In the United States Court of Federal Claims

No. 20-449C

Filed: September 12, 2020

Redacted Version Issued for Publication: October 1, 20201

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Post-Award Bid Protest; Motion to 

Dismiss; Standing; Trade-Off 

Analysis.

ASSET PROTECTION & SECURITY 

SERVICES, L.P.,

 Protestor,

v.

UNITED STATES,

 Defendant,

v.

AKIMA GLOBAL SERVICES, LLC, 

 Defendant-Intervenor.

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

David T. Ralston, Jr. Foley & Lardner LLP, Washington, DC for protestor. With 

him were Julia Di Vito and Frank Murray, Foley & Lardner LLP, Washington, DC.

Daniel B. Volk, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, 

Department of Justice, Washington, DC, for defendant. With him were Douglas K. 

Mickle, Assistant Director, Commercial Litigation Branch, Robert E. Kirschman, Jr., 

Director, Commercial Litigation Branch, and Ethan P. Davis, Acting Assistant Attorney 

General, Civil Division. Of counsel was Javier A. Farfan, Associate Legal Advisor, United 

States Immigration and Customs Enforcement.

C. Peter Dungan, Miles & Stockbridge P.C., Washington, DC for defendantintervenor. With him were Alfred M. Wurglitz and Annie M. McGuire, Miles & 

Stockbridge P.C.

1 This Opinion was issued under seal on September 12, 2020. The parties were asked to 

propose redactions prior to public release of the Opinion. This Opinion is issued with the 

redactions that the parties proposed in response to the court’s request. Words which are 

redacted are reflected with the notation: “[redacted].”
2

O P I N I O N

HORN, J.

In the above-captioned, post-award bid protest, protestor Asset Protection & 

Security Services, L.P. (Asset, also referred to as APSS) challenges the decision by the 

Department of Homeland Security, United States Immigration and Customs Enforcement 

(ICE) to award a contract to intervenor Akima Global Services, LLC (Akima, also referred 

to as AGS), arguing that the award was unreasonable, irrational, and arbitrary and 

capricious. 

FINDINGS OF FACT

On August 22, 2016, ICE issued a request for proposals for services, Solicitation 

No. HSCEDM-16-R-00001 (the Solicitation), to operate a detention center in Florence, 

Arizona. The Solicitation begins:

SOLICITATION FOR GUARD, FOOD AND TRANSPORTATION 

SERVICES – FLORENCE SERVICE PROCESSING CENTER, 

FLORENCE AZ

*Offerors must propose price/cost in order to be considered for award. 

Offerors who fail to propose price/cost will be eliminated from competition 

and will not be considered for award.

(capitalization in original).

The August 22, 2016 Solicitation indicated that “[t]he price/cost will consist of one 

(1) Two-month transition period and one (1) Ten-month base period with seven (7) oneyear option periods, followed by a six (6) months extension in accordance with FAR 

52.217-8.” The Solicitation, as evaluated, had four evaluation factors: (1) Demonstrated 

Technical/Management Capability, (2) Past Performance, (3) Administration, and (4) 

Price.2 The December 19, 2019 Source Selection Award Decision Memorandum, as 

issued by the agency and signed by contracting officer serving as the source selection 

authority, explained:

The four evaluation factors for this procurement are in descending order of 

importance.

1) Demonstrated Technical/Management Capability

2) Past Performance,

2 The August 22, 2016 Solicitation indicated that “[t]here are three evaluation factors for 

this procurement: 1) Demonstrated Technical/Management Capability, 2) Past 

Performance, and 3) Price.” Although the Solicitation, as amended, included four 

evaluation factors, with the addition of the evaluation factor of Administration, price was 

always an evaluation factor.
3

3) Administration, and

4) Price[.]

For Evaluation Factor 1 - Demonstrated Technical/Management Capability, offerors’

proposals were to be evaluated on the “ability to fulfill the technical requirements while

meeting quality requirements and the Offeror’s business approach.” Evaluation 

Factor 1 - Demonstrated Technical/Management Capability had four sub-factors: Subfactor 1: Performance Work Statement; Sub-factor 2: Quality Control Plan; Sub-factor 3: 

Transition Plan; and Sub-factor 4: Staffing Plan. Evaluation Factor 1 and the Sub-factors 

for Evaluation Factor 1 were to be evaluated as: Outstanding, Good, Acceptable, 

Marginal, and Unsatisfactory. For Evaluation Factor 2 – Past Performance, offerors were 

required to submit three past performance contracts. Past Performance was to be 

evaluated as: Substantial Confidence, Satisfactory Confidence, Limited Confidence, No 

Confidence, or Unknown Confidence. Evaluation Factor 3 – Administration had four subfactors: Sub-factor 1: Offer Letter; Sub-factor 2: Signed Solicitation Documents; Subfactor 3: Small Business Subcontracting Plan; and Sub-factor 4: Key 

Personnel/Resumes. For Evaluation Factor 3 – Administration the offerors’ proposals

were evaluated for compliance with the four Sub-factors. Evaluation Factor 3 was to be 

rated as Pass, Fail, or Not Applicable. The final Evaluation Factor was Evaluation Factor 

4 – Price, which “was not adjectively rated but considered a factor in the best value 

determination,” and according to the Solicitation, “[o]fferors who failed to propose pricing 

were eliminated from competition and were not considered for award.” 

Consistent with the above, the Solicitation, as amended by Amendment 17, which 

was issued on May 28, 2019, indicated: 

Pricing 

The government is requesting a pricing quote from Offerors. Offerors are 

encouraged to provide reasonable, but competitive prices and submit 

pricing structures in accordance with the PWS [Performance Work 

Statement].

The pricing structure consists of one (1) sixty (60) day transition, One (1) 

ten (10) month base period and seven (7) one year options, followed by a 

six (6) month extension in accordance with FAR 52.217-8. If an award 

results from this solicitation, the Government intends to fund any Task 

Orders through annually appropriated funds.

Note: Pricing shall be submitted in the following two (2) areas:

1.) Section B of the solicitation (Standard Form 33/Optional Form 336);

2.) Attachment 5 CLIN [Contract Line Item Number] Summary

The Government expects that adequate price competition will result from 

this solicitation thereby negating the need for Offerors to submit certified 
4

cost and pricing data (See FAR 15.403-1). A price analysis will be 

performed to assess the reasonableness of the proposed prices under the 

firm fixed price contract. The Government will conduct its price analysis 

using one or more of the techniques specified in FAR 15.404-1(b). However, 

in order to determine a fair and reasonable price in accordance with FAR 

15.403-3(a)(1)(ii) and 15.403-5(b)(2), the Government shall require other 

than certified cost and pricing data in responses to this RFP.

. . . .

Contingency Pricing:

All proposed pricing must be accordance with [FAR] 52.222-43. Any form 

of contingency pricing is unacceptable and your proposal will be removed 

from competition as unresponsive. 

(emphasis in original) (brackets added).

As indicated in the Source Selection Award Decision Memorandum:

All Sub-factors under Factor 1 were rated with equal importance. The 

Demonstrated Technical/Management Capability (Factor 1) is more 

important overall than Past Performance (Factor 2). Evaluation Factors 1 

and 2 are more important that Evaluation Factor 3 (Administration). When 

combined, Demonstrated Technical/Management Capability, Past 

Performance, and Administration, are significantly more important than 

Price (Factor 4).

On December 5, 2016, the agency issued Amendment No. 5 to the Solicitation, 

which answered questions raised by prospective offerors. Question 246 asked: “Arizona 

charges 4.5% ‘business tax’; will the Federal Government issue a tax exemption 

certificate to the successful offeror?” to which the agency responded: “Yes.”

There were six offerors to the Solicitation, including protestor Asset, intervenor

Akima, and AKHI, LLC (AKHI). The initial award was made to Akima on September 26, 

2018. As indicated in the December 19, 2019 Source Selection Award Decision 

Memorandum for the award currently being protested, “[t]he Government received two 

GAO [Government Accountability Office] protests of award; one from APSS and one 

from AKHI respectively. AKHI submitted a Supplemental Protest to GAO as well. All 

protests were dismissed by GAO due to the Government’s willingness to take corrective 

action.” The GAO dismissed those protests on November 9, 2018.

After the agency agreed to take corrective action, on May 21, 2019, the agency 

issued Amendment 16 to allow discussions with the offerors, and four offerors, including 

protestor Asset, intervenor Akima, and AKHI, submitted timely, revised proposals by May 

30, 2019. After review of the offerors’ proposals, on May 31, 2019 the agency issued 

Amendment 19 to clarify the agency’s answers to Question 236 and Question 246, the 
5

questions and answers the agency had previously provided. Regarding Question 246, 

Amendment 19 stated:

Question#246: Arizona charges 4.5% “business tax”; will the Federal 

Government issue a tax exemption certificate to the successful offeror?

Initial Government Response: Yes

Corrected Government Response: The Government CANNOT delegate its 

tax exempt status to contractors for the performance of government 

services.

(capitalization in original). Also on May 31, 2019, the agency sent an email to Asset which 

stated: “Attached is Amendment 0019 concerning HSCEDM-16-R-00001. Please review 

the documentation and respond accordingly.” The same day, May 31, 2019, [redacted],

the Vice President of Contract Administration & Business Development for Asset emailed 

the agency and stated: “I have reviewed, signed and attached Amendment 19 hereto. 

Asset’s proposal does not require further revision.” On June 4, 2019, the agency issued

Amendment 20, to provide further “clarification to the pricing proposed by Offerors and to 

Question 236 and Question 246 of the Questions and Answers.” Amendment 20 

reiterated the language of Amendment 19, and stated, with regards to Question 246: 

2. Provide clarification to question and answer.

Question#246: Arizona charges 4.5% “business tax”; will the Federal 

Government issue a tax exemption certificate to the successful offeror?

Initial Government Response: Yes

Corrected Government Response: No, the Government CANNOT delegate 

its tax exempt status to contractors for the performance of government 

services.

(capitalization in original). Also on June 4, 2019, the agency sent an email to Asset which 

stated: “Attached is Amendment 0020 concerning HSCEDM-16-R-00001. Please review 

the documentation and respond accordingly. Required documents are due by 

Wednesday June 5, 2019 at 1100 EST.” The same day, June 4, 2019, [redacted] emailed 

the agency and stated: “Asset has reviewed it [sic] price proposal in response to

Amendment 20. No changes are deemed necessary.” Asset’s price proposal, therefore, 

continued to remain unchanged, and Asset’s price proposal stated:

Other Direct Costs have been included in the development of the fullyloaded CLIN rates included in Section B. These costs represent the total 

cost of providing office equipment, training, medical testing, transportation 

vehicles and equipment, uniforms, duty gear, weapons, ammunition, 

communications equipment, detainee tracking and accountability system, 
6

administrative supplies, detention services, food service, certifications and 

licenses, and management to the labor force, inclusive of all shipping fees,

& handling or processing fees. Sales taxes were not charged due to the 

government’s expressed intent to provide Team Asset with a tax-exempt 

certificate, where applicable.

On August 21, 2019, the agency again issued the award to the intervenor Akima. 

The agency notified protestor Asset of the award on the same day and subsequently

provided Asset with an August 28, 2019 debriefing letter. The August 28, 2019 debriefing 

letter informed Asset it was not eligible to receive the award because of defective pricing 

in its proposal, and stated: 

APSS was ineligible to receive award due to defective pricing. In 

accordance with the solicitation “All proposed pricing must be in accordance 

with 52.222-43. Any form of contingency pricing is unacceptable and your 

proposal will be removed from competition as unresponsive.” APSS offered 

contingency pricing on pg. 57 of their Volume IV proposal. APSS stated 

“sales taxes were not charged due to the Government’s expressed intent to 

provide Team Asset with a tax-exempt certificate, where applicable.” The 

Government provided two amendments, 0019 and 0020, informing all 

Offerors that the Government will not provide the tax-exempt number and 

APSS failed to make the correction. 

On September 3, 2019, Asset timely filed a second GAO bid protest.

3

Subsequently, the agency again indicated its intent to take corrective action, and on 

October 1, 2019, the GAO dismissed Asset’s September 3, 2019 protest. Thereafter, on 

November 21, 2019, the agency issued Amendment 21. Amendment 21 stated:

The purpose of Amendment 0021 to HSCEDM-16-R-00001 is to 

incorporate WD 2015-5469, Rev.-10, dated August 2, 2019 into the 

solicitation.

1. Offerors are only allowed to provide updates to their pricing in 

Volume IV. Offerors shall not alter any narratives. Updates to the pricing in 

Volume IV are due November 25, 2019 at 0900 EST.

2. Offerors need to confirm that their proposals are valid through April 

2020.

(capitalization in original). On November 21, 2019, [redacted] responded to the agency: 

“Asset confirms that its proposal is valid through April 30, 2020,” and confirmed that “[n]o 

3 As with the previous protest at GAO, another unsuccessful offeror also filed a bid protest 

with GAO. 
7

changes to pricing that were not caused by the new Wage Determination were made.” 4

Asset’s final proposal, stated, in language that was unchanged from its earlier May 2019 

proposal, “Asset is submitting this proposal as a Firm Fixed Price Proposal, inclusive of 

the Transition Period, Base Period, all Option Periods, and the potential 6 month 

Extension. We provided pricing for each Cost Line Item Number in this Price Proposal in 

Section B and Attachment 5.” Also unchanged from its May 2019 proposal, Asset’s pricing 

proposal, stated: “Sales taxes were not charged due to the government's expressed intent 

to provide Team Asset with a tax-exempt certificate, where applicable.”

Three offerors submitted timely responses after the corrective action: protestor 

Asset, intervenor Akima, and AKHI, and the agency evaluated the three offerors. The 

Source Selection Award Decision Memorandum provides the following evaluation 

summary for the three offerors:

Evaluation Factor 1: Demonstrated Technical/Management Capability FPR[

5

]

Offeror PWS Quality 

Control Plan

Transition 

Plan Staffing Plan Overall Rating

AGS Outstanding Outstanding Outstanding Outstanding Outstanding

APSS Outstanding Outstanding Outstanding Outstanding Outstanding

AKHI Outstanding Outstanding Outstanding Outstanding Outstanding

Evaluation Factor 2: Past Performance FPR – Offerors were not required to submit a new Past Performance 

Volume if no weaknesses or deficiencies were identified. No Offeror submitted a new Past Performance Volume.

Offeror Past Performance Rating

AGS Satisfactory Confidence

AKHI Satisfactory Confidence

APSS Satisfactory Confidence

Evaluation Factor 3: Administration FPR

Offeror Cover Letter

Signed 

Solicitation

Documents

Small Business 

Plan

Key 

Personnel/Resumes

AGS P P P P

AKHI P P N/A P

APSS P P P P

(emphasis in original). The December 19, 2019 Source Selection Award Decision 

Memorandum indicated:

4 Protestor stated in the complaint, “Asset complied with Amendment 21, and on 

November 21, 2019, timely submitted a revised price proposal revising only its pricing 

and not its price narrative (as specifically instructed by ICE).” 

5 The Solicitation states that FPR stands for “Final Proposal Revision.”
8

Period of Performance Period of Performance Dates

Transition Period (60 Days) 09/26/2018 - 11/26/2018

Base Period (10 months) 11/27/2018 - 09/25/2019

Option Period 1 09/26/2019 - 09/25/2020

Option Period 2 09/26/2020 - 09/25/2021

Option Period 3 09/26/2021 - 09/25/2022

Option Period 4 09/26/2022 - 09/25/2023

Option Period 5 09/26/2023 - 09/25/2024

Option Period 6 09/26/2024 - 09/25/2025

Option Period 7 09/26/2025 - 09/25/2026

Option Period 8 09/26/2026 - 03/25/2027

After identifying the periods of performance, the December 19, 2019 Source 

Selection Award Decision Memorandum noted “[t]he IGCE [Independent Government 

Cost Estimate] was calculated from historical contract analysis, the current contract, and 

an escalation based on prevailing wage determinations and CBAs [Collective Bargaining 

Agreements].” The Source Selection Award Decision Memorandum continued:

The Total IGCE is as follows:

Period of Performance IGCE

Transition Period (60 Days) $4,250,126.03

Base Period (10 months) $21,250,630.20

Option Period 1 $31,363,431.07

Option Period 2 $32,145,016.78

Option Period 3 $32,946,142.20

Option Period 4 $33,767,295.35

Option Period 5 $34,608,977.36

Option Period 6 $35,471,701.74

Option Period 7 $36,355,994.74

Option Period 8: FAR 52.217-8 $18,631,197.00

Extended Services: The contract will include FAR 52.217-8 “Option to Extend Services” for an additional six (6) 

months of services; if necessary. The total estimated value of the effort is $280,790,512.47.

(emphasis in original). The Source Selection Award Decision Memorandum provides the 

following evaluation summary regarding pricing:

Evaluation Factor 4: Price Analysis FPR

Offeror Proposed Price Price Percentage Differential

AKHI $263,413,870.66 Lowest Offer

APSS $273,697,209.72 3.903%

AGS $276,950,519.31 5.138%

(emphasis in original). In addition, the agency performed a best value trade-off analysis, 

and as explained in the December 19, 2019 Source Selection Award Decision

Memorandum: 
9

Award was made through a trade-off evaluation in accordance to the 

evaluation process used to select the proposal that represents the best 

value to the Government as described above and based on these four 

categories:

1) Demonstrated Technical/ Management Capability (Factor 1),

2) Past Performance (Factor 2),

3) Administration (Factor 3), and

4) Cost/Price (Factor 4).

The Source Selection Award Decision Memorandum further explained:

The Government intends to award to the Contractor’s proposal that 

represents the overall best value to ICE in accordance with the Solicitation’s

award selection process. The best value determination was made by 

comparing the differences in the factor ratings and price and conducting a 

trade-off analysis of benefits of superior abilities and probability of 

successfully performing the contract versus the added cost. The best value 

determination is determining when a superior technical capability is offered 

that outweighed significantly higher overall costs.

AGS, APSS, and AKHI were evaluated and received the highest technical 

rating “Outstanding”; AKHI’s proposal offered the lowest price. APSS’ 

offered the second lowest price. AGS’s proposal offered the highest price. 

A trade-off analysis of the difference in the ratings between AGS and APSS 

and AGS and AKHI was conducted in accordance with the Solicitation’s

Evaluation to determine the best value.

Before comparing the proposals, however, the agency concluded that:

APSS is ineligible to receive award due to defective pricing. APSS offered 

contingency pricing on pg. 57 of their Volume IV proposal. APSS stated 

“sales taxes were not charged due to the Government’s expressed intent to 

provide Team Asset with a tax-exempt certificate, where applicable.” The 

Government provided two amendments, 0019 and 0020, informing all 

Offerors that the Government will not provide the tax-exempt number and 

APSS failed to make a correction to their price proposal. Nevertheless, the 

Government performed a tradeoff analysis in accordance with the 

solicitation.

The December 19, 2019 Source Selection Award Decision Memorandum has a 

detailed breakdown in the trade-off section regarding each element of the proposals. For 

the Evaluation Factor 1: Demonstrated Technical/Management Capability, the Source 

Selection Award Decision Memorandum indicated: “AGS ‘Outstanding’ proposal offers 

overall best value above APSS’ Outstanding proposal. AGS provides a superior technical 
10

capability over APSS.” For Evaluation Factor 2 – Past Performance, the Source Selection 

Award Decision Memorandum stated: “Past Performance Determination Both AGS and 

APSS received a Satisfactory Confidence level. The Government has an equal 

reasonable expectation that the both Offerors will successfully perform.” (capitalization 

and emphasis in original). For Evaluation Factor 3 – Administration, the Source Selection 

Award Decision Memorandum stated: “Both AGS and APSS were rated overall ‘Pass.’” 

For Evaluation Factor 4 – Price, the Source Selection Award Decision Memorandum 

stated:

Factor 4 – Price 

The Government conducted its price analysis using one or more of the 

techniques specified in FAR 15.404-1(b) as per the solicitation. The 

Government utilized FAR 15.404-1(b)(2)(i) and determined that the prices 

offered by both AGS and APSS are fair and reasonable based on adequate 

competition. The Government outlines this analysis below:

Offeror FPR Price Price Percentage Differential

APSS $273,697,209.72 N/A

AGS $276,950,519.31 1.119%

(capitalization and emphasis in original).6 The Source Selection Award Decision 

Memorandum explained: 

Additionally, the evaluated price will be based upon the provision of a 

monthly rate for guaranteed minimum of 392 detainee beds each day 

(i.e., FPC[

7

] capacity of 392) and a bed day rate for detention services 

for the housing and care of up to an additional 320 detainees above the 

guaranteed minimum (i.e. Florence Staging Facility capacity of 320). 

Offerors shall propose a monthly rate for CLINs X002A which assumes 

full capacity at FPC and a bed day rate for detainees in custody above 

the guaranteed minimum for CLINs X002B.

In accordance with the solicitation, The [sic] Government has generated 

a bed day rate comparison based on the 392 GM [Guaranteed Minimum]

bed CLIN for AGS and APSS based on their proposed 392 GM pricing. 

[redacted]

The trade-off analysis between protestor Asset and intervenor Akima concluded: “TradeOff Determination: The Government has determined that AGS offered superior 

6 The court notes that the Akima’s price as listed in the trade-off analysis with Asset is 

different than the one listed in the trade off analysis with AKHI or in the final Source 

Selection decision.

7

“FPC” is not defined in the record before the court. “FDC,” however, is defined in the 

Solicitation as the Florence Detention Facility. 
11

solutions/approach to APSS, as determined though the evaluation factors, merits a higher 

price, and therefore represents the best value to the Government.” (capitalization and 

emphasis in original).

The trade-off analysis in the Source Selection Award Decision Memorandum 

concluded:

8

PART IV: SOURCE SELECTION

Offeror

Demonstrated

Technical/Management 

Capability FPR

Past Performance Administration Price

AGS Outstanding Satisfactory Confidence Pass $276,950,519.31

APSS Outstanding Satisfactory Confidence Pass $273,697,209.72

AKHI Outstanding Satisfactory Confidence Pass $263,413,870.66

The results of the above consensus ratings revealed the following: 

1. AGS, APSS, and AKHI all received an overall rating of ‘Outstanding’ in 

the most important evaluation factor, Factor 1, Demonstrated 

Technical/Management Capability. However, upon further analysis the 

Outstanding ratings are not equal. AGS provides the best value to the 

Government in terms of their proposed Demonstrated 

Technical/Management Capability, Quality Control Plan, Transition Plan, 

and Staffing Plan. 

2. Based on the evaluation of Factor 2, Past Performance, all vendors 

received a Satisfactory Confidence rating. Based on the submitted 

contracts from vendors, the Government has a reasonable expectation that 

the Offerors will successfully perform. 

8 The Source Selection Award Decision Memorandum also provided a comparison 

between AKHI and intervenor Akima, in a similar format to the comparison between Asset

and Akima. The price evaluation in the trade-off analysis between AKHI and Akima stated:

Offeror FPR Price Price Percentage Differential

AGS $276,656,452.43 N/A

AKHI $263,168,313.44 5.138%

(capitalization and emphasis in original). The trade-off analysis between AKHI and Akima 

concluded: “Trade-Off Determination: The Government has determined that AGS 

offered superior solutions/approach to AKHI, as determined though the evaluation factors, 

merits a higher price, and therefore represents the best value to the Government,”

(capitalization and emphasis in original). The trade-off analysis between AKHI and Akima, 

however, is not an issue before the court. 
12

3. All Offerors were rated “Pass” for all subfactors in Evaluation Factor 3. 

AKHI was the only vendor that received a “N/A” for the “Utilization of Small 

Business” due to the Offeror being a Small Business. 

4. For Factor 4, Price, AKHI offered the lowest Total Evaluated Price at 

$263,413,870.66 but offered the second highest bed day rate; [redacted], 

and the lowest above GM bed day rate, [redacted]. The second lowest 

Offeror, APSS, offered pricing that was $10,283,339.06 (3.903%) higher 

than the lowest price but offered the highest bed day rate; [redacted], and 

highest above GM [redacted]. However, APSS’ pricing was determined to 

be noncompliant with the solicitation requirements. APSS offered 

contingency pricing on the belief that the Government would provide their 

tax-exempt certification number. The Government provided two 

amendments, 0019 and 0020, informing all Offerors that the Government 

will not provide the tax-exempt number and APSS failed to make a 

correction to their final pricing after amendments 0019 and 0020 were 

issued. AGS offered pricing that was $13,536,648.65 (5.138%) higher than 

the lowest price; but offered the lowest bed day rate; [redacted], second 

highest above GM bed day, [redacted]. All proposed prices, to include 

options, were evaluated and determined fair, balanced and reasonable. 

5. Based on my review of the specific individual strengths and the evaluated 

factors, AGS offers the best value to the Government. This determination 

was reached in accordance with the “Award Selection” criteria and based 

on the evaluation process established in the solicitation. All Offeror’s [sic] 

received an overall “Outstanding” rating. However, AGS provides the best 

value to the Government in terms of their proposed Demonstrated 

Technical/Management Capability, Quality Control Plan, Transition Plan, 

and Staffing Plan. All Offeror’s [sic] were rated with a ‘Satisfactory 

Confidence’ level in Past Performance. All Offerors were rated ‘Pass’ or N/A 

in all subfactors in Administration. Given the ‘Outstanding’ rating in Factor 

1, coupled with the specific strengths found within Factor 1, [sic] -

Demonstrated Technical /Management Capability, the ‘Satisfactory 

Confidence’ in Factor 2 - Past Performance, , [sic] Factor 3 - Administration, 

‘Pass’ ratings for all subfactors, and fair and reasonable price for 

Factor 4 - Price, AGS represents the best value to the Government. I 

reviewed all Technical proposals and conducted trade-off for a price 

premium with two Offerors who were technically acceptable that had a lower 

price than AGS (APSS and AKHI). Based on my review and in accordance 

with the Solicitation’s requirements, after conducting the required trade-off 

and based on the demonstrated strengths, AGS’s technical offer warrants 

a price premium. 

6. In summary, based on my integrated assessment of all proposals in 

accordance with the specified evaluation factors, sub-factors and award 
13

selection process, it is my decision that Akima Global Services’ proposal 

offers the best overall value to the Government. 

(capitalization in original). The Source Selection Award Decision Memorandum 

concluded with the following recommendation: “Based upon the above findings, in 

accordance with FAR Part 15, the Contracting Officer recommends to the Source 

Selection Authority (SSA) that award be made to Akima Global Services in the amount of 

$276,950,519.31.” 

The same day as the December 19, 2019 Source Selection Award Decision 

Memorandum was issued, the agency awarded the contract, for a third time, to intervenor

Akima. Protestor Asset filed a third GAO protest, and argued to the GAO that the agency 

unreasonably had determined that protestor’s proposal was ineligible due to a price 

contingency. Additionally, Asset argued that the agency’s evaluation and trade-off

analysis for Evaluation Factor 1: Demonstrated Technical/Management Capability, and 

specifically Sub-factors 1, 3, and 4 were unreasonable. Asset claimed that they were 

assessed a weakness under Sub-factor 1: Performance Work Statement that intervenor 

was not assessed a weakness for despite being identical to protestor. Asset claimed it 

has superior past performance, although it was given the same rating as intervenor. 

Finally, Asset alleged the best value trade-off “was based on arbitrarily determined 

benefits without the required consideration of the qualitative value of the individual 

benefits found in each offeror’s proposal, and that the best value tradeoff lacked a specific 

explanation of why Akima’s allegedly technically superior proposal merited the price 

premium over Asset’s proposal.”

On April 6, 2020, the GAO issued a decision denying Asset’s protest. See

generally Asset Prot. & Sec. Servs., L.P., B-417024.6, 2020 WL 1847740 (Comp. Gen. 

Apr. 6, 2020). Regarding the Asset’s price proposal, the GAO concluded:

On this record, we do not find reasonable the agency’s conclusion that the 

above-quoted statement in Asset’s price proposal created a contingency, or 

took exception to the solicitation’s requirements to propose a fixed price. 

While we agree that Asset’s price proposal may have relied on an incorrect 

pricing assumption, on this record, we do not find that Asset’s price proposal 

conditioned its fixed price on future negotiations. Further, to the extent that 

the solicitation expressly required the inclusion of state sales taxes, Asset’s 

proposal might reasonably be viewed as incomplete, however, nothing in 

the proposal supports the agency’s conclusion that Asset’s pricing was 

contingent on future negotiations. Nonetheless, we conclude that the 

protester was not prejudiced by the agency’s error.

Id. at *5 (footnote omitted).

9

9 Asset’s bid protest complaint notes that the GAO also found that the agency’s evaluation 

and trade-off analysis between Asset and Akima with respect to Sub-factors 1, 3, and 4

for Evaluation Factor 1: Demonstrated Technical/Management Capability, and Evaluation 

Factor 2: Past Performance, were reasonable.
14

Thereafter, Asset filed a bid protest complaint in this court. In Count 1, Asset states 

Amendments 19 and 20 “subsequently stated ICE would not provide tax-exempt 

certificates to the successful contractor. In response to these Solicitation amendments, 

Asset signed the amendments (acknowledging that ICE would not provide tax-exempt 

certificates) and stated that it did not deem any changes necessary to its previously 

provided fixed prices.” Asset claims:

The SSA [Source Selection Authority], nonetheless, repeatedly seized on 

Asset’s statement that it had not charged sales taxes, based on the 

government’s previously expressed intent to provide a tax-exempt 

certificate, to unreasonably conclude that Asset offered contingency pricing. 

The SSA further repeatedly concluded that this alleged contingency pricing 

rendered Asset’s price noncompliant with the Solicitation requirements and 

ineligible for award. 

The SSA’s evaluation and conclusion that Asset’s proposal was ineligible 

for award were unreasonable because Asset’s proposed price did not 

contain a pricing contingency, but instead contained only a pricing 

assumption. Asset’s proposal contained no indication that its firm-fixedprice would change if its pricing assumption proved incorrect, and Asset did 

not reserve a right to receive, or even request, an adjustment to its pricing 

based on the stated pricing assumption about tax-exempt certificates. 

In its complaint, Asset also argues that the agency’s evaluation of the price 

proposals was arbitrary and capricious, alleging

Asset was prejudiced by the SSA’s unreasonable determination that Asset’s 

proposal contained a pricing contingency, as the SSA expressly found, 

based on the erroneous pricing contingency conclusion, that Asset’s 

proposal was noncompliant with the Solicitation and ineligible for award. 

While the SSA then nominally included Asset’s proposal in the best value 

tradeoff, and referred therein in passing to Asset’s proposal as “technically 

acceptable,” the SSA conducted the price/technical best value tradeoff 

analysis: (1) simultaneously with expressly determining that ICE could not 

award to Asset because its proposal was ineligible for award, (2) in the wake 

an August 2019 determination to the same effect, and (3) without providing 

a record or explanation that the SSA’s unreasonable determination had 

changed. Based on ICE’s own record, then, the SSA performed, without 

explanation, a purported “best value tradeoff” in which one proposal 

deemed eligible for award was considered against another that the SSA 

simultaneously (and previously) deemed ineligible for award. Absent an 

explanation in the record as to how or why the SSA changed the finding as 

to Asset’s ineligibility, conducting such tradeoff between Asset’s and 

Akima’s proposals when the SSA had already determined Asset’s proposal 

to be ineligible for award is facially unreasonable. 
15

In addition, regarding the best value trade-off analysis, protestor claims that the 

Source Selection Award Decision Memorandum did “not even state the price difference 

between Asset’s and Akima’s grand total price proposals, and does not evidence any 

comparison of Asset’s grand total price against Akima’s grand total price, other than 

noting that Akima’s price was the highest of the three offerors included in the best value 

tradeoff,”10 and the agency “gave little or no consideration to the fact that Asset offered a 

lower grand total price as compared to Akima, as that price advantage was not specifically 

considered at all during the best value tradeoff.” Therefore, “[t]he best value tradeoff, 

which was impermissibly premised on a finding that Asset’s proposal was ineligible for 

award and a pricing evaluation that included unit pricing, was flawed and not determined 

in accordance with the Solicitation.”

Count 2 of Asset’s complaint claims that the agency’s evaluation of the technical

proposals was arbitrary and capricious. In Count 3, Asset argues that the past 

performance evaluations were flawed, because the agency “failed to substantively 

compare Asset and Akima’s proposals under the Past Performance factor, and instead 

concluded that the proposals were equivalent merely because each was assigned an 

adjectival rating of Satisfactory Confidence under the Past Performance factor.” In Count 

4, Asset alleges that “ICE’s overall decision to award the contract to Akima was 

unreasonable, arbitrary, and capricious,” and argues that “ICE failed to follow the 

Solicitation’s prescribed method of determining the best value offeror, and its conclusion 

that Akima’s proposal presents the best value to the government was not reasonable or 

adequately documented.” 

In addition, to the above four counts in the complaint, Asset stresses it has standing 

“because it was an actual bidder whose direct economic interest is affected by the award 

of the contract to Akima.” Asset claims that it’s proposal “was highly rated and lower priced 

as compared to Akima’s proposal, and Asset’s proposal was considered as one of just 

three proposals in the best value tradeoff conducted by ICE.” Therefore, according to 

protestor, “[b]ut for the errors in ICE’s evaluation and best value tradeoff, there is a 

substantial chance that Asset would have received the contract award under the 

Solicitation.”

10 The court notes that the December 19, 2019 Source Selection Award Decision 

Memorandum calculated the price percentage difference between Asset and Akima’s 

price proposals, as well as listed the three offerors’ grand total price proposals in the 

trade-off analysis. As indicated above:

PART IV: SOURCE SELECTION

Offeror

Demonstrated

Technical/Management 

Capability FPR

Past Performance Administration Price

AGS Outstanding Satisfactory Confidence Pass $276,950,519.31

APSS Outstanding Satisfactory Confidence Pass $273,697,209.72

AKHI Outstanding Satisfactory Confidence Pass $263,413,870.66
16

After Asset filed its bid protest, the court held an initial hearing. At the hearing, the 

defendant and intervenor Akima argued that protestor Asset lacked standing to bring this 

protest. After discussions with the parties, the court ordered the parties to brief the 

jurisdictional issue of standing. Defendant argues that “Asset failed to submit a proposal 

that conformed to the Solicitation’s terms.” Akima also contends “Asset’s Proposal was 

noncompliant because it contained a contingency that took exception to the RFP’s 

requirement for a firm-fixed price,” and “[o]fferors that submit noncompliant bids lack 

standing because they do not have a substantial chance of being awarded the Contract.” 

(capitalization in original). Asset responds that both motions to dismiss should be denied 

because Asset has standing to bring its bid protest in this court.

DISCUSSION

It is well established that “‘subject-matter jurisdiction, because it involves a court’s 

power to hear a case, can never be forfeited or waived.’” Arbaugh v. Y & H Corp., 546 

U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)).

“[F]ederal courts have an independent obligation to ensure that they do not exceed the 

scope of their jurisdiction, and therefore they must raise and decide jurisdictional 

questions that the parties either overlook or elect not to press.” Henderson ex rel. 

Henderson v. Shinseki, 562 U.S. 428 (2011); see also Hertz Corp. v. Friend, 559 U.S. 77, 

94 (2010) (“Courts have an independent obligation to determine whether subject-matter 

jurisdiction exists, even when no party challenges it.” (citing Arbaugh v. Y & H Corp., 546 

U.S. at 514)); Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) 

(“[A] court has a duty to inquire into its jurisdiction to hear and decide a case.” (citing 

Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed. Cir. 1990))); 

View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed. Cir. 1997) (“[C]ourts 

must always look to their jurisdiction, whether the parties raise the issue or not.”). “The 

objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a party, 

or by a court on its own initiative, at any stage in the litigation, even after trial and the 

entry of judgment.” Arbaugh v. Y & H Corp., 546 U.S. at 506; see also Hymas v. United 

States, 810 F.3d 1312, 1317 (Fed. Cir. 2016) (explaining that a federal court must satisfy 

itself of its jurisdiction over the subject matter before it considers the merits of a case); 

Cent. Pines Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed. Cir. 2012) 

(“An objection to a court's subject matter jurisdiction can be raised by any party or the 

court at any stage of litigation, including after trial and the entry of judgment.” (citing 

Arbaugh v. Y & H Corp., 546 U.S. at 506)); Rick’s Mushroom Serv., Inc. v. United States, 

521 F.3d 1338, 1346 (Fed. Cir. 2008) (“[A]ny party may challenge, or the court may raise 

sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546 

U.S. at 506; Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh’g and reh’g en

banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); and Fanning, Phillips 

& Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United States, 97 Fed. 

Cl. 71, 76, appeal dismissed, 425 F. App’x 902 (Fed. Cir. 2011). In fact, “[s]ubject matter 

jurisdiction is an inquiry that this court must raise sua sponte, even where . . . neither 

party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 

F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481, 
17

1485 (Fed. Cir.), reh’g denied and en banc suggestion declined (Fed. Cir.), cert. denied, 

525 U.S. 826 (1998)), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. granted in

part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 U.S. 975 (2005), 

cert. dismissed as improvidently granted, 548 U.S. 124 (2006).

This court has jurisdiction to hear bid protests pursuant to 28 U.S.C. § 1491(b)(1) 

(2018) of the Tucker Act, which provides that this court has 

jurisdiction to render judgment on an action by an interested party objecting 

to a solicitation by a Federal agency for bids or proposals for a proposed 

contract or to a proposed award or the award of a contract or any alleged 

violation of statute or regulation in connection with a procurement or a 

proposed procurement. 

28 U.S.C. § 1491(b)(1); see also Weeks Marine, Inc. v. United States, 575 F.3d 1352, 

1359 (Fed. Cir. 2009). The Administrative Dispute Resolution Act of 1996, codified at 28 

U.S.C. § 1491(b)(1)–(4), amended the Tucker Act to establish a statutory basis for bid 

protests in the United States Court of Federal Claims. See Impresa Construzioni Geom. 

Domenico Garufi v. United States, 238 F.3d 1324, 1330–32 (Fed. Cir. 2001). 

The Tucker Act grants the United States Court of Federal Claims “jurisdiction to

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

agency for bids or proposals for a proposed contract or to a proposed award or the award 

of a contract or any alleged violation of statute or regulation in connection with a 

procurement or a proposed procurement.” 28 U.S.C. § 1491(a)(1). In order to have 

standing to sue as an “interested party” under this provision, a disappointed bidder must 

show that it suffered competitive injury or was “prejudiced” by the alleged error in the 

procurement process. See Todd Constr., L.P. v. United States, 656 F.3d 1306, 1315 (Fed. 

Cir. 2011) (To prevail, a bid protester must first “‘show that it was prejudiced by a 

significant error’ (i.e., ‘that but for the error, it would have had a substantial chance of 

securing the contract).’” (quoting Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 

1378, 1380 (Fed. Cir. 2009)); see also Eskridge & Assocs. v. United States, 955 F.3d 

1339, 1345 (Fed. Cir. 2020) (“In a post-award bid protest, the relevant inquiry is whether 

the bidder had a ‘substantial chance’ of winning the award—specifically, whether a 

protestor ‘establish[ed] not only some significant error in the procurement process, but 

also that there was a substantial chance it would have received the contract award but 

for that error.’” (quoting Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 

1996))) (alteration in original); Blue & Gold Fleet, L.P. v. United States, 492 F.3d at 1317;

AECOM Mgmt. Servs., Inc. v. United States, 147 Fed. Cl. 285, 290 (2020); Sci. 

Applications Int’l Corp. v. United States, 108 Fed. Cl. 235, 281 (2012); Linc Gov’t Servs., 

LLC v. United States, 96 Fed. Cl. 672, 693 (2010) (“In order to establish standing to sue, 

the plaintiff in a bid protest has always needed to demonstrate that it suffered competitive 

injury, or ‘prejudice,’ as a result of the allegedly unlawful agency decisions.” (citing Rex 

Serv. Corp. v. United States, 448 F.3d at 1308; Statistica, Inc. v. Christopher, 102 F.3d 

1577, 1580–81 (Fed. Cir. 1996); Vulcan Eng’g Co. v. United States, 16 Cl. Ct. 84, 88 

(1988); Morgan Bus. Assocs., Inc. v. United States, 223 Ct. Cl. 325, 332 (1980))). In order 
18

to establish what one Judge on this court has called “allegational prejudice” for the 

purposes of standing, the bidder must show that there was a “substantial chance” it would 

have received the contract award, but for the alleged procurement error. See Linc Gov’t 

Servs., LLC v. United States, 96 Fed. Cl. at 675; Hyperion, Inc. v. United States, 115 Fed. 

Cl. 541, 550 (2014) (“The government acknowledges that proving prejudice for purposes 

of standing merely requires “allegational prejudice,” as contrasted to prejudice on the

merits . . . .”); Bannum, Inc. v. United States, 115 Fed. Cl. 148, 153 (2014); see also

Bannum, Inc. v. United States, 404 F.3d 1346, 1358 (Fed. Cir. 2005); Galen Med. 

Assocs., Inc. v. United States, 369 F.3d 1324, 1331 (Fed. Cir.), reh’g denied (Fed. Cir. 

2004); Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.), 

reh’g and reh’g en banc denied (Fed. Cir. 2003); Statistica, Inc. v. Christopher, 102 F.3d 

at 1581; Archura LLC v. United States, 112 Fed. Cl. 487, 497 (2013); Lab. Corp. of Am. 

v. United States, 108 Fed. Cl. 549, 557 (2012). Because standing is a jurisdictional issue, 

this showing of prejudice is a threshold issue. See Corus Grp. PLC. v. Int’l Trade Comm'n, 

352 F.3d 1351, 1357 (Fed. Cir. 2003); Myers Investigative & Sec. Servs., Inc. v. United 

States, 275 F.3d 1366, 1370 (Fed. Cir. 2002). 

In a post-award bid protest, such as the above-captioned bid protest, the “protestor 

must ‘establish that it (1) is an actual or prospective bidder, and (2) possesses the 

requisite direct economic interest.’” Mgmt. & Training Corp. v. United States, 137 Fed. Cl. 

780, 783-84 (2018) (quoting Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. 

Cir. 2006)); see also Digitalis Educ. Sols., Inc. v. United States, 664 F.3d 1380, 1384 

(Fed. Cir. 2012) (“An interested party is an actual or prospective bidder whose direct 

economic interest would be affected by the award of the contract. Thus, a party must 

show that it is 1) an actual or prospective bidder and 2) that it has a direct economic 

interest.”); AECOM Mgmt. Servs., Inc. v. United States, 147 Fed. Cl. at 290; PAE-Parsons 

Global Logistics Servs,. LLC v. United States, 145 Fed. Cl. 194, 198 (2019); Timberline 

Helicopters, Inc. v. United States, 140 Fed. Cl. 117, 120 (2018); Contract Servs., Inc. v. 

United States, 104 Fed. Cl. 261, 269 (2012).

As noted above, in response to defendant’s and intervenor’s motions to dismiss,

Asset argues that Asset has standing “because it was an actual bidder whose direct 

economic interest is affected by the award of the contract to Akima.” Asset claims its

proposal “was highly rated and lower priced as compared to Akima’s proposal, and 

Asset’s proposal was considered as one of just three proposals in the best value tradeoff 

conducted by ICE,” which “[b]ut for the errors in ICE’s evaluation and best value tradeoff, 

there is a substantial chance that Asset would have received the contract award under 

the Solicitation.” Asset also argues that defendant’s and intervenor’s claims that Asset 

submitted a non-responsive bid, and, therefore, lacks standing to bring the above 

captioned protest, are flawed. Asset’s pricing proposal, states, in part: 

Other Direct Costs have been included in the development of the fullyloaded CLIN rates included in Section B. These costs represent the total 

cost of providing office equipment, training, medical testing, transportation 

vehicles and equipment, uniforms, duty gear, weapons, ammunition, 

communications equipment, detainee tracking and accountability system, 
19

administrative supplies, detention services, food service, certifications and 

licenses, and management to the labor force, inclusive of all shipping fees, 

& handling or processing fees. Sales taxes were not charged due to the 

government’s expressed intent to provide Team Asset with a tax-exempt 

certificate, where applicable.

Defendant argues:

The solicitation, as amended, asked for proposals to provide the stated 

services on the condition that ICE would not grant a tax exemption 

certificate. Asset submitted a proposal in which it directly contradicted that 

condition. Instead of submitting pricing that would be valid without a tax 

exemption certificate, Asset expressly premised its pricing proposal on 

receiving the tax exemption that the solicitation ultimately said would not be 

provided. Asset’s proposal was therefore not in a form that ICE could have 

accepted for award of this contract.

Similarly, intervenor Akima contends “[p]laintiff’s proposal contains a pricing assumption 

that contradicts the RFP’s plain direction that the Agency will not issue tax exemptions,” 

and “[a]s this makes Plaintiff’s proposal ineligible for award, Plaintiff has no standing to 

protest the Agency’s source selection decision.”

The Federal Circuit has stated that “‘a proposal that fails to conform to the material 

terms and conditions of the solicitation should be considered unacceptable and a contract 

award based on such an unacceptable proposal violates the procurement statutes and 

regulations.’” Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1329 (Fed. Cir. 

2011) (quoting E.W. Bliss Co. v. United States, 77 F.3d 445, 448 (Fed. Cir. 1996)); see

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

that a proposal that did not offer to provide what the request for proposals requests was 

not responsive to the request for proposals); Gen. Dynamics Mission Sys., Inc. v. United 

States, 137 Fed. Cl. 493, 521-22 (2018); Prescient, Inc. v. United States, 125 Fed. Cl. 

475, 491 (2016). In Centech, the Federal Circuit further explained,“[t]o be acceptable, a 

proposal must represent an offer to provide the exact thing called for in the request for 

proposals, so that acceptance of the proposal will bind the contractor in accordance with 

the material terms and conditions of the request for proposals.” Centech Grp., Inc. v. 

United States, 554 F.3d at 1037. “‘A solicitation term is material where it has more than a 

negligible impact on the price, quantity, quality, or delivery of the subject of the 

[proposal].’” Transatlantic Lines, LLC v. United States, 122 Fed. Cl. 624, 632 (2015) 

(quoting Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed. Cl. 488, 505 

(2009)) (brackets in original). As explained in ManTech Advanced Systems International, 

Inc. v. United States, 141 Fed. Cl. 493 (2019):

Material requirements are those necessary in order for a proposal to 

“provide the exact thing called for in the request for proposals[.]” Bus. 
20

Integra, Inc. v. United States, 116 Fed. Cl. 328, 333 (2014) (quoting 

Centech Grp., 554 F.3d at 1037). Thus errors are considered to be material 

when they (1) violate an express provision in the RFP and (2) the provision 

served a substantive purpose. Id. at 333-36. A substantive purpose is 

something important to the government’s evaluation of the offer, is binding 

on the offeror, or has a more than negligible impact on the price, quantity, 

or quality of the bid. . . . So long as the requirement serves a substantive 

purpose, it is material. See Strategic Bus. Sol’n, Inc. v. United States, 129 

Fed. Cl. 621, 629-30 (2016) (holding that the requirement to redact parts of 

a proposal was material because it “served a substantive purpose”), aff’d, 

711 Fed. Appx. 651 (2018).

ManTech Advanced Sys. Int’l, Inc. v. United States, 141 Fed. Cl. at 507.

Moreover, “[w]aiver of a mandatory requirement of the solicitation for the benefit of 

only one offeror invalidates a procurement decision.” L-3 Commc’ns EO Tech., Inc. v. 

United States, 83 Fed. Cl. 643, 653 (2008). Although, “[w]here a defect in a bid is trivial 

or a mere formality, not material, the bid is not required to be rejected out of hand.” M.W. 

Kellogg Co./Siciliana Appalti Costruzioni S.p.A. v. United States, 10 Cl. Ct. 17, 26 (1986); 

see also E.W. Bliss Co. v. United States, 77 F.3d at 449.

As described above, on December 5, 2016, the agency issued Amendment No. 5 

to the Solicitation, which answered questions raised by prospective offerors. Question 

246 asked: “Arizona charges 4.5% ‘business tax’; will the Federal Government issue a 

tax exemption certificate to the successful offeror?” The agency responded: “Yes.” In 

Asset’s pricing proposal, regarding “Development of Other Direct Costs,” the proposal 

stated:

Other Direct Costs have been included in the development of the fullyloaded CLIN rates included in Section B. These costs represent the total 

cost of providing office equipment, training, medical testing, transportation 

vehicles and equipment, uniforms, duty gear, weapons, ammunition, 

communications equipment, detainee tracking and accountability system, 

administrative supplies, detention services, food service, certifications and 

licenses, and management to the labor force, inclusive of all shipping fees, 

& handling or processing fees. Sales taxes were not charged due to the 

government's expressed intent to provide Team Asset with a tax-exempt 

certificate, where applicable.

As indicated in the December 19, 2019 Source Selection Award Decision 

Memorandum, after taking corrective action and “[a]fter a full review of the Offeror’s [sic] 

proposals, the Government issued Amendment 0019 to the solicitation on May 31, 2019, 

to provide clarification to the pricing proposed by Offerors and to Question 236 and 

Question 246 of the Questions and Answers.” As described above, Amendment 19 

stated, in part:
21

Question#246: Arizona charges 4.5% “business tax”; will the Federal 

Government issue a tax exemption certificate to the successful offeror?

Initial Government Response: Yes

Corrected Government Response: The Government CANNOT delegate its 

tax exempt status to contractors for the performance of government 

services.

(capitalization in original). Subsequently, on June 4, 2019, the agency issued Amendment 

20, to provide further “clarification to the pricing proposed by Offerors and to Question 

236 and Question 246 of the Questions and Answers.” Amendment 20 stated, in part: 

2. Provide clarification to question and answer.

Question#246: Arizona charges 4.5% “business tax”; will the Federal 

Government issue a tax exemption certificate to the successful offeror?

Initial Government Response: Yes

Corrected Government Response: No, the Government CANNOT delegate 

its tax exempt status to contractors for the performance of government 

services.

(capitalization in original). Both Amendment 19 and Amendment 20 clearly stated that 

“the Government CANNOT delegate its tax exempt status to contractors.” (capitalization 

in original). Asset, however, chose not make any changes to its pricing proposal after the 

issuance of Amendment 19 or Amendment 20. Moreover, on May 31, 2019, after the 

issuance of Amendment 19, Asset’s Vice President of Contract Administration & Business 

Development, [redacted], emailed the agency and stated: “I have reviewed, signed and 

attached Amendment 19 hereto. Asset’s proposal does not require further revision.” 

Similarly, on June 4, 2019, after the issuance of Amendment 20, [redacted] emailed the 

agency and stated: “Asset has reviewed it [sic] price proposal in response to Amendment 

20. No changes are deemed necessary.” As noted above, after the agency issued 

Amendment 19 and Amendment 20, the agency issued Amendment 21 on November 21, 

2019, which stated: 

1. Offerors are only allowed to provide updates to their pricing in 

2. IV. Offerors shall not alter any narratives. Updates to the pricing in 

Volume IV are due November 25, 2019 at 0900 EST.

3. Offerors need to confirm that their proposals are valid through April 

2020.

On November 21, 2019, in response to Amendment 21, [redacted] responded: “Asset 

confirms that its proposal is valid through April 30, 2020,” and confirmed that “[n]o 

changes to pricing that were not caused by the new Wage Determination were made.” 
22

Therefore, Asset’s price proposal retained the language that “[s]ales taxes were not 

charged due to the government's expressed intent to provide Team Asset with a taxexempt certificate, where applicable.”

On multiple occasions the agency attempted to make the operative tax-exemption 

issue clear after including the opposite information in the Solicitation as originally issued 

and in an early question and answer supplied to the offerors. The agency gave the 

offerors multiple opportunities to revise language related to their price proposals in light 

of the change to the availability of the offerors’ ability to claim the government’s taxexempt certificates by issuing Amendment 19 and Amendment 20. Even with the 

issuance of Amendment 21, offerors were given another chance to update their pricing, 

albeit not in their narratives. After the agency issued Amendment 21, protestor did not 

raise any concerns to the agency, and as before in response to Amendment 19 and 20 

simply sent the agency a brief message from [redacted] which did not change the 

language regarding the tax-exempt certification, and which confirmed “[n]o changes to 

pricing that were not caused by the new Wage Determination were made.”

As noted above, in Allied Technology Group, Inc. v. United States, the Federal 

Circuit indicated that “‘a proposal that fails to conform to the material terms and conditions 

of the solicitation should be considered unacceptable and a contract award based on 

such an unacceptable proposal violates the procurement statutes and regulations.’” Allied 

Tech. Grp., Inc. v. United States, 649 F.3d at 1329 (quoting E.W. Bliss Co. v. United 

States, 77 F.3d at 448). The Federal Circuit in Centech Group, Inc. v. United States, 

explained that “[t]o be acceptable, a proposal must represent an offer to provide the exact 

thing called for in the request for proposals, so that acceptance of the proposal will bind 

the contractor in accordance with the material terms and conditions of the request for 

proposals.” Centech Grp., Inc. v. United States, 554 F.3d at 1037 (citing E.W. Bliss Co. 

v. United States, 77 F.3d at 448). A Judge of the United States Court of Federal Claims, 

citing to Centech Group, held that “[i]t is blackletter law that a procuring agency may only 

accept an offer that conforms to the material terms of the solicitation.” Furniture by 

Thurston v. United States, 103 Fed. Cl. 505, 518 (2012). Therefore, if the tax-exempt 

issue was material to the Solicitation, Asset’s proposal was on its face unacceptable and 

could not be chosen for award.

As also noted above, “‘[a] solicitation term is material where it has more than a 

negligible impact on the price, quantity, quality, or delivery of the subject of the 

[proposal].’” Transatlantic Lines, LLC v. United States, 122 Fed. Cl. at 632 (quoting

Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed. Cl. at 505) (brackets in 

original); see also Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. 16, 40 (2010), aff’d, 

649 F.3d 1320 (Fed. Cir. 2011). As indicated by the Judge in ManTech Advanced 

Systems International, Inc., “errors are considered to be material when they (1) violate an 

express provision in the RFP and (2) the provision served a substantive purpose,” and 

“[a] substantive purpose is something important to the government's evaluation of the 

offer, is binding on the offeror, or has a more than negligible impact on the price, quantity, 

or quality of the bid.” ManTech Advanced Sys. Int’l, Inc. v. United States, 141 Fed. Cl. at 

507 (citing Bus. Integra, Inc. v. United States, 116 Fed. Cl. 328, 333-36 (2014)).
23

Defendant cites to Business Integra, Inc. v. United States, for the proposition that the 

Business Integra protestor’s omission in its price proposal was not eligible for award even 

though the “omitted prices would have amounted to only 0.0041% of the projected Total 

Value of its proposal.” Bus. Integra, Inc. v. United States, 116 Fed. Cl. at 334. The court 

notes that the solicitation in Business Integra, Inc. v. United States explicitly stated that 

“the omission of even a single labor rate, no matter its significance, ‘will result in a material 

non-conformity.’” Id. at 331.

Intervenor Akima states that for “Asset’s failure to include the 4.5% sales tax in its 

proposal, the exclusion has to be far ‘more than a negligible impact on price.’” (quoting 

Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. at 40). Defendant also cites to the 

undersigned’s decision in Constellation West, Inc. v. United States, 125 Fed. Cl. 505 

(2015), which concluded that the Defense Intelligence Agency could properly exclude an 

offeror whose mistake in filing in the cells in its pricing proposal would have increased the 

offeror’s total price by only “‘8/1,000ths of one percent.’” See id. at 548. 

Asset argues that defendant’s motion to dismiss “repeatedly omits the crucial 

caveat at the end of Asset’s cost estimating assumption—that ICE would be providing a 

tax-exempt certificate ‘where applicable.’” (emphasis in original). Protestor claims 

[t]he revised answer to Question #246 communicated that a tax-exempt 

certificate would not be applicable anywhere. Thus, read on its face and in 

its entire, unedited form, Asset’s cost-estimating assumption is not at odds 

with the revised answer, because Asset never claimed to be basing its ODC 

calculation on the receipt of a tax-exempt certificate where one was not 

applicable.

(emphasis in original). Defendant responds that “[t]he construction Asset now espouses, 

in an effort to read the non-conforming statement out of its proposal, does not make sense 

under the facts of the case. At no relevant time was the question of whether ICE would 

provide a tax exemption certificate left indeterminate.” Defendant notes that “[w]hen 

proposals were originally due, the solicitation indicated that the exemption certificate 

would be provided. Later, the solicitation was changed to unequivocally state that the 

certificate would not be issued, and the Government would not delegate its tax exempt 

status.” (internal refence omitted). Intervenor Akima similarly states: “Plaintiff’s Response

attempts to argue that two words – ‘where applicable’– render its pricing assumption 

challenging the Agency’s stated intention not to issue tax exemption certificates a legal 

nullity. However, Plaintiff’s argument would read two words [where applicable] to the 

exclusion of the balance of its proposal.” (brackets added). Akima emphasizes that “Asset

cannot demonstrate how the phrase ‘where applicable’ qualifying Asset’s statement that 

‘Sales taxes were not charged due to the government’s expressed intent to provide a taxexempt certificate’ would have any meaning when a tax-exempt certificate would never 

be applicable.” (emphasis in original).

Notably, the language at issue is not just the “where applicable” statement, as the 

entire sentence in Asset’s price proposal states: “Sales taxes were not charged due to 
24

the government’s expressed intent to provide Team Asset with a tax-exempt certificate, 

where applicable.” Asset’s price proposal, after the issuance of Amendment 19 and 

Amendment 20, and Amendment 21, still assumed that the government had the 

“expressed intent to provide Team Asset with a tax-exempt certificate, where applicable,”

and, therefore, Asset’s price appeared to continue to anticipate tax-exemption certificate 

opportunities. The agency had originally given the offerors the impression that the 

Solicitation as issued would allow for a tax-exemption certificate. Question 246 asked: 

“Arizona charges 4.5% ‘business tax’; will the Federal Government issue a tax exemption 

certificate to the successful offeror?” to which the agency responded: “Yes.” Asset did not 

change its proposal even after the government made clear that there would be no taxexemption certificates available to the offerors. Amendment 19 and Amendment 20 are 

explicit and do not leave open the possibility of any tax-exemption certificate, as the 

amendments emphasize: “the Government CANNOT delegate its tax exempt status to 

contractors for the performance of government services.” (capitalization in original). Here,

it was an error for Asset to continue to include the tax-exemption language in its pricing 

proposal after the government clarified multiple times that an offeror could not include any 

tax-exempt opportunities regarding pricing in its proposal. As defendant argues, “[i]n this 

case, the requirement that proposals acknowledge that a state tax exemption certificate 

would not be issued was material because it was a substantive part of the contract to be 

awarded, necessarily affecting contract pricing.” By way of analogy, in ManTech 

Advanced Systems International, Inc. v. United States, 141 Fed. Cl. 493, cited above, the 

Judge noted that “there can be no question that proposing an additional labor category 

would affect DOJ’s [Department of Justice’s] price evaluation. Section 1.3.5 in ManTech’s 

proposal is reasonably read to mean that DOJ would be liable for management and labor 

costs not included on ManTech's price tables.” Id. at 509. The Judge in ManTech

Advanced Systems International, Inc. continued,

because ManTech was an incumbent DOJ may have just as reasonably 

concluded that the additional labor category and associated costs proposed 

in Section 1.3.5 are necessary for program performance. In short, DOJ 

rationally concluded that ManTech was proposing to add costs to any 

contract it received that were outside the requirements of the RFP and thus 

ManTech had made a material error in its proposal.

Id. (internal reference omitted). The failure to take into consideration that there absolutely 

would be no tax-exemption certificate, necessarily had an impact on Asset’s proposed 

firm-fixed price bid. The tax-exemption issue, therefore, had a material impact on the price 

of Asset’s bid, with the protestor still contemplating opportunities to seek future tax 

exemptions.

Asset argues that “[a]s this Court has held, an offeror’s price assumptions that do 

‘not reserve, explicitly or implicitly, a right on [the offeror’s] part to alter its pricing’ do not 

require rejection of the offer or render it ineligible for award.” (quoting Harmonia Holdings 

Grp., LLC v. United States, 136 Fed. Cl. 298, 312 (2018)) (emphasis and brackets in 

original). Asset continues, “[r]ather, such ‘assumptions serve no function other than to 

provide a more complete picture of how [the offeror] came up with its pricing.’” (quoting 

Harmonia Holdings Grp., LLC v. United States, 136 Fed. Cl. at 312) (brackets in original). 
25

The decision in Harmonia by another Judge of the United States Court of Federal Claims 

is the only case that protestor cites for this argument. In Harmonia, protestor Harmonia

Holdings Group, LLC (Harmonia) challenged the Federal Transit Administration’s (FTA’s)

conclusion that Optimal Solutions and Technologies, Inc. (OST) offered the best value to 

agency, and that OST’s proposal was superior to that of Harmonia. See id. at 302. As 

explained by the Judge in Harmonia:

Harmonia and OST were among five bidders for an information technology 

service contract; the bidders were evaluated on their technical proposals 

and price quotations to determine which provided the best value to FTA. Of 

the two, Harmonia submitted the less expensive quotation but OST's 

proposal received a higher technical rating. The Agency determined that 

OST, despite its relatively higher price, provided the best value and 

awarded OST the contract in July 2016.

Id. One of Harmonia’s arguments was that the FTA improperly failed to reject OST's price 

quotation as ineligible for award. The Judge in Harmonia explained:

OST's price quotation included various assumptions, such as, “[t]he 

[g]overnment will provide OST timely access to facilities required for the 

completion of the work aligned with this contract,” and “[t]he [g]overnment 

will provide OST timely access to staff and [s]ubject [m]atter [e]xperts . . .

required for the completion of the work assigned during this contract.” 

Harmonia argues that such assumptions “take exception to the firm-fixedprice nature of the [proposal],” which “places the risk . . . [of work] 

exceed[ing] the estimated level of effort” on the contractor. Although the 

assumptions were not included in the terms of the awarded contract, 

Harmonia claims that they still reserve to OST “the right to a price 

adjustment any time it encounters [anything] . . . not specifically identified in 

the [statement of work].”

Id. at 312 (internal references omitted; brackets in original). The Judge in Harmonia

concluded:

Here, there is nothing in the record to support the assertion that OST’s 

assumptions are anything more than an “illustrat[ion] that OST understood 

the [s]olicitation’s requirements and the scope of the work.” Despite 

Harmonia's assertions to the contrary, none of OST’s assumptions reserve, 

explicitly or implicitly, a right on OST's part to alter its pricing. . . . OST’s 

assumptions serve no function other than to provide a more complete 

picture of “how OST came up with its pricing.” 

Id. (internal references omitted). As intervenor Akima notes, “[t]he court found it 

unremarkable that the awardee expected the government to provide required resources

and facilities,” assumptions unrelated to a potential price change, and as such the 

assumptions in Harmonia did not change the nature of its price proposal. The reservation 

in Asset’s price proposal, “[s]ales taxes were not charged due to the government’s 
26

expressed intent to provide Team Asset with a tax-exempt certificate, where applicable,” 

however, was part of Asset’s price proposal and did not align with the requirements of the 

amended Solicitation and demonstrates a misunderstanding of the pricing requirements 

of the amended Solicitation by Asset.

Asset further suggests that if the agency believed the tax-exemption language in

Asset’s price proposal was inconsistent with the Solicitation, as amended, “‘[t]he way to 

deal with that problem is to seek clarification of those prices, not to punish the bidder by 

disqualifying it.’” (quoting Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1564 (Fed. Cir. 

1996)). The court notes that the Data General decision is the only decision that protestor 

cites for this argument.11 The facts in the protest currently under review, however, are

different than those in Data General. The protestor in Data General argued that “GSA 

[General Services Administration] could and should have disqualified IBM because of the 

discrepancies in its pricing tables.” Data Gen. Corp. v. Johnson, 78 F.3d at 1564. The 

Data General protestor was challenging the decision of the GSA’s Board of Contract 

Appeals denying its protest of GSA's award of a contract to International Business 

Machines Corporation (IBM). As noted by the Federal Circuit, “[t]he principal issue is 

whether the Board correctly held that Data General was not entitled to relief because it 

did not show that it had suffered prejudice as a result of any alleged improprieties in the 

procurement process.” Id. at 1558. The United States Court of Appeals for the Federal 

Circuit explained:

[i]n 1992, GSA solicited proposals to provide extensive automatic data 

processing equipment and related supplies and services for the United 

States Forest Service. The solicitation stated that the proposals would be 

separately evaluated with respect to technical and cost factors. The 

technical evaluation would be based upon four items, each of which was 

further subdivided. The solicitation stated that the agency's source selection 

authority “‘will determine the proposal which provides the best overall value 

to satisfy Government needs’” and that the technical assessment would be 

“significantly more important” than cost. 

Id. (internal refences omitted). The GSA indicated five offerors were in the competitive 

range, including IBM and Data General. See id. The GSA had discussions with the five 

offerors and allowed the offerors to submit best and final offers. See id. The Federal 

Circuit indicated, 

[u]pon review of the companies’ submissions, a GSA contracting officer 

noted several pricing discrepancies in IBM’s BAFO [best and final offer].

Specifically, the tables showing special pricing provisions (B tables) 

provided for beginning dates for two discounts that differed from the dates 

indicated in another table that showed expected contract life cycle cost (L 

table) and in the automated files IBM submitted with its BAFO. The 

11 Akima points out in a footnote that “Data General Corp. also was decided a year before 

the effective date of the FAR Part 15 Rewrite, which gave agencies greater discretion and 

flexibility over the conduct of discussions. 62 Fed. Reg. 51,224, 51,228 (Sep. 30, 1997).” 
27

beginning dates of these discounts had a substantial effect on the overall 

cost of the proposal.

Id. (internal references omitted). According to the Federal Circuit, “[t]he contracting officer 

by telephone requested IBM to give two yes-or-no answers about what the dates should 

be,” and IBM’s “answers resulted in a substantially lower overall contract cost than would 

have resulted under the dates stated in the B tables.” Id. at 1558-59. The Federal Circuit 

explained:

Applying the revised beginning-discount dates to IBM’s proposal, GSA then 

compared the BAFOs of the five companies with respect to both the cost 

and the technical areas. Data General’s BAFO was substantially higher than 

IBM’s. Data General’s technical score was slightly higher than IBM’s. 

Although the GSA source selection authority deemed the technical area 

“significantly more important than the Cost Area,” it concluded that “IBM 

provides the best overall value to satisfy the Government's needs.” GSA 

awarded the contract to IBM in June 1994. 

Id. (internal refences omitted). As the defendant in the above captioned protest observed, 

in Data General, “[t]he contracting officer elected to exercise the discretion afforded to 

contracting officers to clarify the matter, and the Federal Circuit rejected a challenge to 

the contracting officer’s election to proceed in that manner.”

Unlike the situation in Data General in which IBM’s price proposal was internally 

inconsistent, Asset’s price proposal was unchanged with regard to the tax-exemption,

even in the face of multiple amendments by the agency to clarify the tax-exemption issue

and even after the agency gave the offerors an opportunity to adjust their pricing if 

necessary. Asset’s final proposal did not conform with the requirements of the Solicitation,

as amended because Asset’s proposal before and after Amendment 19 and Amendment 

20 still was based on receiving a tax exemption, “where applicable,” and the Amendments 

to the Solicitation explicitly stated in capital letters “the Government CANNOT delegate 

its tax exempt status to contractors for the performance of government services.”

(capitalization in original). The language included by protestor, “where applicable,” cannot 

save Asset from a price proposal that remained unchanged even when a correction to the 

Solicitation via Amendment 19 and Amendment 20 to the Solicitation clarified that an 

offeror could not rely on a tax-exemption in its pricing proposal, and after the agency even

gave the offerors yet another opportunity to update their pricing information by

Amendment 21. As defendant notes: 

Perhaps if Asset had elected to revise its prices in response to Amendment 

No. 19 or 20, one might have had cause to wonder if the narrative statement 

was simply left in by mistake. But the manner in which Asset both left its 

pricing unchanged and left its narrative unchanged indicated-at least to any 

objective reader-that Asset had simply failed to do what the amended 

solicitation requested-namely, provide pricing that was not based on the 

expectation of receiving a tax exemption certificate.
28

(footnote omitted). 

Although the agency could have contacted Asset like the contracting officer 

contacted IBM in Data General, ICE did not do so. It is the obligation of the offeror to 

provide a complete proposal to the agency that allows the agency to evaluate the proposal 

as written. The government does not have an obligation to contact an offeror for further 

clarification after receipt of a proposal. See Structural Assocs., Inc./Comfort Sys. USA 

(Syracuse) Joint Venture v. United States, 89 Fed. Cl. 735, 744 (2009) (“Plaintiff’s failure 

to provide more detailed information is chargeable to it alone.”). As noted by a Judge of 

the United States Court of Federal Claims, “‘[a]n offeror has the responsibility to submit a 

well-written proposal with adequately detailed information that allows for a meaningful

review by the procuring agency.’” KSC Boss All., LLC v. United States, 142 Fed. Cl. 368, 

382 (2019) (quoting Structural Assocs., Inc./Comfort Sys. USA (Syracuse) Joint Venture 

v. United States, 89 Fed. Cl. at 744); see also Mission1st Grp., Inc. v. United States, 144 

Fed. Cl. 200, 213 (2019) (quoting Structural Assocs., Inc./Comfort Sys. USA (Syracuse) 

Joint Venture v. United States, 89 Fed. Cl. at 744) (“It is axiomatic that the burden is on 

the offeror ‘to submit a well-written proposal with adequately detailed information that

allows for a meaningful review by the procuring agency.’”); Mercom, Inc. v. United States, 

131 Fed. Cl. 32, 40 (2017). As explained by the Judge in Mission1st Group, 

the bottom line is that the agency had no way of knowing for sure why the 

cost narrative and cost proposal were inconsistent with one another. It was 

not irrational or unreasonable for the agency to decline to choose which of 

the two cost proposals (or perhaps some third alternative) reflected 

Mission1st's actual intent.

Mission1st Grp., Inc. v. United States, 144 Fed. Cl. at 213; see also Structural Assocs., 

Inc./Comfort Sys. USA (Syracuse) Joint Venture v. United States, 89 Fed. Cl. at 744. 

Therefore, after giving all the offerors, including Asset, multiple chances to change their

price proposals, the agency was not obligated to reach out to Asset again to give Asset 

another opportunity to clarify its price proposal, especially when the agency did not give 

the other offerors another opportunity. 

Asset also argues in its complaint that “Asset’s proposal contained no indication 

that its firm-fixed-price would change if its pricing assumption proved incorrect, and Asset 

did not reserve a right to receive, or even request, an adjustment to its pricing based on 

the stated pricing assumption about tax-exempt certificates.” By contrast, defendant 

argues that “[i]n our view, the suggestion that ICE should have-or even could haveignored a blatant inconsistency between what Asset said in its proposal and what the 

solicitation said is out of step with any reasonable view of sound procurement practices.” 

It would not have been proper for the agency to overlook Asset’s inclusion of the taxexemption in its price proposal. As noted by a Judge of the United States Court of Federal 

Claims, “[w]aiver of a mandatory requirement of the solicitation for the benefit of only one 

offeror invalidates a procurement decision.” L-3 Commc’ns EO Tech., Inc. v. United 

States, 83 Fed. Cl. at 653. Moreover, as the Judge in the United States Court of Federal 
29

Claims in Business Integra explained because protestor Business Integra’s “error was 

material, the government was under no obligation to waive the error or allow Business 

Integra to correct the error. As the government points out, requiring the agency to waive 

Business Integra’s error could result in disparate treatment among offerors and thus 

constitute an abuse of discretion.” Bus. Integra, Inc. v. United States, 116 Fed. Cl. at 337 

(citing ST Net, Inc. v. United States, 112 Fed. Cl. 99, 110 (2013) (internal reference 

omitted). [redacted], on behalf of Asset, repeatedly, and deliberately, conveyed to the 

agency protestor’s intention to leave its price proposal unchanged, which resulted in

protestor submitting a bid not compliant with the Solicitation as amended. 

Additionally, intervenor Akima argues that “Asset’s proposal contained a

contingency that took exception to the RFP’s requirement for a firm-fixed price, and was 

therefore noncompliant.” As indicated above, the Solicitation stated: “Any form of 

contingency pricing is unacceptable and your proposal will be removed from competition 

as unresponsive.” Intervenor Akima argues that “Asset’s proposal offered a pricing

contingency on the erroneous assumption that the Government would provide the 

successful offeror with a tax-exempt certificate.”12 Akima claims that Asset 

failed three times to revise its proposal to (1) remove any price 

contingencies and (2) remove any assumptions based on the Government’s 

payment of Arizona’s sales tax. Asset cannot now argue that the Agency’s 

determination that it was ineligible for award was unreasonable. 

Accordingly, this Court should dismiss Plaintiff’s Complaint for lack of 

jurisdiction because Asset does not have standing.

Asset responds that “[a] description of a pricing assumption is not an exception to the 

Solicitation’s requirement for a firm fixed price,” and “Asset does not state that the prices 

it proposed in the separate Pricing section of its price proposal are in any way conditional 

or contingent upon the receipt of a tax-exempt certificate.” (emphasis in original). The 

court has determined that Asset submitted a bid to the agency that did not acknowledge 

the agency’s repeated change regarding the unavailability of any tax exemption benefits. 

Asset retained its language in its price proposal that “[s]ales taxes were not charged due 

to the government's expressed intent to provide Team Asset with a tax-exempt certificate, 

where applicable,” even after the agency issued Amendment 19, Amendment 20, and 

Amendment 21, to the Solicitation which required a firm fixed price proposal, and provided

no reliance on a possible tax-exemption certificates. The Solicitation, as amended, was 

clear: “All proposed pricing must be accordance with [FAR] 52.222-43. Any form of 

contingency pricing is unacceptable and your proposal will be removed from competition 

as unresponsive.” (brackets added). Asset’s price proposal, therefore, was unresponsive.

In addition to contesting the tax-exemption issue, protestor argues that

12 In its reply brief, defendant states “[o]ur motion does not ask the Court to rule that ICE 

was correct to decide that Asset’s proposal included a pricing contingency,” and 

continues, “our motion argues that, even if Asset’s price was firm and not contingent, that 

price was simply not what was requested in the solicitation.”
30

[b]oth Motions [to dismiss brought by defendant and intervenor], although 

brought as jurisdictional challenges to Asset’s standing, are improper 

jurisdictional/standing motions, as they fail to accept the Complaint’s 

allegations of agency error as true for purposes of the motions, and are not 

directed to the issue pertinent to standing at this point in the protest, namely, 

allegational prejudice, which turns on the prejudicial impact of the agency’s 

error as alleged in the Complaint.

(emphasis in original). Protestor states, “[a]s this Court specifically held in Safeguard 

Base Operations, LLC, demonstrating prejudice for standing purposes at this point in a 

protest requires only a showing of ‘allegational prejudice,’ not prejudice on the merits. 144 

Fed. Cl. at 354.” (emphasis in original). Protestor also cites to the language of the 

undersigned’s bid protest decision in Caddell Construction Co., Inc. v. United States, 111 

Fed. Cl. 49 (2013), that “[i]n order to establish what one Judge on this court has called 

‘allegational prejudice’ for the purposes of standing, the bidder must show that there was 

a ‘substantial chance’ it would have received the contract award, but for the alleged 

procurement error,” id. at 72 and “‘[a]llegational prejudice’ is to be judged before the court 

analyzes the lawfulness of the agency's allegedly improper action and ‘turns entirely on 

the impact that the alleged procurement errors had on a plaintiff's prospects for award, 

taking the allegations as true.’” Id. at 111 (citations omitted). Intervenor responds that “the 

cases cited by Plaintiff are inapposite and should not control the outcome of this Motion.” 

Asset overlooks the facts of the Caddell protest, as the undersigned in Caddell noted,

“[i]n the above captioned protest, defendant and intervenor do not challenge plaintiff's 

standing.” Id. Moreover, in the protest before the court, this court is not considering the 

“lawfulness of the agency’s allegedly improper action,” like the undersigned addressed in 

Caddell. Were the court to have found protestor’s bid to be compliant with the Solicitation, 

the court would have taken the allegations that the technical evaluations, past 

performance evaluations, and price evaluations were arbitrary and capricious as with 

merit to determine if protestor could demonstrate allegational prejudice. Because the 

court did not conclude that protestor’s proposal in the case currently before this court was 

in compliance with the terms of the Solicitation, the court did not reach the issue of 

allegational prejudice. 

Regarding the Safeguard decision, the undersigned’s bid protest decision in 

Safeguard did not involve the issue of allegational prejudice. See generally Safeguard 

Base Operations, LLC v. United States, 144 Fed. Cl. 304 (2019), appeal filed (Fed. Cir. 

Aug. 9, 2019). Instead, the undersigned examined the issue of whether or not Safeguard’s 

joint venture agreement was in violation of the Small Business Administration’s (SBA’s)

8(a) joint venture requirements. See id. at 354. In order to determine standing, the 

undersigned carefully examined the record, and determined:

Based on the record before the court, including the inconsistencies between 

the three Safeguard 8(a) joint venture agreements and that the court does 

not have all of the records submitted to the SBA in connection with 

Safeguard’s request to be approved as an 8(a) joint venture, the court is 

unable to evaluate B & O’s [intervenor’s] argument that the SBA erroneously 
31

approved Safeguard's 8(a) joint venture agreement. As of the date on which 

Safeguard submitted its proposal in response to the Solicitation, however, 

Safeguard appears to have been approved by the SBA as an eligible 8(a) 

joint venture and appears to have been eligible to be selected as the 

apparent successful offeror under the Solicitation, if Safeguard had not 

been properly disqualified as a result of the Agency’s alleged errors. 

Because the SBA approved Safeguard as an eligible 8(a) joint venture and 

because there is not sufficient evidence in the record to find that the SBA 

erred when approving Safeguard's 8(a) joint venture agreement, the court 

denies defendant-intervenor's motion to dismiss for lack of standing.

Id. at 363. Just as in the decision in Safeguard, the court does not reach the issue of 

allegational prejudice in this protest. In sum, protestor Asset does not have standing to 

challenge the agency’s award to intervenor Akima.

Protestor also alleges that because the agency included Asset in its trade-off 

analysis, the agency “waived its unreasonable finding that Asset’s proposal was ineligible 

for award.” (emphasis in original). Asset argues that because “ICE included Asset’s 

proposal in the best value tradeoff establishes ICE waived the finding of ineligibility and 

retained Asset’s proposal among those eligible for award; therefore, Asset has standing 

to challenge the substance of the best value tradeoff and award determination.” Protestor 

cites a single case for the statement of law that “[w]hen the agency's best value trade-off 

includes the protestor, even when it was not notionally the second-rated offeror, the 

protestor has established that it would have had a substantial chance of receiving the 

award but for the alleged error.” Advanced Mgmt. Strategies Grp., Inc./Reefpoint Grp., 

LLC v. United States, 139 Fed. Cl. 404, 411 (2018) (footnote omitted). The court first 

notes that this statement does not demonstrate that an agency waived a finding that a 

proposal was ineligible for award by including a proposal in a trade-off analysis. The 

Judge in Advanced Management Strategies only indicated “the law will not assume it a 

fait accompli that the next highest rated proposal would receive the award. Plaintiff has 

established that there is a substantial chance that it might be awarded the contract if ERPi 

[the awardee] is not selected and it thus has standing to maintain the protest.” Id. Indeed 

in Advanced Management Strategies, the protestor was determined to have a proposal 

that was compliant with the solicitation at issue. That is not the case in the above 

captioned bid protest. The December 19, 2019 Source Selection Award Decision 

Memorandum stated:

APSS is ineligible to receive award due to defective pricing. APSS offered 

contingency pricing on pg. 57 of their Volume IV proposal. APSS stated 

“sales taxes were not charged due to the Government’s expressed intent to 

provide Team Asset with a tax-exempt certificate, where applicable.” The 

Government provided two amendments, 0019 and 0020, informing all 

Offerors that the Government will not provide the tax-exempt number and 

APSS failed to make a correction to their price proposal. Nevertheless, the 

Government performed a tradeoff analysis in accordance with the 

solicitation.
32

In addition, the December 19, 2019 Source Selection Award Decision Memorandum 

indicated regarding the price analysis, “the APSS’ pricing was determined to be 

noncompliant with the solicitation requirements. APSS offered contingency pricing on the 

belief that the Government would provide their tax-exempt certification number.”

The court does not agree with protestor’s contention that because Asset was 

included in the best value trade-off analysis, the agency waived any claim that Asset’s 

proposal was ineligible for award. Regardless of the allegation, this court still would have 

the authority, and obligation, to determine if this court has jurisdiction to proceed and 

whether a protestor has standing to proceed after a protestor submitted a nonconforming 

bid. The United States Supreme Court has held that “‘subject-matter jurisdiction, because 

it involves a court’s power to hear a case, can never be forfeited or waived.’” Arbaugh v. 

Y & H Corp., 546 U.S. at 514 (quoting United States v. Cotton, 535 U.S. at 630). As the 

United States Court of Appeals for the Federal Circuit has explained, “any party may 

challenge, or the court may raise sua sponte, subject matter jurisdiction at any time.” 

Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d at 1346 (citing Arbaugh v. Y & H 

Corp., 546 U.S. at 506, Folden v. United States, 379 F.3d at 1354, and Fanning, Phillips 

& Molnar v. West, 160 F.3d at 720). As determined by this court, protestor does not have 

standing to bring this protest, and, therefore, this court does not have jurisdiction to hear 

this protest. 

Finally, the court notes that protestor argues in its complaint the GAO determined 

“that the SSA’s conclusion that Asset’s proposal contained a price contingency, and was 

therefore ineligible for award, was unreasonable.” The GAO decision discussed the 

positions urged by the parties and concluded: 

Asset contends that the agency erred in concluding that Asset’s proposal 

was ineligible for award because the firm proposed “contingency pricing.” 

The agency states that the solicitation expressly prohibited contingency 

pricing of any form. Further, the agency contends that it reasonably found 

Asset’s proposal ineligible for award because Asset's price proposal 

included language that rendered its pricing contingent on an assumption 

that was no longer valid. Moreover, ICE asserts that Asset was not 

competitively prejudiced by any potential error related to the pricing issue 

because the SSA, nonetheless performed a best-value tradeoff analysis 

between Asset and Akima. 

In support of its conclusion that Asset’s proposal contained contingent 

pricing, the agency explains that Asset’s failure to remove language in its 

price proposal-that ICE informed offerors in two solicitation amendments 

was incorrect-rendered its price proposal contingent. Specifically, prior to 

the initial solicitation closing date, the agency originally advised offerors that 

the agency would issue a state sales tax exemption certificate to the 

successful offeror. During the course of the reevaluation performed in 

response to the earlier protests, ICE conducted discussions with offerors 
33

and requested the submission of FPRs by May 30, 2019. Subsequent to the 

receipt of FPRs, the agency informed offerors, through the issuance of 

solicitation amendments 19 and 20, that ICE would not, in fact, issue the 

tax exemption certificate. Both amendments 19 and 20 permitted offerors 

to provide revisions to their price proposal submission based on the 

changes to the solicitation. The FPR, submitted on May 30, 2019 by Asset, 

explained that its fixed rates for each CLIN included other direct costs 

(ODC). Asset’s FPR also stated that it did not apply sales taxes to the ODCs 

because it relied on “the government's expressed intent to provide Team 

Asset with a tax-exempt certificate, where applicable.” In response to 

amendment 19 and 20, Asset stated that its proposal did not require further 

revision. 

With regards to contingency pricing, the RFP, as amended, simply stated: 

“All proposed pricing must be in accordance with [FAR] 52.222–43. Any 

form of contingency pricing is unacceptable and your proposal will be 

removed from the competition as unresponsive.” Relevant here, the SSA 

concluded that Asset’s proposal was ineligible for award because the firm 

had failed to revise the statement in its FPR regarding the inclusion of state 

sales tax in its ODCs. The SSA found that the statement in Asset's price 

proposal was in violation of the solicitation's express prohibition about 

including of any form of contingency pricing.

In this regard, the agency maintains that Asset’s failure to remove a pricing 

assumption in its proposal-an assumption that was no longer valid as a 

result of amendments to the solicitation-created a pricing contingency in 

Asset’s proposal. In support of this argument, the agency relies on our 

decision in Solers, Inc., B–404032.3, B–404302.4, Apr. 6, 2011, 2011 CPD 

¶83, where our Office found that the awardee made multiple statements in 

its proposal which amounted to the awardee conditioning its offered price 

on a greater use of government facilities than contemplated or authorized 

by the solicitation, such that the offered price was conditional, not firm. Id.

at 6-7. According to the agency, Asset’s proposal took exception to the 

solicitation’s requirement to propose a fixed price because the solicitation, 

as amended, required offerors to include state taxes. By not including state 

taxes, the agency argues that Asset’s price proposal took exception to the 

requirement to propose a fixed price because Asset conditioned its price on 

future negotiations. 

Generally, the requirement to propose fixed prices is a material term or 

condition of a solicitation requiring such pricing. Marine Pollution Control 

Corp., B–270172, Feb. 13, 1996, 96–1 CPD ¶73 at 2–3. Where a solicitation 

requests proposals on a fixed-price basis, a price offer that is conditional 

and not firm cannot be considered for award. Id.; SunEdison, LLC, B–

298583, B–298583.2, Oct. 30, 2006, 2006 CPD ¶168 at 5.
34

On this record, we do not find reasonable the agency’s conclusion that the 

above-quoted statement in Asset’s price proposal created a contingency, or 

took exception to the solicitation’s requirements to propose a fixed price. 

While we agree that Asset’s price proposal may have relied on an incorrect 

pricing assumption, on this record, we do not find that Asset’s price proposal 

conditioned its fixed price on future negotiations. Further, to the extent that 

the solicitation expressly required the inclusion of state sales taxes, Asset’s 

proposal might reasonably be viewed as incomplete, however, nothing in 

the proposal supports the agency’s conclusion that Asset’s pricing was 

contingent on future negotiations. Nonetheless, we conclude that the 

protester was not prejudiced by the agency’s error.

Asset Prot. & Sec. Servs., L.P., 2020 WL 1847740, at *3-5 (internal references and 

footnote omitted).

The court first notes that while Judges of the United States Court of Federal 

Claims, including the undersigned, have high respect for the expertise of the GAO, and 

often consider the reasoning included in GAO decisions when reaching their own 

opinions, GAO decisions are not binding on the United States Court of Federal Claims. 

See Cleveland Assets, LLC v. United States, 132 Fed. Cl. 264, 280 n.15 (2017); see also

Centech Grp., Inc. v. United States, 554 F.3d at 1038. Additionally, as defendant notes, 

“[e]valuating the tax-exemption issue as one of contingency pricing, which admittedly is 

how it was framed before GAO, overlooks the more basic problem: Asset’s proposal failed 

to conform to a material term of the of the solicitation.” Indeed, a focus of the GAO’s 

conclusion was that Asset’s pricing was not contingent, even as the GAO indicated that 

Asset’s price proposal may be incomplete. As noted multiple times during this Opinion, 

this court has determined that Asset’s price proposal itself was non-responsive to the 

requirements of the Solicitation, as explicitly amended more than once, and, therefore, 

the Asset’s price proposal was non-complaint. The GAO failed to perform this first step of 

the analysis, and did not address if Asset’s price proposal was responsive to the 

requirements of the Solicitation. The December 19, 2019 Source Selection Award 

Decision Memorandum stated:

APSS’ pricing was determined to be noncompliant with the solicitation 

requirements. APSS offered contingency pricing on the belief that the 

Government would provide their tax-exempt certification number. The 

Government provided two amendments, 0019 and 0020, informing all 

Offerors that the Government will not provide the tax-exempt number and 

APSS failed to make a correction to their final pricing after amendments 

0019 and 0020 were issued.

The agency, on multiple occasions, alerted the offerors to the change in the agency’s 

earlier statement of the availability of a tax-exemption certificate, and tried repeatedly to 

ensure that the offerors’ proposals did not reflect a reliance on the possibility of an 

available tax-exemption in their proposals. The GAO, in its focus on whether or not 

Asset’s pricing was contingent on future negotiations, failed to fully consider if the price 
35

proposal as submitted by Asset was sufficient on its face. As discussed above, the pricing 

requirements of the Solicitation made clear, “[a]ny form of contingency pricing is 

unacceptable and your proposal will be removed from competition as unresponsive.” By 

keeping the language “sales taxes were not charged due to the Government’s expressed 

intent to provide Team Asset with a tax-exempt certificate, where applicable,” Asset 

conveyed to the agency that Asset’s firm fixed price in its pricing proposal was subject to 

the condition that Asset would still be eligible to receive a tax exemption.

Additionally, as indicated above, regarding future negotiations, the GAO 

concluded:

On this record, we do not find reasonable the agency’s conclusion that the 

above-quoted statement in Asset’s price proposal created a contingency, or 

took exception to the solicitation’s requirements to propose a fixed price. 

While we agree that Asset’s price proposal may have relied on an incorrect 

pricing assumption, on this record, we do not find that Asset’s price proposal 

conditioned its fixed price on future negotiations. Further, to the extent that 

the solicitation expressly required the inclusion of state sales taxes, Asset’s 

proposal might reasonably be viewed as incomplete, however, nothing in 

the proposal supports the agency’s conclusion that Asset’s pricing was 

contingent on future negotiations.

It is unclear why the GAO was focused on the issue of future negotiations, given that the 

agency’s rejection of Asset’s bid, as explained in the December 19, 2019 Source 

Selection Award Decision Memorandum, did not mention future negotiations, nor was the 

agency obligated to engage in future negotiations. See Structural Assocs., Inc./Comfort 

Sys. USA (Syracuse) Joint Venture v. United States, 89 Fed. Cl. at 744. The December 

19, 2019 Source Selection Award Decision Memorandum, instead focused on the fact 

that Asset continued to include as a part of its price proposal for the fixed price contract 

an assumption that it could benefit from a tax-exemption certificate, and continued to do 

so although the agency had made clear that no such exemption would ever be available. 

In the court’s view, the GAO was distracted by this future negotiations issue, and missed 

the larger issue of whether or not Asset’s proposal, as submitted to the agency, was 

compliant with the stated requirements of the Solicitation, which was did not.

CONCLUSION

As discussed above, protestor Asset submitted a non-responsive bid, and, 

therefore, lacks standing to bring the above captioned protest. The defendant’s and 

intervenor’s motions to dismiss are GRANTED. Protestor’s protest is DISMISSED. The 

Clerk of the Court shall enter JUDGMENT consistent with this Opinion.

IT IS SO ORDERED.

 

 s/Marian Blank Horn 

 MARIAN BLANK HORN

 Judge