# In the United States Court of Federal Claims

No. 18-861C (E-Filed: Ju ly 26, 2018) 1

CHENEGA HEALTHCARE SERVICES, LLC,

Plaintiff,

v.

THE UNITED STATES,

Defendant,

and

KUPONO GOVERNMENT SERVICES, LLC,

Intervenor-Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Post-Award Bid Protest; Review of Proposal Evaluation; Late Key Personnel Substitution; Award Without Discussions; Preliminary Injunction Request Denied.

Kevin A. Rosenfield, Seattle, WA, for plainti ff. Mark G. Jackson and Stowell Holcomb, Seattle, WA, of counsel.

Agatha Koprowski, Trial Atto rney, with whom were Chad A. Readler, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director, Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civ il Division, United States Department of Justice, Washington, DC, for defendant. Ad a Mitrani, United States Department of Energy, of counsel.

1 This opinion was issued under seal on July 13, 2018. Pursuant to ¶ 4 of the ordering language, the parties were invited to identify source selection, proprietary or confidential material subject to deleti on on the basis that the material was protected/privileged. No redactions were pro posed by the parties. Thus, the sealed and public versions of this opinion are identic al, except for the publication date and this footnote.2 Damien C. Specht, McLean, VA, for interv enor-defendant. James A. Tucker and R. Locke Bell, McLean , VA, of counsel.

OPINION AND ORDER

CAMPBELL-SMITH, Judge.

This post-award bid prot est is before the court on plaintiff’s motion for a preliminary injunction, ECF No. 4, and defend ant’s motion to dismiss, ECF No. 31. The court has reviewed plaintiff’s appendix, EC F No. 3-1, plaintiff’s memorandum, ECF No. 5, defendant’s supplemental appendix, ECF No . 26-2, intervenor-def endant’s response brief, ECF No. 30, defendant’s opposition brief and motion to dismiss, ECF No. 31, plaintiff’s amended complaint, ECF No. 34, and plaintiff’s respons e/reply, ECF No. 35. 2 Oral argument was deemed unnecessary. Se e ECF No. 36. For the reasons set forth below, plaintiff’s motion fo r preliminary injunction is DENIED and defendant’s motion to dismiss is also DENIED

. I. Background

A. Solicitation

The procuring agency here is the United States Department of Energy (DOE). The competition that underlies this protest is for a range of support services at DOE’s “Office of Enterprise Assessment’s National Traini ng Center (NTC) located on Kirtland Air Force Base in Albuquerque, New Mexico.” ECF No. 3-1 at 65. Services include “developing, providing and supporting secur ity and safety classroom and on-line training at the NTC and other locations, managing training programs, providing cyber-security and information technology support for the NTC as well as at DOE headquarters in Washington, D.C., and maintaining facilities a nd grounds.” Id. at 65-66. The solicitation for this five-year Indefinite Delivery Indefi nite Quantity (ID IQ) contract issued on June 23, 2017, id. at 65, with a clos ing date for receipt of proposal s of August 16, 2017, id. at 76.

Any attempted modification of a proposal received after August 16, 2017, would be deemed “late” and would not be considered by DOE. Id . at 79. DOE informed the offerors that the agency intended to award the contract without discussions. Id. at 80. For this protest, the most pertinent evaluation criteria we re the resume and letter of commitment that each offeror wo uld include to identify the person who would serve as General Manager for the services performed un der the contract. Id. at 85. Notably, offerors were informed that

2 Defendant’s motion to dismiss is di scussed at the end of this opinion.3 FAILURE TO SUBMIT A L ETTER OF COMMITMENT [from the person to serve as General Manager] MAY RESULT IN THE OFFEROR’S PROPOSAL BEING ELIMINATED FROM FURTHER CONSIDER ATION FOR AWARD FOR FAILURE TO SUBMIT A RESPONSIVE, COMPLETE AND ACCEPTABLE PROPOSAL.

Id. (emphasis in original).

B. Offerors

Five offerors responded to the solic itation. ECF No. 3-1 at 153. Among the offerors were plaintiff, Ch enega Healthcare Services, LLC (Chenega or CHS), and Kupono Government Services, LLC (Kupono), th e intervenor-defendant in this suit. Kupono’s proposal was selected for award.

Chenega’s “sister companies,” other wh olly-owned subsidiaries of Chenega Corporation, had performed on predecessor cont racts at NTC for some years. ECF No. 5 at 9. Indeed, one of these sister companies is the incumbent contractor at NTC. Id. When Chenega submitted its o ffer for this procurement, it proposed that Mr. Mark Russell -- the General Manager who was servi ng in that capacityfor the incumbent contractor at the time -- continue in that role, and included Mr. Russell’s resume and letter of commitment in its proposal. Id. at 10; ECF No. 3-1 at 153.

C. Chenega Informs DOE that Mr. Ru ssell Cannot Commit to the Contract

While the agency was cons idering the five proposals it had received, Mr. Russell informed Chenega that he could no longer commit to being Chenega’s General Manager for the follow-on contract, nor could he con tinue as General Manager on the incumbent contract, due to health and pe rsonal concerns. ECF No. 3- 1 at 159. Chenega’s sister company informed DOE that it needed to replace Mr. Russe ll on the incumbent contract, and Chenega informed DOE that it would needto replace Mr. Russell in the proposal under consideration. Id. at 159-60. Mr. Mark Miller was substituted as General Manager on the incumbent contract, and Chenega informed DOE that Mr. Miller would replace Mr. Russell in its proposal, as well. Id. The personnel contacted at DOE noted the proposed General Manager substitution in Chen ega’s offer but did not confirm that the substitution was accepted by DOE. Id. at 160.

D. DOE Rates Chenega’s Proposal as Un satisfactory and Awards the Contract to Kupono

DOE subsequently inquired of Cheneg a whether Mr. Russell’s commitment letter was still valid for Chenega’s proposal, but di d not permit Chenega to provide any other information. Id. at 97. Chenega confirmed that Mr. Ru ssell’s letter of commitment was4 no longer valid. ECF No. 5 at 12. A lthough Chenega’s offer and Kupono’s offer received similar ratings for most of the non-price aspects of their proposals, the lack of a valid letter of commitment from a Genera l Manager rendered Chenega’s technical approach unsatisfactory. ECF No. 3-1 at 12 2, 144. Even tho ugh Chenega offered a lower price, the technical approach facto r, which was the “most important criteria,” weighed heavily against Chen ega, and DOE concluded that Kupono offered the best value to the agency. Id. at 149-50.

E. Prior Protest

At least two protest grounds in this suit were raised by Chenega before the Government Accountability Office (GAO). The focus of that protest was on DOE’s refusal to consider the replacement Genera l Manager, Mr. Mark M iller, as a component of Chenega’s proposal, either through the agency’s knowledge of Mr. Miller and his proposed role in Chenega’s offer once Mr. Ru ssell became ill, or th rough entering into discussions with Chenega so that its proposal could be modified to include Mr. Miller’s resume and letter of commitment. ECF No. 3-1 at 152-57. The GAO, however, found that DOE was not obligated to consider the proposed substitution -- of Mr. Miller for Mr. Russell -- that had been communicated by Chen ega to DOE staffers. Id. Nor was DOE obliged to enter into discussions with Chenega regarding the proposed substitution. Id. Chenega’s GAO protest was denied, and this suit followed.

II. Legal Standards

A. Bid Protest Standard of Review

As the United States Court of Appeals for the Federal Circuit has stated, “the proper standard to be applied in bid prot est cases is provided by 5 U.S.C. § 706(2)(A) [(2012)]: 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.’” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 13 50-51 (Fed. Cir. 2004) (citing Advanced Data Concepts, Inc. v. United States, 216 F.3d 1 054, 1057-58 (Fed. Cir. 2000)). Under this standard, a procurement decision may be set as ide if it lacked a rational basis or if the agency’s decision-making involved a clear and prejudicial violation of statute, regulation or procedure. Emery Worldwide Airlines, In c. v. United States, 264 F.3d 1071, 1085-86 (Fed. Cir. 2001) (citing Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332-33 (Fed. Cir. 2001)). “The arbitrary and capricious standard applicable [in bid protests] is highly deferential.” Advanced Data Concepts, 216 F.3d at 1058.

De minimis errors in the procurement pr ocess do not justify relief. Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 1000 (F ed. Cir. 1996) (citing A ndersen Consulting v. United States, 959 F.2d 929, 9 32-33, 935 (Fed. Cir. 1992)). The bid protest plaintiff bears the burden of proving that a significant error marred the procurement in question.5 Id. (citing CACI Field Servs., Inc. v. United States, 854 F.2d 464, 466 (Fed. Cir. 1988)). Examples of arbitrary and capricious agencyaction include “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) (Alabama Airc raft) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)) (alteration in original). The court will, however, “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974) (citation omitted).

“‘If the court finds a reasonable basis for the agency’s action, the court should stay its hand even though it might, as an origin al proposition, have reached a different conclusion as to the proper administrati on and application of the procurement regulations.’” Honeywell, Inc. v. Unite d States, 870 F.2d 644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D .C. Cir. 1971)).

B. Injunctive Relief

As the Federal Circuit has held:

In deciding whether a permanent injunction should issue, a court considers: (1) whether, as it must, the plaintiff has succeeded on the merits of the ca se; (2) whether the plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3) whether the balance of hardships to the respective parties favors the grant of injunc tive relief; and (4) whether it is in the public interestto grant injunctive relief.

PGBA, LLC v. United States, 389 F.3d 12 19, 1228-29 (Fed. Cir. 2004) (citing Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987 )). The standard for a preliminary injunction is the same, except that likelihood of success on the merits -- instead of actual success on the merits -- must be shown by the plai ntiff. Id. at 1229.

III. Analysis

There are five issues timely presented byplaintiff for the court’s consideration. The memorandum, with its list of questions presented, provides a good introduction to plaintiff’s protest grounds:

1. Whether DOE was required to consider certain ‘close at hand’ information during its eval uation of CHS’s proposal?6 2. Whether, even if not re quired to consider such information, DOE abused its discretion in failing to do so during its evaluation of CHS’s proposal?

3. Whether DOE abused its discretion in not holding discussions with CHS conc erning the identity and qualifications of the replacement general manager?

4. Whether, in failing to consider ‘close at hand information’ or hold discussions with CHS, DOE contravened the ‘best value’ requirement of the procurement?

5. Whether DOE neglecte d to provide a ‘reasoned explanation’ for its decisions not to consider ‘close at hand’ information or hold discussions with CHS, as required by this Court?

ECF No. 5 at 8-9. To address plaintiff’s que stions, the court reviews four aspects of the agency’s award decision.

First, the court reviews the propriety of the agency’s decision to restrict its consideration of Chenega’s proposal to the documents submitted on August 16, 2017, as clarified by Chenega’s admission that the proposal no longer contained a valid commitment letter from Mr. Russell. The court re views this aspect of the agency’s award under the arbitrary and capricious standard. Second, the court re views the agency’s decision to award without disc ussions, again under the arbitrary and capricious standard. Third, the court considers whether the agen cy’s best value decision was arbitrary or capricious. Fourth, the court will dete rmine whether DOE provided a rational explanation of its award decision. 3

A. Evaluation of Chenega’s Pr oposal as Submitted and Clarified

The court does not agree with plain tiff that DOE was required to modify Chenega’s proposal to reflect the proposed substitution of Mr. Miller for Mr. Russell as General Manager. The solicitation terms did not allow for late proposal modifications of this type. ECF No. 3-1 at 79-80. If the agen cy violated the terms of the solicitation in order to accommodate Chenega’s circumstan ces, the agency’s decision would fail to survive review in this court or at the GAO. The agency also coul d not favor one offeror with a proposal modification w ithout affording a similar opport unity to all offerors. Cf.,

3 The court observes that this challenge to the award decision, presented in Count IV of the amended complaint, seeks a rema nd to the agency for further explanation and/or a re-evaluation of Chenega’s proposal. See ECF No. 34 at 12.7 e.g., 48 C.F.R. § 15.306(d)(1) (2017) (discu ssions to permit proposal modifications must be held with all offerors in the competitive range); 48 C.F. R. § 15.306(e) (2017) (stating that the contracting officer “shall not engage in conduct that . . . [f]avors one offeror over another”). Thus, plaintiff’s hypothesis, that th e agency was obliged to take into account the information that Mr. Russe ll was not able to perform as General Manager and that Mr. Miller was offered by Chenega as a substitu te, is simply not in accordance with either the terms of the solicitation or the fairness principles enshrined in the Federal Acquisition Regulation (FAR).

Plaintiff’s alternative hypothesis, th at DOE abused its discretion by not considering Mr. Miller as a substitute for Mr. Russell is similarly foreclosed by the terms of the solicitation and by the FAR. DOE, in the court’s view, had no discretion to modify Chenega’s proposal in this fa shion after the proposal was submitted in August 2017, because the terms of the solicitation barred cons ideration of late m odifications. ECF No. 3-1 at 79-80. DOE cannot abuse a discreti on that it does not possess in the first place.

Although plaintiff disagrees, and argues th at DOE was not bound by the language of the solicitation, ECF No. 35 at 21, there is ample authority to the contrary. See, e.g., Argencord Mach. & Equip., Inc. v. United St ates, 68 Fed. Cl. 167, 173 (2005) (noting that bans on late proposal submissions, which are present both in the FAR and in solicitations, serve the purpose of promoti ng equal treatment of offerors) (citations omitted); Conscoop-Consorzia Fra Coop. Di Prod . E Lavoro v. United States, 62 Fed. Cl. 219, 229 (2004) (holding that solicitation language controls for determining whether a proposal was properly submitted), aff’d, 159 F. App’x 184 (Fed . Cir. 2005). Indeed, this court, considering a similar ban on late pr oposal modifications, upheld an agency’s decision to not accept a late m odification of key personnel s ubmitted by an offeror. See Masai Techs. Corp. v. United States, 79 Fed. Cl. 433, 444-45 (2007) (holding that an agency’s decision to not consider late pers onnel substitutions was proper, and that such a modification of key pe rsonnel by the agency was not perm itted by the relevant clause in the solicitation); see also Dubinsky v. United States, 43 Fed. Cl. 243, 265-66 & nn.52, 55 (1999) (noting the impropriety of accepting late proposal revisions to improve an unacceptable proposal, because such conduct violates fundamental fairness requirements in the FAR). The court finds no abuse of discretion in DOE’s observance of the late modifications rule in the solicitation.

Turning to the “too close at hand” doctrine, which, in some scenarios, obliges an agency to consider information that was not included in a pr oposal but which is known to the agency’s eval uators, the court must agree with the GAO thatChenega’s circumstance does not fall within the bounds of the doctr ine. To quote the GAO, “[w]e decline to make such a sweeping change inthe applicability of this line of decisions to effectively obligate an agency to allow a protester to amend a technically deficient proposal.” Chenega Healthcare Servs., LLC, B-416158, 2 018 CPD ¶ 200, 2018 WL 3047041, at *4 (Comp. Gen. June 4, 2018) (CHS). Indeed , Chenega has failed to cite to a single GAO8 decision, or to a case decided by this court, that extends the “too close at hand” doctrine to the substitution of key pe rsonnel listed in a proposal.

In at least one instance, moreover, this court has refused to extend the “too close at hand” doctrine to the evaluation of technical proposals. See Career Training Concepts, Inc. v. United States, 83 Fed. Cl. 215, 232 (2008) (finding no merit in the protestor’s complaint that the ag ency should have co nsidered extra-proposal information when conducting its evaluation of th e protestor’s technical/manag ement proposal). The court agrees with the analysis presented by the GAO on this issue in the CHS decision, and adopts it here. The agency’s decision to evaluate Chenega’s proposal, an evaluation founded on the documents subm itted by Chenega and on the cl arification later provided by Chenega, survives review under the arbitrary and capricious standard.

B. Award without Discussions

As the GAO stated, when an offeror is obliged to ma ke a change in the key personnel included in its proposal, the agency has a choice between evaluating the original proposal as submitted, or opening discussions to a llow for modified proposals. See CHS, 2018 WL 3047041, at *3 n.2 (“Whenthe agency is notifie d of the withdrawal of a key person, it has two optio ns: either evaluate the proposal as submitted, where the proposal would be rejected as technically un acceptable for failing to meet a material requirement, or open discussions to permit th e offeror to amend its proposal.”) (citing Gen. Revenue Corp., B-414220.2 , 2017 CPD ¶ 106, 2017 WL 2130370, at *17 (Comp. Gen. Mar. 27, 2017)). Chenega suggests that it is bad polic y to allow an agency to evaluate a proposal, as submitted, when the proposal contains an obviously invalid key personnel commitment. ECF No. 5 at 25-27. This court, however, does not review procurement policy, it reviews award deci sions under the arbitrary and capricious standard of review. This is a highly deferential standard of review. Advanced Data Concepts, 216 F.3d at 1058.

Here, where the agency info rmed offerors that DOE intended to award without discussions, any post-submissi on key personnel chan ge ran the risk of rendering the offeror’s proposal unacceptable, with no opportunity to cure the defect during discussions. Indeed, the solicitation containe d an explicit warning that the letter of commitment from the proposed General Manage r was necessary and material, and that elimination from consideration was possible in the absence of such a letter. ECF No. 3-1 at 85. The agency thus possessed the discreti on to award without discussions in precisely the scenario that Chen ega encountered, and the court finds no abuse of discretion in the agency’s decision to complete its evaluation of proposals with out entering into a round of discussions with the offerors. Further, inthe court’s view, although DOE could have proceeded differently, its decision to award without discu ssions was neither arbitrary nor capricious.9 The GAO’s analysis of DOE’s decisi on to award without discussions, notwithstanding the proposed substitution of Mr. Miller for Mr. Russell, is persuasive. See CHS, 2018 WL 3047041, at *5. Firs t, the GAO noted that the solicitation stated DOE’s intent to award without discussions, a nd that “a contracting officer’s discretion in deciding not to hold discussions is quite broad.” Id. (citation omitted). Second, the GAO observed that there are no speci fic statutory or regulatory constraints on the agency’s discretion to not hold discussions. Id. (cita tions omitted). Third, the GAO observed that there is no requirement that an agency en gage in discussions with a “technically unacceptable offeror,” such as Chenega. Id. (citation omitted ). On this basis, the GAO found no reason to sustain Chenega’s prot est which challenged DOE’s decision not to enter into discussions with the offe rors in this procurement. Id.

The court must agree with the GAO’s analysis. Contracting officers generally have broad discretion re garding whether or not to engage in discussions with offerors before award. See, e.g., Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1327-29 (Fed. Cir. 2011) (Allied) (holding that so licitation language i ndicating that any discussions would be held at the discretion of the contracti ng officer signified that the agency was not required to engage in disc ussions before disqua lifying the protestor’s proposal). Although th e agency’s discretion is not unl imited, see JWK Int’l Corp. v. United States, 279 F.3d 985, 988 (Fed. Cir. 20 02) (stating that a contracting officer possesses discretion to not conduct discussions unless there is evidence in the record of bad faith or an abuse of discretion) (citation omitted), DOE’s conduct here falls well within a reasonable exercise of discretion. 4

The general rule is that on ce offerors are warned that the agency intends to award without discussions, absent special circumstances, the contracting officer has the discretion to award without discussions. See, e.g., Rig Masters, Inc. v. United States, 70 Fed. Cl. 413, 422 (2006) (noting that Day & Zimmermann Services v. United States, 38 Fed. Cl. 591, 604 (1997), was an unusual ca se where other flaws in the procurement rendered the contracting officer’s decision not to engage in discussions an improper one). Here, there are no special circumstances or id entified flaws in the ag ency’s evaluation of

4 In its reply brief, plaintiff asserts that proposal revisions, after discussions, would have resulted in the “near certainty” of higher technical ratings for Chenega’s proposal than those assigned to Kupono’s proposal. EC F No. 35 at 17-18, 20 n.4. The opening of discussions, however, does not guarantee that proposals would remain the same except for the General Manager substitution desired by Chenega. Additional revisions by the offerors could alter the agency’s best value determination. See, e.g., Centerra Grp., LLC v. United States, No. 18-219C, 2018 WL 2731236, at *13 (Fed. Cl. June 7, 2018) (noting that a “wider range of potential outcomes” is possible if discussions are held with offerors, unlike “other types of [correc tive action which] would produce clearly measurable changes in the rati ng of a protestor’s proposal”).10 proposals. Instead, Chenega had to abandon its reliance on the General Manager it had originally proposed to the ag ency. In these not unusual ci rcumstances, DOE acted within its discretion to award without discussions. Ch enega’s protest cannot be sustained on this ground, because DOE’s award without discus sions was neither arbitrary nor capricious, and did not constitute anabuse of discretion.

C. Best Value Determination

Plaintiff’s argument concerning the agen cy’s best value determination generally asserts that the agen cy’s evaluation of Chenega’s unm odified proposal, which did not consider Mr. Miller as a substitute for Mr. Ru ssell, deprived DOE of an opportunity to obtain the proposal providing the best value to the agency. This argument was not separately presented in the amended complain t, nor was it included as a separate outline item in the table of contents of plaintiff’s memorandum. Instead, it is a thread of argument that is raised in support of Chenag a’s other challenges to the propriety of the agency’s conduct, where no late modification of Chenaga’s proposal was implemented by DOE, and no discussions with Chenega and th e other offerors were initiated by DOE. See ECF No. 5 at 21, 23, 27, 37. Plaintiff ci tes no decisions of this court or of the GAO in support of its “b est value” argument.

Plaintiff’s opening brief coul d be read to contend that an agency, to obtain the maximum number of advantageous offers fr om which it may choose the best value proposal, should bend the proc urement rules to accommodate an offeror in Chenega’s circumstances. That is not the law. The be st value evaluation procedure set forth in the solicitation contains no instruction that late modification provisio ns and the fairness provisions of the FAR should be overridden in order to improve proposals which are unsatisfactory. See ECF No. 3-1 at 82. In stead, the solicitation sets forth a specific evaluation scheme which provides the elements to be weighed by the agency in its best value determination. Id. Here, the agen cy followed that procedure and rationally determined that Chenega’s unsatisfactory technical approach prevented Chenega’s proposal from providing the best value proposa l to DOE. Id. at 148-50. DOE’s best value award was thus rational and proper un der the procurement laws. See, e.g., FirstLine Transp. Sec., Inc. v. United States, 100 Fed. Cl . 359, 388 (2011) (“It is a fundamental principle of procurement law tha[ t] an agency must conduct its best-value analysis using the evaluation factors and subfactors specified in the solicitation.”) (citations omitted).

In addition, plaintiff argues that DOE’s aw ard without discussions was an abuse of discretion because it eliminated Chenega’s opportunity to present a proposal with a satisfactory commitment from a General Manager, and thus eliminated DOE’s opportunity to choose a “best value” proposal from Chenega. 5 ECF No. 5 at 27. The

5 Defendant contends that this argument is waived because th e solicitation warned offerors that award without discussions was an ticipated by th e agency. ECF No. 31 at 1911 court notes, first, that contracting officer s exercise broad discre tion in deciding which proposal provides the best value in a best va lue procurement. See, e.g., Banknote, 365 F.3d at 1355-56 (“It is well- established that contracting officers have a great deal of discretion in making contract award decisions, particularly when, as here, the contract is to be awarded to the bidder or bidders that w ill provide the agency w ith the best value.”) (citations omitted). If the best value determin ation is grounded in reason, the court will defer to the agency’s discretion in making its best value determination. E.g., Grumman Data, 88 F.3d at 995 (citing Widnall v. B3H Corp., 75 F.3d 1577, 1 580 (Fed. Cir. 1996)).

Second, the court has found no authority that suggests that a best value procurement necessarily comprises a prelim inary step of rehabilitating unsatisfactory proposals to increase the pool of satisfactory proposals which might potentially prove to provide the best value to th e agency. Indeed, the overwhelming weight of authority indicates that a contracting officer’s discretio n to not open discussions generally trumps a protestor’s argument that the agency should have opened discussions to rehabilitate unsatisfactory proposals before making a best value contract award. See, e.g., Allied, 649 F.3d at 1327-29 (holding that the c ontracting officer’s di scretion to not open discussions with the protestor was sufficient to withstand review in that case); DynCorp Int’l LLC v. United States, 76 Fe d. Cl. 528, 539-40 (2007) (sta ting that “‘an agency is not precluded from awarding on an initial proposal basis merely because an unacceptable lower offer could be made acceptable throu gh discussions’” (quoting Century Elevator Inc., B-283822, 99-2 CPD ¶ 11 2, 1999 WL 1243117 (Comp. Gen. Dec. 20, 1999))). This discretion to not conduct discussions is prope rly exercised even, in some circumstances, where there is only one other offeror in the competition, and the agency doe s nothing to improve the second, unsatisfactory proposal through discussions before making a best value award. Dyncorp, 76 Fed. Cl. at 540. In the court’s view, that general rule applies in this case, where an unfo rtunate circumstance rendered Ch enega’s technical approach

(citing Blue & Gold Fleet, L.P. v. United St ates, 492 F.3d 1308, 1313 (Fed. Cir. 2007)). This type of waiver argument has been rejectedby the GAO and must be rejected here as well. See Sci. Applications Int’l Corp., B-413501, B-4135 01.2, 2016 CP D ¶ 328, 2016 WL 6892429, at *8 n.8 (Comp. Gen. Nov. 9, 2016) (stating th at when the agency reserved the right to conduct di scussions, the protestor “was not required to raise its claim until it became evident that the agency had, in fact, decide d to not conduct discussions”). Kupono makes a similar waiver argument, relying on XPO Logistics Worldwide Government Services, LLC v. United States , 134 Fed. Cl. 783 (2 017), aff’d, 713 F. App’x 1008 (Fed. Cir. 2018). ECF No. 30 at 15-16 & n.3. XPO is distinguishable, however, because in that case the protestor was explicitly informed that no discussions would be held before award, 134 Fed. Cl. at 799, whereas here Chenega received no such warning. Under the circumstances, the c ourt sees no waiver of a challenge to the agency’s decision not to co nduct discussions with Chenega and the other offerors.12 unsatisfactory, and Kupono’s proposal, wh ich had a higher price than Chenega’s proposal, provided best value among the proposals evaluated by the agency.

In essence, plaintiff’s cha llenge to the agency’s best value decision asks the court to supplement the evaluation scheme set forth in the solicitation with a further requirement that the agency open discussions when an offeror’s candidate for the General Manager position retracts its commitment to the proposed co ntract. This particular procedure is not set forth in the solicitation, and the court has found no support for this requirement in the FAR or precedent from this court or the GAO. Indeed, this court has been cautioned to not require that a proc uring agency supplement its evaluation procedures with additional requ irements that have not been announced to the offerors. See Alabama Aircraft, 586 F.3d at 1376 (noting that this c ourt should not “introduce new requirements outside the scope of the RFP,” be cause this would exceed “the court’s scope of review” in a bid protest). The court co ncludes that DOE’s best value determination conformed with the solicitation and establishe d caselaw, was grounded in reason, and did not constitute an abuse of discretion.

As Kupono notes, if plaintiff’s view of the law were to prevail “agencies then would be forced to engage in the time-cons uming, complicated, and resource-intensive process of conducting discussions with all offerors and evaluating proposal revisions every time one offeror has a key person . . . become unavailable at any time prior to contract award (no matter where the Agency is in the evaluation process or how soon award is to be made).” ECF No. 30 at 16-17 . The court does not believe that plaintiff’s approach adequately reflects this court’s defe rence to the contracting officer’s discretion in conducting a best value procurement. Se e, e.g., Rig Masters, 70 Fed. Cl. at 420-22 (noting that FAR provisions do not require th at discussions be held before a best value award can occur) (citing 48 C.F. R. § 15.303(b)(6) (2017) an d 48 C.F.R. § 15.306(a)(3) (2017)). Although there might be circumstan ces where a failure to conduct discussions constitutes an abuse of discretion, the court does not find any reas on why DOE could not rationally and properly choose to make its best value award without discussions here.

D. Adequate Explanation of Agency’s Award Rationale

Plaintiff asserts that DOE was required to “provide a coherent and reasonable explanation of its exercise of discretion” in making the contract award, and that the agency failed to do so in this procurement. ECF No. 34 at 11 (citing Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (F ed. Cir. 2009)). As the Federal Circuit has stated, the award decision must be documented and the rationale for the best value award must be included in that documentation:

Federal Acquisitions Regulation 15 .308 states “[t]he source selection decision shall be documented, and the documentation shall include the rationale fo r any business judgments and tradeoffs made or relied on by the [Source Selection13 Authority], including benefits associated with additional costs.” 48 C.F.R. § 15.308.

Croman Corp. v. United States, 724 F.3d 1357 , 1365 (Fed. Cir. 2013 ). Although the need for a reasonable explanation of the agency ’s award decision is well-established in precedent, the court does not find that DO E’s award decision, as explained by the documents referenced by the parties in this case, fails the arbitrary and capricious standard of review.

Plaintiff argues that DOE failed to expl ain why it did not use “too close at hand” information to modify Chenega’s proposal to replace Mr. Russell with Mr. Miller, and also failed to explain why it chose to make an award without the discussions that would have permitted Chenega to modify its propos al in this regard, and concludes that a remand to the agency is proper. ECF No. 5 at 30-31. In other words, simply because the best value decision of the ag ency failed to explicitly disc uss the “too close at hand” doctrine, and failed to address, in detail, w hy the agency opted to make its award, as expected, without discussions, plaintiff contends that a remand to DOE is required. Id. The court notes that plaintiff’s argument, taken to extremes, would compel a remand in every bid protest where the agency’s award decision fails to mention and address each and every protest ground later raised by the plaintiff. This is not the law.

Generally, the agency’s decision-making pr ocess must provide a “rational basis” for the award. Croman, 724 F.3d at 1365. When documenting a best value rationale, the decision must show that the source selection au thority considered “the type of detail that is warranted” by the circumstances of the proc urement. Id. at 1367. Here, the agency properly considered the inform ation before it in five propos als, and selected the best value proposal in accordance withthe evaluation criteria set forth in the solicitation. DOE’s rationale for making its best value d ecision is adequately documented, and shows that the agency did not stra y from the evaluation factors se t forth in the solicitation. Although plaintiff apparently wo uld prefer that the agency sp ecifically justify its decision to not conduct discussions, the court finds th at DOE’s award decision rationally explains the selection of Kupono’s more expensive, satisfactory proposal over Chenega’s less expensive, unsatisfactory proposal.

E. Plaintiff’s Alternative Protest Ground Is Waived and without Merit

Plaintiff raises an alternative protest ground in its amended complaint and reply brief, both filed July 9, 2018. See ECF No. 34 at 12-13; ECF No. 35 at 27-31. Although plaintiff continues to contend that DOE did no t enter into discussion s with Chenega, see ECF No. 34 at 6, plaintiff now contends, in the alternative, that discussions were held with all of the offerors and that these disc ussions were not meaningful, in contravention of the venerable principle that discussions he ld with offerors mustbe meaningful. See ECF No. 35 at 30 (quoting Dynacs Eng’g Co . v. United States, 48 Fed. Cl. 124, 131 (2000)). This argument is wa ived and without merit.14 The full extent of the communicati on between Chenega and DOE was that Chenega was required to confirm (or deny ) that its letter of commitment from Mr. Russell was still valid, and confirm that Chen ega was willing to extend the validity of its proposal by sixty days. ECF No. 26-2 at 313-15. Thus, the nature of the communication between DOE and Chenega was cl ear to Chenega in February 2018. Id. The agency specifically described these communications as clarifications which did not permit revisions to Chenega’s proposal. Id.

Plaintiff did not contend that these clarific ations were actually discussions, or that these alleged discussions were invalid becaus e they were not meaningful, until plaintiff filed its amended complaint and reply brief at the close of the br iefing of plaintiff’s motion for a preliminary injunc tion on July 9, 2018. See ECF Nos. 34, 35. As such, plaintiff’s argument in this regard is not properly before the court. See, e.g., Novosteel SA v. United States, 284 F.3d 1261, 1274 (Fed. Cir. 2002) (fi nding that a party waived an argument that was first presented to the trial judge in a reply brief). Although the nature of the communications that occurred with the other offerors in Febr uary 2018, when DOE made the same requests regard ing key personnel commitments and sixty-day extensions of the validity of proposals, was not necessari ly known to Chenega before it filed its bid protest complaint here, that knowledge, or la ck of knowledge, is irrelevant. Chenega already knew that its communications with DOE were styled as clarifications, not discussions, and could have raised its “meaningful disc ussions” challenge to those communications in its opening motion filed June 18, 2018. 6 Because plaintiff did not timely raise this argument, it is waived. Novosteel, 284 F.3d at 1274.

Even if Chenega’s “lack of meaningful discussions” challenge to the award to Kupono had been timely raised , it lacks merit. Requesting that offerors extend the validity of their proposals does not constitu te discussions. See Enter. Servs., LLC, B-415368.2, 2018 CPD ¶ 44, 2018 WL 774278, at *17 & n.23 (Comp. Gen. Jan. 4, 2018) (stating that “requesting that an offeror verifyits price or extend the acceptance period of its proposal does not, without more, constitute discussions”) (citations omitted). Further, asking that offerors confirm the availability of key personnel and extend the validity of their proposals does not constitute discussi ons. See Equa Sols., Inc., B-409848.2,

6 Indeed, the only “discussions” that would be of concern to a protestor in these circumstances, where discussions are allege d to have not been meaningful, are the agency’s discussions with the protestor whic h did not permit the protestor to revise its proposal in weak areas. Cf. Dynacs, 48 Fed. Cl. at 131 (noting that meaningful discussions permit an offeror to address propo sal deficiencies in order to improve its chances of award) (citations omitted). Here, Ch enega knew before filing its protest that it was not given a chance to revise its propos al regarding its choice of General Manager. Plaintiff possessed, therefore, all the inform ation required to contest the meaningfulness of “discussions” between Chen ega and DOE, and did not do so in its opening brief.15 B-409848.3, 2014 CPD ¶ 354, 2014 WL 7015238, at *7 (Comp. Gen. Nov. 20, 2014) (finding that a solicitation amendment allo wing the resubmissi on of key personnel resumes and an extension of th e validity of proposals did not signify that th e agency had entered into discussions with the offerors). DOE did not ente r into discussions with the offerors in this procurement; thus, plaintiff’s challenge to the valid ity of “discussions” is inapplicable to these facts.

F. Preliminary Injunctive Relief Not Warranted

Plaintiff has not shown likelihood of succe ss on the merits of its protest. This weighs heavily against the issu ance of a preliminary injunction. See, e.g., FMC Corp. v. United States, 3 F.3d 4 24, 427 (Fed. Cir. 1993) (“Absent a showing that a movant is likely to succeed on the merits, we question wh ether the movant can ever be entitled to a preliminary injunction unless some extraordinary injury or strong pub lic interest is also shown.”). Indeed, the Federal Circuit has heldthat a failure to sh ow likelihood of success on the merits is dispositive. See Nat’l Steel Car, Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir. 2004) (stating that “a movant is not entitled to a preliminary injunction if he fails to demonstrate a like lihood of success on the merits”) (citation and footnote omitted). The court briefly discu sses the other injunctive relief factors.

The court does not see how the public inte rest would be servedby delaying this procurement so that this court could re-examine an award decision that has survived a merits review at the GAO and a preliminary review in this forum. See Wind Tower Trade Coal. v. United States, 741 F.3d 89, 101 (Fed. Cir. 2014) (agreeing with the lower court that “no strong public interest [in th e issuance of a preliminary injunction] was demonstrated” in that case when the movant had failed to show likelihood of success on the merits). Further, irreparable harm to plai ntiff is not established because the protestor has not shown likelihood of success on the merits . See Akal Sec., Inc. v. United States, 87 Fed. Cl. 311, 319-20 (2009) (stating that the “strength or weakness of [the protestor’s] merits arguments largely determines the court’s view of irreparable injury”).

Finally, there is more harm to DOE a nd Kupono flowing from an injunction of contract performance than there is to plaintiff in the absence an injunction, where plaintiff has not shown likelihood of success on the mer its. DOE has already delayed its transition to a follow-on contract to accommodate Chen ega’s protests at the GAO and in this forum. Although the parties hotly dispute whether the delays of Kupono’s contract performance have had negative impacts on DO E and Kupono, see ECF Nos. 30-1, 31-1, 35-1 at 1-6, the court finds at least some of the alleged harmful impacts of procurement delays on DOE and Kupono to be credible. Further delays of the transition would likely continue to impose at least some costs on the agency and Kupono , whether or not a bridge contract is currently fulfilling the agency’s needs.

As for the harm to Chenega, an injunc tion during the pendency of the court’s consideration of the merits of plaintiff’s protest would buy plain tiff’s sister company16 additional weeks of contract performance before Kupono would likely, again, be confirmed as the actual follow-on contract awar dee. See ECF No. 3-1 at 160-61. Thus, in the court’s view, only very limited economic harm to plaintiff and its sister company could be avoided by the issuance of a prelimin ary injunction. This harm is less severe than the harm that DOE and Kupono are likely to suffer wh ile this second bid protest lodged by Chen ega draws to a conclusion . When all four of the injunctive relief factors are considered, plaintiff’s request fo r a preliminary injunction must be DENIED

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G. Defendant’s Motion to Dismiss

Defendant’s motion to dismiss relies on materials submitted by the parties that are outside the pleadings. ECF No. 31 at 17-18, 20-22. Under Rules 12(b)(6) and 12(d) of the Rules of the United States Court of Fede ral Claims (RCFC), RC FC 12(b)(6) motions must be converted to summary judgment pro ceedings, under RCFC 56, should the court decide to consider materials outside the pleading s. In this case, as in most bid protests, however, an administrative record will prov ide the basis for further proceedings, if required, under RCFC 52.1(c). It would not be efficient to convert defendant’s RCFC 12(b)(6) motion under these circumstances . Because the court could not grant defendant’s motion without considering mate rials outside the pleadings, and because summary judgment proceedings are not an efficient use of the court’s and the parties’ resources, defendant’s motion to dismiss is DENIED

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IV. Conclusion

Accordingly,

(1) Plaintiff’s motion for a preliminary injunction, ECF No. 4, is DENIED ;
(2) Defendant’s motion to dismiss pursuant to RCFC 12(b)(6), ECF No. 31, is also DENIED ;
(3) On or before July 27, 2018 , the parties shall CONFER and FILE a Proposed Redacted Version of this opinion, with any competitionsensitive or otherwise protectabl e information blacked out; and,

(4) On or before July 27, 2018 , the parties shall CONFER and FILE a Joint Status Report proposing a schedule for further proceedings, if any, in this
matter.

IT IS SO ORDERED.17 s/Patricia Campbell-Smith PATRICIA CAMPBELL-SMITH Judge