cohen, Ms. Baines explained the methodology behind her conclusion, and the 

record supports her assertion that she compared Rotech and CSS’s proposals CLIN-byCLIN to determine if anything was unbalanced. See AR 4298-99 (spreadsheet 

 

(2013) (finding that a price was realistic despite the bid being 40% lower than the incumbent’s 

bid and 60% lower than the IGCE).
39

documenting side-by-side comparisons of the two proposals). Further, the solicitation in 

Cohen specifically requested more information regarding pricing than the RFP in this

case, stating that “Labor rates that do not reflect a reasonable compensation for the skill 

required in a labor category will be considered unrealistic.” Cohen, 110 Fed. Cl. at 271. 

Therefore, the court rejected the agency’s attempt to conduct the realism analysis in its 

briefs by comparing the bid to outside data on labor rates when the record did not reflect 

that the agency had already done so in the bidding process. Id. at 287. In this case, the 

information that the agency relied on for its realism analysis is documented in the record.

Finally, Rotech argues that the fact that CSS agreed to open three additional 

facilities in Maine without raising its price shows that CSS’s price was unrealistic. The 

court does not find this argument persuasive. As an initial matter, Rotech’s argument is a 

bit perplexing in light of the fact that, during the evaluation process, Rotech lowered its 

proposed total price by approximately $10 million without any corresponding cut in 

services. At oral argument, Rotech explained that the drop in price represented an 

reduction in overhead and profit, but could not give any reason why CSS would not be 

entitled to make similar types of cuts other than the fact that Rotech was the incumbent 

and therefore knew the costs better. Rotech also attempted to argue that cutting prices 

while keeping services the same was not equivalent to adding services while keeping the 

price the same. This is a distinction without a difference. Rotech has not given any 

reason why the agency’s decision to accept CSS’s proposal including the increased 

services was irrational. 
40

In sum, after considering all of Rotech’s arguments regarding price realism, the 

court finds that, based on the record, Rotech’s argument that the VA’s decision lacked a 

rational basis or was contrary to the solicitation fails. In light of the fact that “this 

procurement involves a fixed price contract” and CSS is experienced in this field, along 

with the “discretion afforded to an agency’s price realism analysis,” the court finds that 

none of the alleged errors in the price realism analysis “warrant disrupting the [contract] 

award.” Mil-Mar, 111 Fed. Cl. at 552 (quoting Ceres Envtl. Servs., Inc. v. United States, 

97 Fed.Cl. 277, 307-08 (2011)).

D. Rotech’s Motion to Supplement the Administrative Record is Denied

In addition to moving for judgment on the administrative record, Rotech has also 

moved to supplement the administrative record in this case to include two declarations 

which Rotech argues supports its argument that Rotech was prejudiced by the VA’s 

failure to evaluate CSS’s ability to complete the transition within forty-five days. See

Pl.’s Mot. to Supp. AR. Rotech offers declarations from two of its employees, Tamara 

Tait, Vice President for Reimbursement Services, and Dania Vega, Quality Improvement 

Manager, concerning statements that the contracting officer for the solicitation, Lorrie A. 

Baines, made at Rotech’s post-award debriefing. According to the declarations, Ms. 

Baines told Rotech’s employees that CSS did not have any locations in VISN 1, and that 

she expected the transition to take upwards of 90 days. Ms. Baines further allegedly

stated that the VS would extend Rotech’s contract until the transition was completed.

Rotech argues that these statements reflect the agency’s evaluation of CSS’s 

proposal and “should properly be considered part of the AR to the extent that the VA 
41

failed to document its determination.” Mot. to Supp. AR 2. The government and CSS 

counter that these declarations should not be a part of the administrative record because

even if the statements described in the declarations are true, they do not assist the court in 

answering the question of whether the VA’s decision to award the contract to CSS was 

reasonable and lawful. Therefore, defendants argue the that declarations do not meet the 

standard for supplementing the administrative record.

The court agrees with the government. “The focus of judicial review of agency 

action remains the administrative record, which should be supplemented only if the 

existing record is insufficient to permit meaningful review consistent with the APA.” 

Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009). This 

court’s review is limited to the record before the agency in order to “guard against courts 

using new evidence to ‘convert the “arbitrary and capricious” standard into effectively de 

novo review.’” Id. at 1380 (quoting Murakami v. United States, 46 Fed. Cl. 731, 735 

(2000). Therefore, “[t]he ability to supplement the administrative record before the 

Claims Court is a limited one.” Res-Care, Inc. v. United States, 735 F.3d 1384, 1391 

(Fed. Cir. 2013) (citing Axiom, 564 F.3d at 1378). Supplementation is permitted “only 

if the existing record is insufficient to permit meaningful review consistent with the 

APA.” Axiom, 564 F.3d at 1381. 

To determine whether the existing record is sufficient, the court must consider 

whether consideration of the proposed supplement is “necessary in order not ‘to frustrate 

effective judicial review.’” Id. (citing Camp v. Pitts, 411 U.S. 138, 142-43 (1973)). 

Supplementation is unnecessary when the documents a litigant seeks to add to the record 
42

do not shed light on an issue that the court must consider in order to decide the case. See

Allphin v. United States, 758 F.3d 1336, 1344 (Fed. Cir. 2014) (finding that because a 

proposed supplement was only relevant to a nonjusticiable claim, the documents could 

not be added to the administrative record). Because the court has already found that the 

solicitation did not require the VA to specifically find that CSS could complete the 

transition within forty-five days, the declarations are not useful to further support 

Rotech’s argument that the VA failed to make such a determination. Rotech itself argues 

that it is merely attempting to complete the record, and “rather than attempt[ing] to add 

anything new,” the declarations are “documenting the VA’s own conclusions.” Pl.’s 

Mot. to Supp. 9. Therefore, it can hardly be said that that supplementing the record is 

“necessary in order not to frustrate effective judicial review.” Axiom, 564 F.3d at 1381. 

Rotech argues that that supplementation is permitted when “the record raises 

serious questions concerning the rationality of the award decision” or if the information is 

“probative of potential agency bias or bad faith.” Mot. to Supp. AR 7 (quoting Arkray 

USA, Inc. v. United States, 2014 U.S. Claims LEXIS 571, *14 (Fed. Cl. June 26, 2014) 

(additional citations omitted)). But, as discussed above, the record is sufficient to show 

that the VA conducted an evaluation of CSS’s transition plan in conformity with the 

solicitation, and that the agency’s decision to give CSS a “Blue” rating on the Technical 

factor was reasonable. Nor do the declarations give any indication that the agency acted 

in bad faith. Therefore, plaintiff’s motion to supplement the is DENIED.
43

IV. CONCLUSION

For the reasons stated above, Plaintiff’s Motion for Judgment on the 

Administrative Record is DENIED. Plaintiff’s Motion to Supplement the Administrative 

Record is DENIED. The Government’s Motion for Judgment on the Administrative 

Record is GRANTED. Defendant-Intervener CSS’s Motion for Judgment on the 

Administrative Record is GRANTED. The clerk is instructed to enter judgment 

accordingly. No costs.

The parties shall have until Wednesday, May 27, 2015 to submit their requests 

for the redaction of protected/privileged material before the court issues its published 

opinion. The parties shall submit the proposed redactions to the court via e-mail at the 

following address: firestone_chambers@ao.uscourts.gov.

IT IS SO ORDERED.

s/Nancy B. Firestone 

NANCY B. FIRESTONE

Judge