In the United States Court of Federal Claims

No. 13-256 C

(E-Filed Under Seal: July 23, 2013)1

(E-Filed: July 29, 2013)

)

Bid Protest; Cross-Motions for 

Judgment on the Administrative 

Record; Dispute Regarding Technical 

Evaluation of Mannequins to Be Used 

to Train Army Combat Medics

LAERDAL MEDICAL CORP., )

)

 Plaintiff, )

)

 v. )

)

THE UNITED STATES, )

)

 Defendant, )

)

& )

)

CAE HEALTHCARE, INC., )

)

 Defendant-Intervenor. )

)

Cyrus E. Phillips, IV, Arlington, VA, for plaintiff.

Michael D. Snyder, Trial Attorney, with whom were Stuart F. Delery, Acting Assistant 

Attorney General, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant 

Director, Commercial Litigation Branch, Civil Division, United Stated Department of 

Justice, Washington, DC, for defendant. Debra J. Talley, Associate Command Counsel, 

Protest Division, Army Materiel Command, Redstone Arsenal, AL, of counsel.

Joseph P. Hornyak, McLean, VA, for defendant-intervenor. 

OPINION

HEWITT, Chief Judge

1

This Opinion was filed under seal on July 23, 2013, and the parties were offered an 

opportunity to propose redactions. No party having proposed a redaction, see Pl.’s Mot. to 

Release Unredacted and Public Opinion, Docket Number (Dkt. No.) 47, at 2 (stating that “[t]he 

Parties have conferred and neither the Plaintiff, nor the Defendant, nor the Intervenor will 

request that designated material be redacted”), the Opinion filed on July 23, 2013 is now 

republished. 

 
This is a post-award bid protest brought by Laerdal Medical Corporation (Laerdal 

or plaintiff), the awardee of Contract Number W900KK-12-D-0050 (the contract or 

Laerdal’s contract) for the delivery of mannequins used to train combat medics. PostAward Procurement Protest Compl. (Compl.), Docket Number (Dkt. No.) 1, ¶¶ 1-2. In 

this suit, Laerdal challenges a decision by the United States, acting through the United 

States Department of the Army’s Program Executive Office, Simulation Training and 

Instrumentation Acquisition Center (PEO STRI, the Army, the government or defendant)

to take corrective action in the form of terminating Laerdal’s contract in response to a bid 

protest filed with the United States Government Accountability Office (GAO). Id. 

Plaintiff and defendant have filed cross-motions for judgment on the 

administrative record. Before the court are plaintiff’s and defendant’s cross-motions for 

judgment on the administrative record and the associated briefing: Plaintiff’s Motion for 

Judgment on the Administrative Record (plaintiff’s Motion), Dkt. No. 31, filed May 7, 

2013 with plaintiff’s Statement of Facts, Dkt. No. 31-1, and Plaintiff’s Brief in Support of 

Motion for Judgment on the Administrative Record (Pl.’s Mem.), Dkt. No. 31-2; 

Defendant’s Opposition to Plaintiff’s Motion for Judgment upon the Administrative 

Record and Cross-Motion for Judgment upon the Administrative Record (defendant’s 

Motion or Def.’s Mot.), Dkt. No. 40, filed May 31, 2013; Plaintiff’s Opposition to 

Defendant’s Cross-Motion for Judgment on the Administrative Record, Dkt. No. 42, filed 

June 12, 2013 with plaintiff’s Counter-Statement of Facts, Dkt. No. 42-1, and Plaintiff’s 

Brief in Support of Plaintiff’s Opposition to Defendant[’s] Cross-Motion for Judgment on 

the Administrative Record (Pl.’s Resp.), Dkt. No. 42-2; and Defendant’s Reply in 

Support of Its Cross-Motion for Judgment upon the [Administrative] Record (Def.’s 

Reply), Dkt. No. 43, filed June 28, 2013. Defendant-intervenor CAE Healthcare, Inc. 

(CAE or defendant-intervenor) has not filed briefing.

I. Background

A. The Solicitation 

On April 23, 2012 the government issued Solicitation Number W900KK-12-R0013 (the solicitation2

), Admin. R. (AR) 918 (request for proposals (RFP)), for delivery 

of high-fidelity tetherless mannequins to be used to train soldiers “to treat wounds in the 

combat environment,” AR 1025 (statement of work). The solicitation provided for the 

delivery of thirty-eight mannequins during the base year of contract performance and 

delivery of up to a total of 130 additional mannequins during four one-year option 

periods. AR 629 (Army GAO mem.) (providing contracting officer’s statement of facts); 

2

The solicitation consisted primarily of a request for proposals (RFP), see Admin. R. 

(AR) 918-1022 (RFP), a statement of work, see AR 1023-41 (statement of work), and a 

document providing submission instructions and describing the evaluation criteria to be applied, 

see AR 1042-57 (evaluation criteria).

2

 
AR 1981 (CAE 2d debriefing); see also AR 920-65 (RFP) (listing individually the items 

to be delivered). The mannequins were to be purchased as commercial items pursuant to 

Federal Acquisition Regulation part 12. See AR 918 (RFP) (titled, in part, “Order for 

Commercial Items”); cf. 48 C.F.R. (FAR) pt. 12 (2012) (governing acquisition of 

commercial items). The solicitation also provided for the delivery of certain associated 

services and equipment. See AR 1026-30 (statement of work) (stating that the awardee 

would be required to “provide all commercial products and services necessary to 

complete the tasks in this [statement of work]”); see, e.g., AR 920 (RFP) (requiring 

delivery of new equipment training).

The solicitation listed forty-nine numbered requirements, which it stated each 

mannequin “shall include.” AR 1037-40 (statement of work); see also id. at 1026 (stating 

that the awardee “shall deliver [mannequins] that meet the requirements as defined in this 

[statement of work]--including the [forty-nine numbered] Requirements”). Seven of 

these requirements were identified as “critical requirements.”3

 AR 1055-56 (evaluation 

criteria). Of particular relevance to this case: The mannequins were required to permit

remote, tetherless operation and to “allow radio operation from a distance of 300 feet that 

is not [in the] direct line of sight.” AR 1037-38 (statement of work). They were to 

include “anatomically correct pulse sites,” id. at 1039, and “life-like ears with the 

capability to ooze simulated fluids appropriate to related injuries,” id. at 1038. 

Additionally, the mannequins were to be able to “simulate bi-lateral tension 

pneumothorax” and “human responses to both correctly and incorrectly performed needle 

decompression procedures.”4

 Id. at 1039. The mannequins were required to be equipped 

3

The “critical requirements” were: facial features, pulses, airway management, a trauma 

feature known as surgical cricothyroidotomy, needle capabilities, tourniquet procedures and 

antecubital IV placement. AR 1055-56 (evaluation criteria). The critical requirements were 

identified using the numbers provided in the list of forty-nine requirements contained in the 

statement of work and a short description. See id. (identifying, for example, “A.1.27 Trauma 

Features: Surgical Cricothyroidotomy” as a critical requirement). However, the court notes that 

some of the numbers by which the critical requirements were identified appear to be off by one, 

based on the requirement descriptions. Compare id. and AR 1061-62 (demonstration plan) 

(describing how the critical requirements were to be assessed, for example, stating that for 

A.1.27 “[e]valuators will perform a cricothyroidotomy”) with AR 1037-40 (statement of work) 

(listing forty-nine requirements by number, for example, listing as A.1.27 that the mannequins 

“[s]hall provide the capability to perform bilateral chest tube training” but listing as A.1.28 that 

the mannequins “[s]hall be capable of being used to demonstrate a surgical Cricothyroidotomy”). 

4

Plaintiff Laerdal Medical Corporation (Laerdal or plaintiff) states that “[t]ension 

pneumothorax is an abnormal collection of air or gas in the chest cavity that separates the lung 

from the chest wall and interferes with normal breathing.” Statement of Facts, Dkt. No. 31-1, at 

10. The court understands needle decompression of tension pneumothorax to be the insertion of 

a needle into the chest cavity to allow collected air or gas to escape. See id. at 28 (stating that a 

mannequin simulated the physiological result of needle decompression by emitting a “hiss of air” 

when a needle was inserted into its chest).

3

 
with “sternal [intraosseous] acceptance sites . . . with the ability to provide fluid 

resuscitative treatment.”5

 Id. The mannequins also were to “be capable of being used to 

demonstrate the proper procedure for insertion of an IV in brachial veins.” Id. at 1040.

Award was to be made on a best value basis, based on three factors: Technical, 

Performance Risk6 and Price. AR 1053 (evaluation criteria); AR 1011 (RFP). The 

Technical factor was to be “significantly more important than the Performance Risk”

factor, and the Performance Risk factor was to be “significantly more important than” the 

Price factor. AR 1053 (evaluation criteria); AR 1011 (RFP). Award was to be made

according to “an integrated tradeoff assessment among the evaluation factors and by the 

exercise of sound business judgment.” AR 1053 (evaluation criteria).

The solicitation stated that, with respect to the Technical factor, the government 

would assign each proposal one of the following five adjectival ratings (Technical 

ratings): 

Color Rating Description

Blue Outstanding Proposal meets requirements and indicates an exceptional 

approach and understanding of the requirements. Strengths far 

outweigh any weaknesses. Risk of unsuccessful performance 

is very low. 

Purple Good Proposal meets requirements and indicates a thorough 

approach and understanding of the requirements. Proposal 

contains strengths which outweigh any weaknesses. Risk of 

unsuccessful performance is low. 

Green Acceptable Proposal meets requirements and indicates an adequate

approach and understanding of the requirements. Strengths

and weaknesses are offsetting or will have little or no impact

on contract performance. Risk of unsuccessful performance

is no worse than moderate.

5

The court understands sternal intraosseous infusion to be the infusion of fluids into the 

sternum when infusion into a vein or bone in a limb is not possible--for instance, due to 

battlefield injury. Oral Argument of July 9, 2013 (Oral Argument), Argument of Cyrus E. 

Phillips, IV (Mr. Phillips) at 10:05:29-06:19 (describing sternal intraosseous infusion). (The oral 

argument held on July 9, 2013 was recorded by the court’s Electronic Digital Recording system 

(EDR). The times noted in citations to the oral argument refer to the EDR.).

6

Each offeror’s performance risk was to be evaluated using its past performance 

submission. AR 1047 (evaluation criteria).

4

 
Yellow Marginal Proposal does not clearly meet requirements and has not 

demonstrated an adequate approach and understanding of the 

requirements. The proposal has one or more weaknesses which 

are not offset by strengths. Risk of unsuccessful performance 

is high. 

Red Unacceptable Proposal does not meet requirements and contains one or more 

deficiencies. Proposal is unawardable.

Id. at 1055 (emphasis omitted). To be considered for award, offerors had to achieve a 

Technical rating of at least “Acceptable.” Id. at 1053. This protest concerns the 

government’s technical evaluation only.

7

 See infra Part III.B-C.

The Technical ratings contemplated that the government’s evaluators would weigh 

each offeror’s strengths and weaknesses and would reject any proposal with a deficiency. 

See id. at 1055. Accordingly, the following definitions were implemented to facilitate 

evaluation under the Technical ratings: 

Significant Strength An aspect of the Offeror’s proposal that 

appreciably enhances the merit of the 

proposal or appreciably increases the 

probability of successful contract 

performance.

Strength An aspect of the Offeror’s proposal that has 

merit or exceeds specified performance or 

capability requirements in a way that will 

be advantageous to the Government during 

contract performance. 

Weakness A flaw in the proposal that increases the 

risk of unsuccessful contract performance. 

Significant Weakness A flaw in the Offeror’s proposal that 

appreciably increases the risk of 

unsuccessful contract performance. 

Deficiency A material failure of a proposal to meet a 

Government requirement or a combination 

of significant weaknesses in a proposal that 

increases the risk of unsuccessful contract 

performance to an unacceptable level. 

7

Because the parties do not contend that the Performance Risk factor or the Price factor 

were evaluated incorrectly, the court does not describe the evaluation of these factors. 

5

 
AR 1501 (1st proposal evaluation report) (emphasis omitted); cf. FAR 15.001 (providing 

nearly identical definitions of the terms “deficiency,” “weakness” and “significant 

weakness” for use in contracting by negotiation).

The government’s evaluation was to “encompass two distinct events: a system 

[capability] demonstration . . . , and a written proposal evaluation.” See AR 1011 (RFP); 

see also AR 1475 (technical evaluation I) (stating that the technical evaluation “consisted 

of product demonstrations with hands-on evaluations and a thorough review of each 

Offeror[’s] written proposal”). In each offeror’s system capability demonstration, the 

offeror would be given an opportunity to demonstrate “the extent to which the proposed 

product meets or exceeds” the seven requirements that the solicitation described as 

“critical requirements.” AR 1055 (evaluation criteria). The government would then 

“perform procedures on each system in order to assess each product.” Id. 

As to the written proposals, the solicitation provided that the government would 

“evaluate the written proposals to determine the extent to which the proposed product 

meets or exceeds all requirements stated in the [statement of work].” AR 1022 (RFP). 

Offerors were also required to submit a “transmittal letter” with their written proposals, in 

which they were to “state that the Offeror is able to meet all requirements.” AR 1045 

(evaluation criteria). Offerors “[were] cautioned that while the Government will not 

evaluate every . . . requirement . . . for the purposes of the source selection evaluation, the 

awardee Contractor will be required to comply with the . . . requirements during delivery 

order performance.” Id. at 1054; see also id. at 1044 (stating that “[t]he successful 

Offeror will be required to comply with all aspects of the requirements documents 

[including the statement of work]”). And offerors were also cautioned that the 

government reserved discretion to find that a mannequin did not meet the requirements--

making it ineligible for award--based solely on its evaluation of the offeror’s written 

proposal:

The Government may determine, at its discretion, that an Offeror’s 

proposal is non-compliant, and therefore, ineligible for award if the 

proposal indicates that: it cannot or will not meet any of the . . . 

requirements; provides an approach that clearly does not meet any of 

the . . . requirements; or, includes data which prompts the Government to 

question the Offeror’s compliance with any of the . . . requirements.

Id. at 1054; see also infra Part III.C (discussing the government’s discretion in this 

regard).

B. Evaluation and the Award to Laerdal

6
The government evaluated mannequins provided by plaintiff, by CAE and by two 

additional offerors.8

 See AR 1475 (technical evaluation I). The government assigned a 

Technical rating of “Unacceptable” to the mannequins submitted by the two additional 

offerors, which rendered the additional offerors ineligible for award. See AR 1531-32

(1st source selection decision doc.).

With respect to CAE’s mannequin, the government’s evaluators identified three

weaknesses, two significant weaknesses and no deficiencies, certain of which are 

particularly relevant to this protest.

9

 See AR 1477-79 (technical evaluation I).

Specifically, during the system capability demonstration, CAE’s mannequin did not 

properly simulate a reaction when needle decompression of tension pneumothorax was 

correctly performed on its right side (a weakness). Id. at 1477-78. The evaluators also 

experienced difficulty palpating the mannequin’s carotid pulse and determined that two 

of the mannequin’s other pulse sites were “anatomically incorrect” (collectively, a 

significant weakness). Id. at 1478. And the evaluators noted that efforts to employ a 

particular airway adjunct10 were unsuccessful (a significant weakness). Id. at 1478-79. 

The government rated CAE’s mannequin “Marginal,” which rendered CAE ineligible for 

award. AR 1529-30 (1st source selection decision doc.). 

With respect to Laerdal’s mannequin, the government’s evaluators identified three 

weaknesses, no significant weaknesses and no deficiencies. Id. at 1480-81 (technical

evaluation I). Among the weaknesses was that, during Laerdal’s system capability 

demonstration, Laerdal’s mannequin did not properly simulate a reaction to a correctly 

performed needle decompression of tension pneumothorax on its left side. Id. at 1481. 

Nevertheless, the contracting officer determined that the weaknesses of Laerdal’s 

mannequin “[were] offset by the Strengths.” AR 1536 (1st source selection decision 

doc.). The government rated Laerdal’s mannequin “Acceptable,” AR 1475 (technical 

evaluation I), making Laerdal the only offeror eligible for award, AR 1534 (1st source 

selection decision doc.). The contracting officer determined that Laerdal’s mannequin 

“[was] the best value to the government” and awarded the contract to Laerdal. Id. at 

1535-36.

8

The evaluation and source selection documents refer to the offerors as “Offeror A,” 

“Offeror B,” “Offeror C” and “Offeror D.” See, e.g., AR 1475 (technical evaluation I). “Offeror 

A” is CAE Healthcare, Inc. (CAE). AR 1564 (CAE 1st debriefing); AR 1994 (CAE 2d 

debriefing). “Offeror B” is Laerdal. AR 2058 (Laerdal debriefing).

9

The parties do not challenge the strengths found in each proposal.

10An airway adjunct is a device that allows medical personnel to assist a patient who is 

unable to breathe normally. See, e.g., AR 1599-1602 (describing airway adjuncts produced by 

one manufacturer).

7

 
C. The First GAO Protests and Defendant’s Corrective Action

On September 14, 2012 CAE filed a bid protest with GAO, see generally AR 723-

46 (CAE GAO protest I), focusing primarily on the government’s technical evaluation of 

CAE’s and Laerdal’s mannequins, see id. at 732-43 (discussing the government’s 

technical evaluation). On September 17, 2012 the government issued a stop work order 

to Laerdal. See AR 1594-95 (stop work order). On October 22, 2012, after receiving the 

agency record and other discovery documents, CAE filed a supplemental protest, again 

focusing on the technical evaluation of CAE’s and Laerdal’s mannequins. See generally

AR 1773-80 (CAE GAO protest I supp.). The government informed GAO that it would 

take corrective action by reevaluating the mannequins, and on November 8, 2012 GAO 

dismissed CAE’s protest and supplemental protest as academic. AR 1901 (GAO decision 

I).

The government reevaluated the CAE and Laerdal written proposals, and on 

December 4, 2012 the government conducted a second set of system capability 

demonstrations. AR 2363 (2d source selection decision doc.). 

As to CAE’s mannequin, the evaluators identified seven weaknesses, one 

significant weakness and no deficiencies. See AR 1934-38 (technical evaluation II). 

Most of the new weaknesses were identified based on CAE’s written proposal. See id. at 

1934-37 (describing the new weaknesses). However, of significance to this protest,

during the second capability demonstration one weakness and one significant weakness 

that had occurred during the first capability demonstration did not recur, and two

additional weaknesses were observed for the first time. See id.; see also infra Part III.B

(discussing plaintiff’s contentions with respect to repeatability of observations). 

Specifically, during the second demonstration the evaluators were able to perform needle 

decompression of tension pneumothorax on the right side, whereas the failure to perform 

such decompression had been listed as a weakness after the first demonstration. Compare

AR 1477-78 (technical evaluation I) (listing failure to perform such decompression as a 

weakness during the first demonstration) with AR 1934-37 (technical evaluation II) (not 

listing failure to perform such decompression as a weakness). During the second 

demonstration, the evaluators were also able to employ an airway adjunct, whereas the 

inability of evaluators to employ an airway adjunct had been listed as a significant 

weakness after the first demonstration. Compare AR 1478-79 (technical evaluation I) 

(listing the inability of evaluators to employ an airway adjunct as a significant weakness)

with AR 1937-38 (technical evaluation II) (not listing the inability of evaluators to 

employ an airway adjunct as a significant weakness). Further, the evaluators observed 

for the first time during the second demonstration that CAE’s mannequin had pre-cut 

holes for use in simulating needle decompression of tension pneumothorax. AR 1936-37

(technical evaluation II). The evaluators determined that the pre-cut holes would prevent 

“realistic training” because they “reveal the answer to the trainee rather than allow the 

Instructor to teach and test the trainee on the proper needle chest decompression 

8
procedure,” which involves identifying the correct location for insertion of the needle.

Id. at 1937. Finally, the evaluators observed for the first time during the second 

demonstration that the brachial vein was in the wrong location on CAE’s mannequin, 

preventing proper simulation of IV therapy using the brachial vein. Id. at 1936. The 

government again rated CAE’s mannequin “Marginal.” See id. at 1938.

As to Laerdal’s mannequin, the evaluators identified three weaknesses and no 

significant weaknesses or deficiencies. Id. at 1941-42. The three weaknesses were 

substantially the same as those identified after the first system capability demonstration. 

Compare id. with AR 1480-81 (technical evaluation I). The government again rated 

Laerdal’s mannequin “Acceptable.” AR 1943 (technical evaluation II). The contracting 

officer again determined that Laerdal’s mannequin offered the best value to the 

government and selected Laerdal for award. See AR 2372 (2d source selection decision 

doc.).

D. The Second GAO Protests and Defendant’s Corrective Action

On February 6, 2013 CAE filed a second bid protest with GAO. AR 2083 (Apr. 5, 

2013 letter from Army to GAO). CAE filed supplemental protests on February 11, 2013 

and March 25, 2013. Id. In a letter dated April 5, 2013, the government advised GAO as 

follows:

The Army has reviewed the solicitation, the Statement of Work, and the 

Proposal Evaluation Report in light of Protester’s supplemental protest 

grounds and has concluded that this solicitation should be cancelled 

because neither the Protester’s mannequin nor Laerdal’s mannequin 

satisfied the requirements of the solicitation and Statement of Work. The 

Army will re-evaluate its requirement and the availability of technology in 

existence to meet the requirement. It may or may not issue a new 

solicitation for mannequins at some point in the future as need and 

availability of technology occur.

Id. at 2084. The government requested that GAO dismiss the protest as academic, see id., 

which GAO did on April 8, 2013, AR 1930 (GAO decision II). On April 9, 2013 the 

government notified Laerdal by e-mail that it was terminating the contract for 

convenience. AR 1944-45 (termination for convenience). 

Plaintiff filed this action the same day. See generally Compl. (bearing an April 9, 

2013 date stamp). 

On April 17, 2013 Joseph A. Giunta, Jr. (Mr. Giunta), principal assistant 

responsible for contracting at PEO STRI and director of the PEO STRI Acquisition 

Center, signed a “Memorandum for Record,” explaining why he decided to take 

9
corrective action after the second GAO protests by terminating Laerdal’s contract for 

convenience.11 AR 1954-55 (Giunta mem.) (some capitalization omitted). Mr. Giunta

explained that this decision “was based upon the fact that the solicitation did not permit 

trade-offs within the technical evaluation factors . . . , and upon the fact that the 

solicitation required that the mannequins meet every one of the 49 required technical 

requirements to be considered for award.” Id. at 1954. Mr. Giunta noted that, according 

to CAE’s own proposal, CAE’s mannequin did not comply with three of the solicitation

requirements: the capacity for radio operation at a distance of 300 feet, ears that ooze 

simulated fluids and sternal intraosseous acceptance sites. Id. at 1954-55. Mr. Giunta

also noted that, although the solicitation required each mannequin to simulate accurate 

responses to correctly and incorrectly performed needle decompression of tension 

pneumothorax, the government’s evaluators were unable to perform this procedure on the 

left side of Laerdal’s mannequin during the system capability demonstration. Id. at 1955

(Giunta mem.). Mr. Giunta stated that, “[s]ince neither of the Offerors’ proposals could 

clearly meet the Solicitation requirements[,] I determined that the most appropriate 

course of action would be to terminate the contract with Laerdal for convenience and 

cancel the current Solicitation.” Id. He intends to revise and recompete the solicitation. 

See id.

II. Legal Standards

A. Jurisdiction

Subject matter jurisdiction is a threshold matter that a court must determine at the 

outset of a case. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998); 

PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed. Cir. 2007). The United States 

Court of Federal Claims (Court of Federal Claims) has “jurisdiction to render judgment 

on an action by an interested party objecting to . . . the award of a contract [by a federal 

agency] or any alleged violation of statute or regulation in connection with a procurement 

or a proposed procurement.” 28 U.S.C. § 1491(b)(1) (2006). In the context of a 

challenge to a procuring agency’s corrective action, “[t]he Court of Federal Claims 

possesses jurisdiction to determine if a corrective action taken by an agency in response 

to a bid protest was reasonable under the circumstances.” Centech Grp., Inc. v. United 

States, 79 Fed. Cl. 562, 574 (2007) (citing, inter alia, Chapman Law Firm Co. v. 

Greenleaf Constr. Co., 490 F.3d 934, 938 (Fed. Cir. 2007)), aff’d, 554 F.3d 1029 (Fed. 

11Agency counsel represents that this decision was made by Joseph A. Giunta, Jr. (Mr. 

Giunta) because the contracting officer was out of the office to recover from surgery. 

Telephonic Status Conference (TSC) of Apr. 9, 2013, at 5:17:19-28 (Debra Talley). (The TSC 

held on April 9, 2013 was recorded by the court’s EDR system. The times noted refer to the 

EDR record of the TSC). Agency counsel also represents that Mr. Giunta is the contracting 

officer’s supervisor. See id. at 5:17:19-26. This information, however, does not appear to be in 

the administrative record.

10

 
Cir. 2009). A protestor must show that it has standing by meeting the “interested party” 

standard, that is, by showing that it (1) is an actual or prospective bidder or offeror, and 

(2) has a direct economic interest in the outcome of the procurement. Rex Serv. Corp. v. 

United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006). 

B. Motions for Judgment on the Administrative Record

Rule 52.1(c) of the Rules of the United States Court of Federal Claims (RCFC) 

provides for motions for judgment on the administrative record. See RCFC 52.1(c)(1). 

A motion for judgment on the administrative record is “distinguish[able]” from a motion 

for summary judgment in that there is no requirement that all material facts be 

undisputed. Bannum, Inc. v. United States (Bannum), 404 F.3d 1346, 1355 (Fed. Cir. 

2005); see also RCFC 52.1 rules committee notes (2006) (“Summary judgment standards 

are not pertinent to judicial review upon an administrative record.”). Instead, judgment 

on the administrative record “provide[s] for an expedited trial” on the evidence in the 

administrative record, permitting the court to make factual findings. See Bannum, 404 

F.3d at 1356. 

C. Bid Protest Standard of Review

“The standards and criteria governing the court’s review of agency decisions [on a 

Rule 52.1(c) motion] vary depending upon the specific law to be applied in particular 

cases.” RCFC 52.1 rules committee notes (2006). In the bid protest context, the court 

“shall review the agency’s decision pursuant to the standards set forth in section 706 of 

title 5” of the United States Code, 28 U.S.C. § 1491(b)(4), that is, under the 

Administrative Procedure Act standard, Impresa Construzioni Geom. Domenico Garufi v. 

United States (Impresa), 238 F.3d 1324, 1332 (Fed. Cir. 2001). 

“A bid protest proceeds in two steps.” Bannum, 404 F.3d at 1351. The first step 

is to demonstrate error, that is, to show that the agency acted in an arbitrary and 

capricious manner, without a rational basis or contrary to law. Id.; accord PAI Corp. v. 

United States, 614 F.3d 1347, 1351 (Fed. Cir. 2010); cf. 5 U.S.C. § 706(2)(A) (2006) 

(stating that the reviewing court shall set aside an agency decision that is “arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law”). The second 

step is to determine whether the error was prejudicial. Bannum, 404 F.3d at 1351.

“The arbitrary and capricious standard [applied in the first step] . . . is highly 

deferential” and “requires a reviewing court to sustain an agency action evincing rational 

reasoning and consideration of relevant factors.” Advanced Data Concepts, Inc. v. 

United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000); see also PAI Corp., 614 F.3d at 

1351 (“[P]rocurement decisions are subject to a highly deferential rational basis review.” 

(internal quotation marks omitted)). “[T]he test for reviewing courts is to determine 

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

exercise of discretion.” Impresa, 238 F.3d at 1332-33 (internal quotation marks omitted). 

11
This entails an examination of whether the procuring agency “‘entirely failed to consider 

an important aspect of the problem, offered an explanation for its decision that runs 

counter to the evidence before the agency,’” or reached a decision that was “‘so 

implausible that it could not be ascribed to a difference in view or the product of agency 

expertise.’” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 

(Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. 

Auto. Ins. Co., 463 U.S. 29, 43 (1983)). The contracting officer’s decision may be found 

to lack a rational basis, for example, if the agency “fail[ed] to follow the terms of its own 

Solicitation and select[ed] . . . an offeror based upon different requirements than those 

imposed upon [another] offeror.” Hunt Bldg. Co. v. United States, 61 Fed. Cl. 243, 273, 

modified on other grounds per stipulation, 63 Fed. Cl. 141 (2004). When examining 

agency corrective action, the court considers whether the corrective action was 

“reasonable under the circumstances.” Sierra Nev. Corp. v. United States, 107 Fed. Cl. 

735, 750 (2012); see Sheridan Corp. v. United States, 95 Fed. Cl. 141, 151 (2010) 

(“[T]his Court . . . will not object to an agency’s proposed corrective action provided it is 

reasonable under the circumstances.” (alteration and omission in original) (internal 

quotation marks omitted)), appeal dismissed per stipulation, 453 F. App’x 973 (Fed. Cir. 

2011) (unpublished); ManTech Telecomms. & Info. Sys. Corp. v. United States, 49 Fed. 

Cl. 57, 65 (2001) (same), aff’d per curiam, 30 F. App’x 995 (Fed. Cir. 2002) 

(unpublished).

Technical evaluations “involve discretionary determinations of procurement 

officials that a court will not second guess.” E.W. Bliss Co. v. United States, 77 F.3d 

445, 449 (Fed. Cir. 1996). Accordingly, a particularly high level of deference is granted 

to the agency’s technical evaluation. L-3 Commc’ns EOTech, Inc. v. United States (L-3 

EOTech), 87 Fed. Cl. 656, 664 (2009); see also Fort Carson Support Servs. v. United 

States (Fort Carson), 71 Fed. Cl. 571, 586 (2006) (“In particular, the evaluation of 

proposals for their technical excellence or quality is a process that often requires the 

special expertise of procurement officials, and thus reviewing courts give the greatest 

deference possible to these determinations.”). 

To determine whether the error was prejudicial, the second step of bid protest 

review, the court must determine whether “there was a ‘substantial chance’ [that the 

plaintiff] would have received the contract award but for the errors” in the bid process.

Bannum, 404 F.3d at 1353 (quoting Info. Tech. & Applications Corp. v. United States, 

316 F.3d 1312, 1319 (Fed. Cir. 2003)). 

D. Contract Interpretation

“Contract interpretation begins with the plain language of the agreement.” Foley 

Co. v. United States, 11 F.3d 1032, 1034 (Fed. Cir. 1993). “When interpreting the 

contract, the document must be considered as a whole and interpreted so as to harmonize 

and give reasonable meaning to all of its parts.” NVT Techs., Inc. v. United States, 370 

F.3d 1153, 1159 (Fed. Cir. 2004). If a solicitation contains a patent ambiguity, meaning 

12
that it “contains facially inconsistent provisions,” Stratos Mobile Networks USA, LLC v.

United States, 213 F.3d 1375, 1381 (Fed. Cir. 2000), “the government contractor has a 

duty to seek clarification from the government, and its failure to do so precludes 

acceptance of its interpretation in a subsequent action against the government,” Blue & 

Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007) (internal 

quotation marks omitted).

III. Discussion

Plaintiff requests judgment on the administrative record as to two issues: that the 

system capability demonstrations conducted by the government’s evaluators do not 

support the government’s decision to take corrective action, Pl.’s Mem. 27-29; and that 

the government’s decision to take corrective action must be set aside because it was 

based on a mistaken belief that the solicitation required the offerors to meet each of fortynine numbered requirements, id. at 32.12 The court considers plaintiff’s arguments in 

turn.

A. The Court Has Jurisdiction

12Plaintiff also asks the court to find that the decisions to make an award to plaintiff and 

to renew the award after the first GAO protests were rational. See Pl.’s Br. in Supp. of Mot. for 

J. on the AR (Pl.’s Mem.), Dkt. No. 31-2, at 30, 34. Because the court upholds the decision to 

terminate plaintiff’s contract, see infra Parts III-IV, it does not reach this issue. The court notes, 

however, the contradiction in plaintiff’s arguments. Plaintiff contends that the government’s 

decision to take corrective action was irrational because it was based in part on the system 

capability demonstrations. See Pl.’s Mem. 27-29. Yet plaintiff also contends that the award 

decisions were rational, see id. at 30, although they were based in part on the system capability 

demonstrations, see AR 1525-36 (1st source selection decision doc.) passim (referring to the first 

system capability demonstrations); AR 2362-72 (2d source selection decision doc.) passim

(referring to the second system capability demonstrations). Plaintiff was unable to explain this 

inconsistency at oral argument. See Oral Argument of Mr. Phillips at 10:20:02-21:41. 

Initially, plaintiff also contended that the government’s decision to take corrective action 

was “unauthorized and an unlawful violation of Federal Acquisition Regulation . . . 1.602-

1(a), . . . because it [was] made by [in-]house counsel at Army Materiel Command and not by

the . . . Contracting Officer.” Post-Award Procurement Protest Compl., Dkt. No. 1, ¶ 5; see also

Pl.’s Mem. 33-34 (requesting declaratory judgment that the decision to take corrective action 

was “unauthorized and . . . unlawful”). At oral argument, however, in response to the court’s 

question whether plaintiff had conceded this point in light of the memorandum written by Mr. 

Joseph A. Giunta, Jr. (Mr. Giunta), plaintiff stated: “Now that the Army has provided the 

justification [in the Giunta memorandum] . . . . I think the Army is entitled to the benefit of the 

assumption that it just took a while for the documentation to catch up to the decision.” See Oral 

Argument of Mr. Phillips at 10:19:15-49. Therefore, the court understands plaintiff to have 

withdrawn this argument.

13

 
Subject matter jurisdiction is a threshold matter that a court must determine at the 

outset of a case. See Steel Co., 523 U.S. at 94-95. In the context of a challenge to a 

procuring agency’s corrective action, “[t]he Court of Federal Claims possesses 

jurisdiction to determine if a corrective action taken by an agency in response to a bid 

protest was reasonable under the circumstances.” Centech Grp., Inc., 79 Fed. Cl. at 574. 

A protestor must show that it has standing by meeting the “interested party” standard, 

that is, by showing that it (1) is an actual or prospective bidder or offeror, and (2) has a 

direct economic interest in the outcome of the procurement. Rex Serv. Corp., 448 F.3d at

1307. Defendant does not contend that the court lacks jurisdiction to hear plaintiff’s 

claims, presumably because the facts of this case lend themselves to a finding that 

jurisdiction in this court is proper. Specifically, in this action, plaintiff challenges the 

government’s corrective action, see Compl. ¶ 1, making this court’s jurisdiction proper,

cf. Centech Grp., Inc., 79 Fed. Cl. at 574. In addition, plaintiff has standing because, as 

the awardee of the contract terminated by the government’s corrective action, see Compl. 

¶ 1, plaintiff is an actual offeror with a direct economic interest in the outcome of the 

procurement, cf. Rex Serv. Corp., 448 F.3d at 1307.

B. The Army’s Reliance on the System Capability Demonstrations Was 

Reasonable

Mr. Giunta’s decision to take corrective action was based in part on the evaluators’ 

observation, during the system capability demonstrations, that Laerdal’s mannequin did 

not meet the requirement to “simulate human responses to both correctly and incorrectly 

performed needle decompression procedures.” See AR 1955 (Giunta mem.) (internal 

quotation marks omitted); cf. AR 1039 (statement of work) (stating same); see also supra

Part I.B-C (describing the system capability demonstrations).

Plaintiff contends that the system capability demonstrations do not support the 

government’s decision to take corrective action because they were flawed in two 

respects. Pl.’s Mem. 27-29. First, the evaluators made somewhat different observations 

in the two demonstrations. See id. In the first demonstration, the evaluators were unable 

to use a particular airway adjunct with CAE’s mannequin, which they determined was a 

significant weakness. See id. at 27; supra Part I.B (describing the first demonstration). 

In the second demonstration, the evaluators were able to use the airway adjunct, but 

noticed that CAE’s mannequin had pre-cut holes for insertion of the needle used in 

simulated decompression of tension pneumothorax. Pl.’s Mem. 27-28; supra Part I.C

(describing the second demonstration). Because the pre-cut holes would “not allow for 

realistic training,” the evaluators assigned CAE’s mannequin an additional weakness. 

See AR 1936-37 (technical evaluation II). The evaluators also observed that the brachial 

vein was in the wrong location on CAE’s mannequin, which would not allow correct 

training on IV infusion, and assigned CAE another weakness on this basis. Id. at 1936. 

Plaintiff contends that “Occam’s razor, his theory of parsimony, demands repeatable 

14
observations,” and that “[w]ithout repeated observations of the same phenomenon, any 

conclusions are random, and therefore . . . irrational.”13 Pl.’s Mem. 28. 

Second, plaintiff contends, the system capability demonstrations were flawed 

because “[s]ome of PEO-STRI’s Technical Evaluators were more skilled, others less so--

and some were more recently experienced conducting the seven required procedures.” 

Id. Paraphrasing the declaration of one of plaintiff’s employees, Jimmy Glover (Mr. 

Glover), plaintiff states that some of the government’s evaluators found the difficulty 

other evaluators experienced in conducting the procedures “laughable.” See id. The 

relevant portion of Mr. Glover’s declaration states that he was present during the second 

system capability demonstration, see AR 2080 (Glover decl.), and describes the 

evaluators’ levels of skill as follows:

It was obvious to me and to numerous evaluators[] that some of the 

evaluators were either more skilled or that some were more recently 

practiced than other evaluators. Some of the evaluators actually joked at 

the difficulties some other evaluators were having at performing the 

prescribed procedure. Those difficulties were most obvious when some 

were handling and using the various airway adjuncts, performing a 

clinically correct surgical cricothyroidotomy, correctly palpating the site for 

and inserting a needle for chest decompression, and in correctly performing 

an IV in a brachial vein. While some had these difficulties, other evaluators 

were able to perform all of the required skills and procedures effortlessly.

id. at 2082; see also id. (stating that Mr. Glover is an employee of Laerdal). 

“The arbitrary and capricious standard . . . is highly deferential” and “requires a 

reviewing court to sustain an agency action evincing rational reasoning and consideration 

of relevant factors.” Advanced Data Concepts, Inc., 216 F.3d at 1058. In particular, the 

contracting agency’s technical evaluation “involve[s] discretionary determinations of 

procurement officials that a court will not second guess,” E.W. Bliss Co., 77 F.3d at 449, 

and is entitled to a high level of deference, L-3 EOTech, 87 Fed. Cl. at 664; see also Fort 

Carson, 71 Fed. Cl. at 586 (similar). When examining agency corrective action, the court 

13Plaintiff does not define Occam’s razor but cites Wikipedia, see Pl.’s Mem. 28, which 

provides the following definition: “Occam’s razor . . . is a principle of parsimony, economy, or

succinctness used in logic and problem-solving. It states that among competing hypotheses, the 

hypothesis with the fewest assumptions should be selected.” Occam’s razor, Wikipedia, 

http://en.wikipedia.org/wiki/Occam%27s_razor (last visited July 19, 2013). Wikipedia does not 

state that Occam’s razor requires results to be repeatable. At oral argument, plaintiff stated--

without citation to authority--that the requirement of repeatability is “[a] common principle of 

science.” Oral Argument of Mr. Phillips at 10:11:10-14.

15

 
considers whether the corrective action was “reasonable under the circumstances.” Sierra 

Nev. Corp., 107 Fed. Cl. at 750; see Sheridan Corp., 95 Fed. Cl. at 151 (similar).

Applying this standard, the court finds plaintiff’s first argument--that the results of 

the two system capability demonstrations were “random” and “irrational” because they 

differed, see Pl.’s Mem. 28--unpersuasive. Plaintiff cites no case in which retesting of 

products by a procuring agency was found invalid because the second test yielded a 

different outcome than the first test. Instead, it appears reasonable to the court that, upon 

retesting the mannequins, the evaluators might observe features that had previously 

escaped their notice and succeed in using an airway adjunct they had been unable to 

employ during the previous system capability demonstration. Such differences appear to 

the court to reflect not random or arbitrary results but rather the results of additional 

observation of the mannequins and greater familiarity with their use. Cf. Advanced Data 

Concepts, Inc., 216 F.3d at 1058; E.W. Bliss Co., 77 F.3d at 449; Sierra Nev. Corp., 107 

Fed. Cl. at 750.

With respect to plaintiff’s second contention--that certain of the government’s 

evaluators were less qualified than others, Pl.’s Mem. 28--“[t]he composition of an 

agency’s evaluation team is a matter in which the agency has great discretion,” Software 

Eng’g Servs., Corp. v. United States (Software Eng’g), 85 Fed. Cl. 547, 556 (2009); 

accord Chenega Mgmt., LLC. v. United States, 96 Fed. Cl. 556, 587 (2010). 

Accordingly, if “the expertise of the evaluators is unrelated to bad faith, conflict of 

interest, or bias, this Court will not question the composition of the technical evaluation 

team.” Software Eng’g, 85 Fed. Cl. at 557. Because plaintiff has not alleged bad faith, a 

conflict of interest or bias on the part of the evaluators, the court will not question the 

qualifications of the government’s evaluators. Cf. id.

The court therefore concludes that Mr. Giunta’s decision to take corrective action 

was not unreasonable under the circumstances because of his reliance on the system 

capability demonstrations or on evaluators whose qualifications plaintiff questions.14 Cf.

Sierra Nev. Corp., 107 Fed. Cl. at 750; Sheridan Corp., 95 Fed. Cl. at 151.

14Plaintiff also contends that the determination by Mr. Giunta to terminate the contract for 

convenience was “arbitrary or capricious” because the memorandum in which he memorialized 

the decision did not “demonstrate[] consideration of all the facts.” Pl.’s Br. in Supp. of Pl.’s 

Opp’n to Def.’s Cross-Mot. for J. on the AR (Pl.’s Resp.), Dkt. No. 42-2, at 29; see also Pl.’s 

Mem. 33 (requesting declaratory judgment based on an alleged lack of consideration of relevant 

facts). Specifically, plaintiff contends, Mr. Giunta failed to consider the fact that Laerdal’s 

written proposal stated that its mannequin was capable of simulating needle decompression of 

tension pneumothorax on both sides of the body and that Laerdal’s employees were able to 

perform this procedure during the system capability demonstrations. See Pl.’s Resp. 29.

16

 
C. The Solicitation Required Compliance with the Forty-Nine Numbered

Requirements

In his memorandum, Mr. Giunta stated that his decision to terminate Laerdal’s 

contract was based, in part, “upon the fact that the solicitation required that the 

mannequins meet every one of the 49 required technical requirements to be considered 

for award.” AR 1954 (Giunta mem.). In Mr. Giunta’s view, the solicitation did not allow 

tradeoffs to be made between a proposal’s strengths and its failures to meet solicitation 

requirements. See id.; see also supra Part I.B-C (describing the contracting officer’s 

tradeoff analysis). Mr. Giunta noted that, according to CAE’s own proposal, CAE’s 

mannequin did not comply with three of the solicitation’s requirements: the capacity for 

radio operation at a distance of 300 feet, ears that ooze simulated fluids and sternal 

intraosseous acceptance sites. AR 1954-55 (Giunta mem.). Mr. Giunta also noted that, 

although the solicitation required each mannequin to simulate responses to correctly and 

incorrectly performed needle decompression of tension pneumothorax, the government’s 

evaluators were unable to perform this procedure on the left side of Laerdal’s mannequin 

during the system capability demonstrations. Id. at 1955; see also supra Part I.B 

(describing the contracting officer’s determination that Laerdal’s mannequin did not 

perform this function). Mr. Giunta stated that, “[s]ince neither of the Offerors’ proposals 

could clearly meet the Solicitation requirements[,] I determined that the most appropriate 

course of action would be to terminate the contract with Laerdal for convenience and 

cancel the current Solicitation.” AR 1955 (Giunta mem.).

Relying on the proposition that a procurement decision “based on irrelevant 

factors . . . is arbitrary” and must be set aside, plaintiff contends that Mr. Giunta’s 

decision to terminate Laerdal’s contract was arbitrary and must be set aside because it 

was based on his incorrect belief that the solicitation required the mannequins to comply 

with each of the forty-nine requirements. See Pl.’s Mem. 32-33 (citing Advanced Data 

Concepts, Inc., 216 F.3d at 1058). Rather than requiring offerors to meet each technical 

requirement, plaintiff continues, the solicitation granted the contracting officer 

“discretion to decide which, if any, of the forty-nine specific requirements for the . . . 

mannequins would be disqualifying.” Id. at 32 (emphasis omitted). As support for its 

position, plaintiff quotes the following passage of the solicitation:

Mr. Giunta’s reliance on the evaluators’ observations was consistent with the evaluation 

framework set out in the solicitation, pursuant to which--regardless of the offerors’ claims in 

their written proposals--certain of each mannequin’s capabilities were to be assessed directly by 

the government’s evaluators after demonstration by the offeror’s employees. Cf. AR 1055 

(evaluation criteria) (stating that, during the system capability demonstrations, “the Government 

will perform procedures on each system in order to assess each product”). Therefore, no 

explanation was required for Mr. Giunta’s reliance on the evaluators’ observations.

17

 
The Government may determine, at its discretion, that an Offeror’s 

proposal is non-compliant, and therefore, ineligible for award if the 

proposal indicates that: it cannot or will not meet any of the [statement of 

work] . . . requirements; provides an approach that clearly does not meet 

any of the [statement of work] . . . requirements; or, includes data which 

prompts the Government to question the Offeror’s compliance with any of 

the [statement of work] . . . requirements.

Id. at 10 (emphasis and internal quotation marks omitted); cf. AR 1054 (evaluation

criteria) (stating same). 

Plaintiff further contends that the solicitation created a “scheme where observed 

‘Strengths’ and ‘Weaknesses’ could be offset, one against the other.” Pl.’s Resp. 28; see

Oral Argument of July 9, 2013 (Oral Argument), Argument of Cyrus E. Phillips, IV at 

10:24:19-31 (“The solicitation provides a rating scheme where you trade off what 

capabilities you comply with with which capabilities you can’t and what additional 

capabilities you offer.”). “What would be the point,” plaintiff asks, “of the adjectival 

ratings set out in the [solicitation] if all that was required was a check-list for the fortynine capabilities listed in the Statement of Work?” Pl.’s Resp. 30-31. Plaintiff further 

asserts that “‘[w]herever reasonable, the manifestations of intention of the parties to a 

promise or agreement are interpreted as consistent with each other and with any relevant 

course of performance, course of dealing, or usage of trade.’” Id. at 31 (alteration in 

original) (quoting Restatement (Second) of Contracts § 202 (1981)). Plaintiff argues that 

the contracting officer’s decisions to award the contract to Laerdal and to award the 

contract to Laerdal again after the first GAO protests formed a course of conduct 

suggesting that “a single non-compliance with [the forty-nine requirements] set out . . . in 

[the] Statement of Work was not automatically disqualifying.” Id. at 31-32. 

Defendant responds that “offerors were required to meet all the requirements of 

the Solicitation--including the 49 specific requirements enumerated in . . . the [statement 

of work]--and neither Laerdal nor CAE met all of the requirements.” Def.’s Mot. 14. 

Defendant contends that the evaluation process resulting in the awards to Laerdal was 

flawed and suggests that “the genesis of the problem” was that the evaluators incorrectly 

classified failures to meet solicitation requirements as “weaknesses,” which could be 

offset by strengths, instead of defining them as “deficiencies,” a mistake the contracting 

officer failed to correct. See Oral Argument of Michael D. Snyder (Mr. Snyder) at 

10:50:14-37; cf. AR 1501 (1st proposal evaluation report) (defining a “Weakness” as “[a]

flaw in the proposal that increases the risk of unsuccessful contract performance” and a 

“Deficiency” as including “[a] material failure of a proposal to meet a Government 

requirement”); AR 1055 (evaluation criteria) (allowing for tradeoffs between strengths 

and weaknesses but stating that a proposal “contain[ing] one or more deficiencies” is 

“unawardable”). According to defendant, the Army “erroneously engaged in ‘trade-off’ 

analysis[] [when awarding the contract to Laerdal although] neither CAE nor Laerdal met 

18
the 49 requirements.” Def.’s Mot. 16. Because the resulting awards to Laerdal were 

incorrectly made, defendant argues, “cancelation of the solicitation was appropriate.” 

Def.’s Reply 4; see also Oral Argument of Mr. Snyder at 10:25:25-34 (“The Army acted 

rationally and reasonably by canceling this solicitation . . . . The Army would have acted 

irrationally and unreasonably if it had not done so.”).

“The arbitrary and capricious standard . . . is highly deferential” and “requires a 

reviewing court to sustain an agency action evincing rational reasoning and consideration 

of relevant factors.” Advanced Data Concepts, Inc., 216 F.3d at 1058; see also PAI 

Corp., 614 F.3d at 1351 (similar). However, the contracting officer’s decision may be 

found to lack a rational basis if the agency “fail[ed] to follow the terms of its own 

Solicitation.” Hunt Bldg. Co., 61 Fed. Cl. at 273. When examining agency corrective 

action, the court considers whether the corrective action was “reasonable under the 

circumstances.” Sierra Nev. Corp., 107 Fed. Cl. at 750; see Sheridan Corp., 95 Fed. Cl. 

at 151 (similar). In this case, whether the government’s corrective action should be 

sustained depends on interpretation of the solicitation. Interpretation of a solicitation 

“begins with the plain language of the [solicitation].” See Foley Co., 11 F.3d at 1034. 

“When interpreting the [solicitation], the document must be considered as a whole and 

interpreted so as to harmonize and give reasonable meaning to all of its parts.” See NVT 

Techs., Inc., 370 F.3d at 1159.

The court agrees with defendant that the plain language of the solicitation required 

the mannequins to comply with each of the forty-nine requirements. Cf. Foley Co., 11 

F.3d at 1034 (stating that interpretation of a solicitation “begins with the plain language 

of the [solicitation]”). First, the Technical ratings set out in the solicitation were defined 

in such a manner that an offeror who did not meet all of the requirements was ineligible 

for award. Specifically, a proposal that “[did] not clearly meet [the] requirements” was to 

be rated “Marginal,” AR 1055 (evaluation criteria), and therefore ineligible for award, 

see id. at 1053 (defining eligibility). A proposal that “[did] not meet [the] requirements 

and contain[ed] one or more deficiencies,” was to be rated “Unacceptable,” AR 1055 

(evaluation criteria), and therefore ineligible for award, see id. at 1053; see also AR 1501 

(1st proposal evaluation report) (defining a deficiency, in part, as “[a] material failure of a 

proposal to meet a Government requirement”). The three Technical ratings making a 

proposal eligible for award, see AR 1053 (evaluation criteria) (defining eligibility)--

“Outstanding,” “Good” and “Acceptable”--could only be assigned to proposals that

“me[t] [the] requirements,” id. at 1055. The solicitation contemplated that strengths 

would be weighed against weaknesses to arrive at a Technical rating. See id. For 

instance, if a proposal’s “[s]trengths far outweigh [its] weaknesses,” the proposal was to 

be rated “Outstanding.” Id. However, at no point did the solicitation suggest that a 

19
strength could be weighed against a deficiency, such as a failure to meet solicitation 

requirement.

15

Consistent with this evaluation framework, the solicitation repeatedly stressed that 

offerors were required to meet each of the solicitation requirements. Specifically, the 

solicitation stated that the mannequins “shall include” the forty-nine numbered 

requirements. AR 1037 (statement of work) (emphasis added); see also id. at 1026 

(stating that the awardee “shall deliver [mannequins] that meet the requirements as 

defined in this [statement of work]--including the [forty-nine numbered] Requirements”). 

The solicitation also required offerors to send a transmittal letter, which was to “state that 

the Offeror is able to meet all requirements,” AR 1045 (evaluation criteria), and 

“cautioned” offerors that, “while the Government will not evaluate every [statement of 

work] . . . requirement . . . , the awardee Contractor will be required to comply with the 

[statement of work] . . . requirements during delivery order performance,” id. at 1054; see 

also id. at 1044 (stating that “[t]he successful Offeror will be required to comply with all 

aspects of the requirements documents,” including the statement of work). Additionally, 

it stated that, during the technical evaluation, “[t]he evaluators [would] evaluate the 

written proposals to determine the extent to which the proposed product meets or exceeds 

all requirements stated in the [statement of work].” Id. at 1056 (emphasis added). 

Contrary to plaintiff’s view, the solicitation provision upon which plaintiff relies, 

see Pl.’s Mem. 10 (citing the evaluation criteria provision discussing the government’s 

discretion to reject a proposal as noncompliant), is also consistent with an evaluation 

framework in which offerors had to meet each of the forty-nine requirements,

16 cf. NVT 

Techs., Inc., 370 F.3d at 1159 (stating that a contract “must be considered as a whole and 

interpreted so as to harmonize and give reasonable meaning to all of its parts”). The 

15At oral argument, defendant provided the following example of how weaknesses and 

the requirements might interact: “You could technically meet a requirement but still have a 

weakness with respect to that requirement. Perhaps technically you can perform a certain task, 

but you are concerned that the durability of that component of the mannequin is weak and it 

could break easily.” Oral Argument of Michael D. Snyder at 10:27:55-28:10.

16To the extent that plaintiff may believe that the reference to the government’s discretion 

rendered the solicitation ambiguous as to whether a contractor was required to meet the fortynine numbered requirements, plaintiff was required to seek clarification from the government 

before the close of bidding. Cf. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 

(Fed. Cir. 2007) (stating that, under the doctrine of patent ambiguity, “where a government 

solicitation contains a patent ambiguity, the government contractor has a duty to seek 

clarification from the government, and its failure to do so precludes acceptance of its 

interpretation in a subsequent action against the government” (internal quotation marks 

omitted)); Stratos Mobile Networks USA, LLC v. United States, 213 F.3d 1375, 1381 (Fed. Cir. 

2000) (“A patent ambiguity is present when the contract contains facially inconsistent provisions 

that would place a reasonable contractor on notice and prompt the contractor to rectify the 

inconsistency by inquiring of the appropriate parties.”).

20

 
solicitation’s reference to the government’s discretion in its statement that “[t]he 

Government may determine, at its discretion, that an Offeror’s proposal is non-compliant, 

and therefore, ineligible for award,” AR 1054 (evaluation criteria), did not allow the 

contracting officer to waive solicitation requirements. Instead, it described the 

contracting officer’s discretion to find that a mannequin did not meet the requirements, 

making it ineligible for award, based solely on his evaluation of the offeror’s written 

proposal. Cf. id.; see also id. at 1056 (“The evaluators will evaluate the written proposals 

to determine the extent to which the proposed product meets or exceeds all requirements 

stated in the [statement of work].”). The solicitation provision relied upon by plaintiff 

then described the bases upon which the contracting officer could exercise his discretion 

in finding a proposal noncompliant: the written proposal indicated that the offeror 

“cannot or will not meet any of the [statement of work] . . . requirements; provides an 

approach that clearly does not meet any of the [statement of work] . . . requirements; or, 

includes data which prompts the Government to question the Offeror’s compliance with 

any of the [statement of work] . . . requirements.” Id. at 1054. Plaintiff’s contention that 

this provision granted the contracting officer “discretion to decide which, if any, of the 

forty-nine specific requirements for the . . . mannequins would be disqualifying,” Pl.’s 

Mem. 32 (emphasis omitted), is incorrect.

The court therefore concludes that the government did not “fail[] to follow the 

terms of its own Solicitation” by determining that award could not be made to offerors 

who did not meet each of the solicitation requirements. Cf. Hunt Bldg. Co., 61 Fed. Cl. 

at 273. Instead, because the solicitation required offerors to meet each of the forty-nine 

numbered requirements, the government’s decision to terminate Laerdal’s contract for 

convenience owing to its failure to meet all of the requirements was “reasonable under 

the circumstances.” Cf. Sierra Nev. Corp., 107 Fed. Cl. at 750; Sheridan Corp., 95 Fed. 

Cl. at 151. 

IV. Conclusion

For the foregoing reasons, the government’s decision to take corrective action by 

terminating plaintiff’s contract for convenience was “reasonable under the 

circumstances,” see supra Part III.B (finding reasonable the Army’s reliance on the 

system capability demonstrations as a basis for canceling the contract), III.C (finding 

reasonable the government’s decision to cancel the contract because no offeror complied 

with all forty-nine numbered requirements), and consistent with the terms of the 

solicitation, see supra Part III.C (finding that the solicitation required compliance with all 

forty-nine numbered requirements). The court therefore holds that the corrective action 

was not arbitrary or capricious, without a rational basis or contrary to law. Cf. Advanced 

Data Concepts, Inc., 216 F.3d at 1058 (stating that, under the “highly deferential” 

arbitrary and capricious standard, a reviewing court must “sustain an agency 

determination evincing rational reasoning and consideration of relevant factors”); PAI 

Corp., 614 F.3d at 1351 (similar). Further, because the court finds that the corrective 

21
action did not constitute an error by the government, plaintiff suffered no prejudice. Cf.

Bannum, 404 F.3d at 1351 (requiring an error as a prerequisite to the court’s prejudice 

determination).

Plaintiff’s Motion is DENIED and defendant’s Motion is GRANTED. The Clerk 

of Court shall ENTER JUDGMENT in favor of defendant and defendant-intervenor, 

dismissing plaintiff’s claims with prejudice. 

No costs.

IT IS SO ORDERED.

s/ Emily C. Hewitt 

EMILY C. HEWITT

Chief Judge

22