In the United States Court of Federal Claims

No. 22-460

(Filed Under Seal: October 25, 2022)

(Reissued for Publication: December 2, 2022)

1

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ACCELGOV, LLC, *

*

 Plaintiff, *

*

v. *

*

THE UNITED STATES, *

*

 Defendant, *

*

 and *

*

DIRECTVIZ SOLUTIONS, LLC * 

*

 Defendant-Intervenor. *

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Post-Award Bid Protest; Motion 

for Judgment on the

Administrative Record; Unequal 

Treatment; Unstated Evaluation 

Criteria; Best-value Tradeoff.

W. Brad English, Maynard, Cooper & Gale, PC, Huntsville, AL, counsel for Plaintiff. With 

whom were Jon D. Levin, Emily J. Chancey, Nicholas P. Greer, and Mary Ann Hanke, of 

counsel.

Kelly A. Krystniak, U.S. Department of Justice, Civil Division, Washington, DC, counsel for 

Defendant. Colin O’Sullivan, Office of General Counsel, U.S. National Science Foundation, of 

counsel.

Craig A. Holman, Arnold & Porter Kaye Scholer LLP, Washington, DC, counsel for DefendantIntervenor. With whom was Thomas A. Pettit, of counsel.

OPINION AND ORDER

DIETZ, Judge.

AccelGov, LLC (“AccelGov”) protests a decision by the National Science Foundation 

(“NSF”) to award a Blanket Purchase Agreement (“BPA”) for information technology services 

1 This Opinion and Order was filed under seal on October 25, 2022, see [ECF 34], in accordance with the Protective 

Order entered on April 28, 2022 see [ECF 15]. The parties were given an opportunity to identify protected 

information, including source selection information, proprietary information, and confidential information, for 

redaction. The parties filed a joint status report on October 21, 2022, with agreed upon proposed redactions. [ECF 

36]. The Court accepts the parties’ proposed redactions. All redactions are indicated by bracket asterisks, e.g., “[* * 

*].” 
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to DirectViz Solutions, LLC (“DirectViz”). AccelGov challenges the NSF’s evaluation of the 

quotes submitted by AccelGov and DirectViz and its source selection decision as arbitrary and 

capricious. Based on the administrative record, the Court finds that the NSF’s evaluation and 

source selection decision were reasonable and consistent with the criteria set forth in the Request 

for Quotes (“RFQ”). Accordingly, AccelGov’s motion for judgment on the administrative record 

is DENIED, and the government’s and DirectViz’s respective cross-motions for judgment on the 

administrative record are GRANTED. 

I. BACKGROUND

A. Overview of the RFQ and Evaluation Factors

The NSF is a federal agency that “funds research and education in science and 

engineering . . . through grants, contracts, and cooperative agreements to colleges, universities, 

and other research and/or education institutions in all parts of the United States.” AR 307.2 On 

October 4, 2021, the NSF issued a RFQ for information technology customer support services

with the intent to award a single BPA. AR 304, 357, 759. The procurement was to be conducted 

in accordance with the ordering procedures set forth in Federal Acquisition Regulation (“FAR”) 

Subpart 8.4.3 AR 225, 357. The RFQ contemplated the award of a BPA with a maximum fiveyear performance period. AR 360. Under the BPA, the NSF could issue orders during the 

performance period on a firm-fixed price or labor hour basis. Id. The NSF estimated that 

purchases under the BPA during the performance period would total $75,000,000. AR 361.

The RFQ specified five evaluation factors: Past Experience (Factor 1), Key Personnel

(Factor 2), Technical Capability (Factor 3), Oral Presentation (Factor 4), and Price (Factor 5).

AR 392. The evaluation would be conducted in two phases. Id. Phase I of the evaluation would 

focus on Past Experience, Key Personnel, and Technical Capability, and Phase II would focus on 

Oral Presentation and Price. Id. The RFQ stated that the evaluation factors were listed “in 

descending order of importance” and that, “[w]hen combined, the non-price factors [were]

significantly more important than price.” AR 397. It also stated that “[p]rice [would] become 

increasingly important as the non-price factors become increasingly equal.” Id.

The Past Experience factor required offerors to submit three example contracts that are 

relevant to the statement of work. AR 392. The Key Personnel factor required offerors to submit 

resumes for the following positions: Lead Program Manager, Deputy Program Manager, 

eBusiness Lead, Operations Manager, and Desktop Manager. AR 393. The Technical Capability 

factor required offerors to describe their approaches to taking over responsibility for delivery of 

the support services within sixty days, providing Very Important Person (“VIP”) support, and 

providing eBusiness support. AR 393. After evaluating the Phase I factors, the NSF would 

advise the most highly rated offerors to proceed to Phase II. AR 394. Offerors who were not 

among the most highly rated would be advised not to proceed to Phase II because they were not 

considered to be viable competitors for the BPA award. Id.

2 The Court cites to the Administrative Record filed by the government at [ECF 24] as “AR ___.”

3 FAR Subpart 8.4 provides ordering procedures for agencies to place individual orders or establish BPAs for 

commercial supplies or services under the General Services Administration schedule program. See FAR 8.402. 
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The Oral Presentation factor required offerors to provide presentations responding to a 

standard set of scenario-based questions. AR 762. Offerors were required to submit their 

presentation slide deck to the NSF Contracting Officer (“CO”) in advance of their oral 

presentation. AR 395. Offerors were allotted sixty minutes to deliver their oral presentation. Id. 

At the conclusion of the presentation, the NSF evaluation team would meet and determine if they

had any questions. Id. If they did, the offeror would be given an additional sixty minutes to 

respond. AR 395-96. Offerors were required to submit their pricing information on the day of 

their oral presentation. AR 396. 

The RFQ explained that the NSF would use confidence ratings of “high confidence, some 

confidence, or low confidence” to rate an offeror’s Past Experience, Key Personnel, Technical 

Capability, and Oral Presentation. AR 397-98. The confidence ratings were defined as follows:

High Confidence The Government has high confidence that the Offeror understands

the requirement, proposes a sound approach, and will be successful 

in performing the contract with little or no Government intervention.

Some Confidence The Government has some confidence that the Offeror understands 

the requirement, proposes a sound approach, and will be successful 

in performing the contract with some Government intervention.

Low Confidence The Government has low confidence that the Offeror understands 

the requirement, proposes a sound approach, or will be successful in 

performing the contract even with Government intervention.

AR 761-62 (emphasis in original). Price would be evaluated for reasonableness. AR 398. 

The NSF Technical Evaluation Team (“TET”) would conduct the evaluations and assign 

confidence ratings to each of the offerors. See AR 568-77, 753-56. The CO, as the Source 

Selection Authority, would identify any disagreements with the TET’s evaluation and conduct a

best-value tradeoff. See AR 759-72. The NSF would award the BPA to the offeror that 

“represent[ed] the best value, considering the ‘lowest cost alternative’ consistent with FAR 

8.404(d).” AR 398.

B. The Evaluation, Award Decision, and Protest

The NSF received Phase I responses from 14 offerors, including AccelGov and 

DirectViz. AR 762. The TET completed its evaluation of the Phase I submissions and provided 

its report to the CO. Id. After reviewing the report, the CO advised five offerors, including 

AccelGov and DirectViz, that they were selected to proceed to Phase II. Id. AccelGov and 

DirectViz each received high confidence ratings for Past Performance, Key Personnel, and 

Technical Capability. AR 764.

As part of Phase II, AccelGov and DirectViz each provided an oral presentation. AR 763. 

Following the presentations, the TET assigned AccelGov a low confidence rating and DirectViz 

a high confidence rating for their respective presentations. AR 753-54, 755-56. In sum, 

AccelGov’s and DirectViz’s respective Phase I and II ratings were:

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complaint and the administrative record filed by the government in this case, the Court is 

satisfied that it has jurisdiction to render judgment on AccelGov’s challenge to the NSF’s 

evaluation and source selection decision and that AccelGov has standing to bring its challenge. 

III. STANDARD OF REVIEW

This Court reviews agency decisions in bid protests using the standard of review set forth 

in the Administrative Procedure Act (“APA”). 28 U.S.C. § 1491(b)(4); Harmonia Holdings Grp., 

LLC v. United States, 20 F.4th 759, 766 (Fed. Cir. 2021). This standard permits a court to set 

aside an agency’s contracting decision if the protestor shows that it was “arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2018); see 

Off. Design Grp. v. United States, 951 F.3d 1366, 1371 (Fed. Cir. 2020). The Court may set aside

an award if “the procurement official’s decision lacked a rational basis” or “the procurement 

procedure involved a violation of regulation or procedure.” WellPoint Mil. Care Corp. v. United 

States, 953 F.3d 1373, 1377 (Fed. Cir. 2020). However, “the reviewing court should not 

substitute its judgment for that of the agency[] but should review the basis for the agency 

decision to determine if it was legally permissible, reasonable, and supported by the facts.” 

Glenn Def. Marine (Asia), PTE Ltd. v. United States, 105 Fed. Cl. 541, 559 (2012), aff’d, 720 

F.3d 901 (Fed. Cir. 2013) (citing Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. 

Auto. Ins. Co., 463 U.S. 29, 43 (1983)). The protestor bears the burden to show by a 

preponderance of evidence the arbitrary and capricious nature of the agency decision. Mortg. 

Contracting Servs., LLC v. United States, 153 Fed. Cl. 89, 124 (2021); see also PAI Corp. v. 

United States, 614 F.3d 1347, 1351 (Fed. Cir. 2010) (holding that a disappointed bidder must 

point to “hard facts” to show that a CO’s decision was arbitrary).

Once the protestor shows that the agency erred in its contracting decision, the protestor 

must then establish that the agency’s conduct prejudiced them. Sys. Studs. & Simulation, Inc. v. 

United States, 22 F.4th 994, 997 (Fed. Cir. 2021); Alfa Laval Separation, Inc. v. United States, 

175 F.3d 1365, 1367 (Fed. Cir. 1999) (“To prevail in a bid protest, a protestor must show a 

significant, prejudicial error in the procurement process.”). 

IV. DISCUSSION

AccelGov argues that the NSF used unstated evaluation criteria in its evaluation of its key 

personnel, engaged in disparate treatment in its evaluation of AccelGov’s and DirectViz’s 

proposed technical capabilities, and performed an unreasonable evaluation of AccelGov’s oral 

presentation. AccelGov also argues that the CO’s best-value tradeoff analysis and source 

selection decision were irrational and inconsistent with the stated evaluation scheme. Based on

the record, the Court finds that the NSF’s evaluation, best-value tradeoff analysis, and source 

selection decision were reasonable and consistent with the terms of the RFQ, and, therefore, the 

Court will not disturb the NSF’s determinations.

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5 Because the Court finds that the NSF did not commit any of the alleged errors, the Court does not address whether

AccelGov was prejudiced. See Sys. Studs., 22 F.4th at 997 (stating that a decision to set aside a contract award is a 

“two-step process” with the first step asking whether the agency’s actions were arbitrary and, if so, the second step 

asking whether the agency’s arbitrary actions prejudiced the protestor).
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A. The NSF Did Not Use Unstated Evaluation Criteria When It Evaluated 

AccelGov’s Proposed Operations Manager.

In its Phase I evaluation, the TET assigned AccelGov a high confidence rating for its 

proposed key personnel. AR 570. However, it stated in its evaluation findings that AccelGov’s 

“quoted Operations Manager does not have [the] minimum years’ experience in the Operations 

Manager role” and that this lowered expectations of success. Id. In its best-value tradeoff 

analysis, the CO acknowledged that AccelGov’s quoted Operations Manager did not have the 

minimum experience whereas DirectViz’s quoted Operations Manager’s experience exceeded 

the required qualifications. AR 770. Consequently, the CO stated that she did “not agree with the 

high confidence rating” assigned by the TET because “AccelGov did not meet the minimum 

requirements for [the Key Personnel factor].” Id. AccelGov argues that the NSF applied unstated 

evaluation criteria by treating the RFQ’s preference that the quoted Operations Manager have a 

minimum of seven years’ experience “as a minimum requirement and negatively evaluated 

Accelgov’s quote on that basis.” Pl.’s Mot. for J. on the Admin. R. [ECF 27] at 14.

6 AccelGov 

further argues that the NSF unreasonably focused on the titles held by its quoted Operations 

Manager and failed to evaluate “whether his past experience—the work he actually did, 

regardless of title—gave him the necessary experience.” Id. at 10. 

An agency’s evaluation of proposals must be consistent with the standards set forth in the 

solicitation. 10 U.S.C. § 2305; FAR 15.305(a). The application of unstated evaluation criteria 

renders an agency’s decision arbitrary and capricious. See NVE, Inc. v. United States, 121 Fed. 

Cl. 169, 180 (2015) (stating that an offeror can challenge an agency’s analysis as “arbitrary, 

capricious, or an abuse of discretion” when the agency relies on unstated evaluation criteria). To 

succeed on an unstated evaluation criteria claim, a protester must show that “the procuring 

agency used a significantly different basis in evaluating the proposals than was disclosed[.]”

Banknote Corp. of Am., Inc. v. United States, 56 Fed. Cl. 377, 387 (2003), aff’d, 365 F.3d 1345 

(Fed. Cir. 2004).

The record shows that the NSF did not use a significantly different basis in evaluating 

AccelGov’s proposed Operations Manager than was disclosed in the RFQ. For the Operations 

Manager, the RFQ required the following: “[d]emonstrated experience as an Operations Manager

(preferred minimum of 7 years of experience).” AR 420. Offerors were required to submit a 

resume, not exceeding two pages in length, for the Operations Manager position. AR 393. The 

RFQ stated that the NSF would “evaluate the resumes of the key personnel staff proposed, for 

the depth and breadth of knowledge, capabilities and/or work experience related to disciplines 

critical to the successful completion of program objectives described in the statement of work.” 

AR 265. AccelGov submitted the resume of [* * *] for the position of Operations Manager. See 

AR 512-13. In its evaluation, the TET determined that [* * *] did not possess the preferred 

minimum years of experience in the Operations Manager role. AR 570. This determination is 

supported by [* * *]’s resume. 

[* * *]’s resume lists only one position with the title of Operations Manager. See AR 

512-13. This position listing is accompanied by a detailed description of the duties that he 

6 All page numbers in the parties’ briefings refer to the page number generated by the CM/ECF system. 
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performed for approximately two years from February 2019 to the date AccelGov submitted its 

proposal in October 2021. AR 512. This two-year period is well short of the preferred minimum 

of seven years’ experience. Prior to working as an Operations Manager, [* * *] held the position 

of [* * *] Manager from November 2017 to February 2019. AR 512-13. This position listing is 

also accompanied by a detailed description of the duties that he performed. Id. It is conceivable 

that the TET could have determined that the duties performed by [* * *] in the [* * *] Manager 

position were equivalent to those performed by an Operations Manager. However, even if the 

TET were to have credited [* * *] with having demonstrated experience as an Operations 

Manager during his tenure as [* * *] Manager, it would provide only an additional two years of 

demonstrated experience, which, together with his Operations Manager position, would amount 

to four years of experience—three years short of the preferred minimum. None of the other 

positions listed on [* * *]’s resume include the Operations Manager title or otherwise provide a

description of his duties.

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See AR 513. Based on the contents of [* * *]’s resume, it was

therefore reasonable for the TET to conclude that AccelGov’s quoted Operations Manager did

not possess the preferred minimum of seven years of experience. Since the RFQ contained a

stated preference that the Operations Manager have a minimum of seven years of experience, the 

NSF did not employ unstated evaluation criteria. See Galen Med. Assocs., Inc. v. United States, 

369 F.3d 1324, 1330 (Fed. Cir. 2004) (“Where an evaluation is challenged, we will examine the 

agency’s evaluation to ensure that it was reasonable and consistent with the evaluation criteria 

and applicable statutes and regulations, since the relative merit of competing proposals is 

primarily a matter of administrative discretion.”) (quoting E.W. Bliss Co. v. United States, 77 

F.3d 445, 449 (Fed. Cir. 1996)); Sophion Bioscience, Inc. v. United States, 154 Fed. Cl. 414, 422 

(2021) (finding the government did not use unstated evaluation criteria when it evaluated 

proposals based on the unambiguous text of the RFQ).

If the NSF had treated the RFQ’s stated preference for an Operations Manager with a 

minimum of seven years of experience as a requirement, the NSF would have determined that 

AccelGov was ineligible for award due to its failure to meet the experience requirement. See AR 

266 (“At any time prior to selection, including upon receipt of quotation, the Government may 

exclude a quotation from further consideration for any material failure to follow instructions[.]”);

E.W. Bliss, 77 F.3d at 449 (“[A] proposal that fails to conform to the material terms and 

conditions of the solicitation should be considered unacceptable”); Centech Grp., Inc. v. United 

States, 554 F.3d 1029, 1037-38 (Fed. Cir. 2009); DigiFlight, Inc. v. United States, 150 Fed. Cl. 

650, 657 (2020). Instead, the TET assigned AccelGov a high confidence rating for the Key 

Personnel factor despite its finding that AccelGov’s quoted Operations Manager lowered

expectations of successful performance because he did not possess the preferred minimum years 

of experience. See AR 570. Additionally, while the CO acknowledged the TET’s finding and, as 

a result, stated her disagreement with the high confidence rating, the CO did not eliminate 

AccelGov from consideration on this ground. See AR 770. Thus, the record does not support 

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If [* * *]’s experience in these other positions involved duties that were relevant to the Operations Manager role, 

AccelGov had the obligation to include descriptions of his experience in these positions so that the NSF could 

appropriately evaluate whether the duties that he performed demonstrated that he was capable of performing the 

duties of an Operations Manager. See Harmonia Holdings Grp., LLC v. United States, 136 Fed. Cl. 298, 308 (2018) 

(“The offeror bears the burden of presenting an adequately written proposal that satisfies the requirements of the 

solicitation.”) (quoting Mercom, Inc. v. United States, 131 Fed. Cl. 32, 40 (2017)). 
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AccelGov’s argument that the NSF treated the RFQ’s stated preference as a minimum 

requirement.

B. The NSF Did Not Treat AccelGov’s and DirectViz’s Proposed VIP Support 

Approaches or Training Programs Unequally.

The TET also assigned a high confidence rating to AccelGov and DirectViz for the 

Technical Capability factor. AR 571, 575. Nevertheless, AccelGov argues that the NSF “engaged 

in unequal treatment when it treated substantively indistinguishable aspects of AccelGov’s and 

DirectViz’s quotes differently.” [ECF 27] at 16. AccelGov asserts that the NSF overlooked 

several benefits in AccelGov’s quote that it recognized in DirectViz’s quote when the NSF was 

evaluating their respective approaches for providing VIP support. Id. at 11-15. Additionally, 

AccelGov asserts that the NSF treated the training programs offered by AccelGov and DirectViz 

unequally. Id. at 15-16.

The FAR requires that offerors “receive impartial, fair, and equitable treatment.” FAR 

1.602-2(b). Therefore, an agency decision is arbitrary and capricious when it results from the 

unequal treatment of the offerors. See CliniComp Int’l Inc., v. United States, 117 Fed. Cl. 722, 

742 (2014) (stating that “unequal treatment is fundamentally arbitrary and capricious, and 

violates . . . full and open competition[.]”). However, “[a]n agency is under no obligation to 

assign dissimilar proposals the same evaluation rating.” Off. Design Grp., 951 F.3d at 1372

(citing FAR 1.102-2(c)(3) (“All contractors and prospective contractors shall be treated fairly 

and impartially but need not be treated the same.”)). To prove unequal treatment, a protestor

must demonstrate that the relevant elements in its proposal were “substantively indistinguishable 

or nearly identical from those contained in other proposals.” Id. (quotations omitted). If the 

protestor demonstrates that the relevant proposal elements are substantively indistinguishable, 

the Court may then compare and analyze “the agency’s treatment of proposals without 

interfering with the agency’s broad discretion in these matters.” Id. On the other hand, if the 

protestor fails to demonstrate that the proposal elements are substantively indistinguishable, the

Court is not appropriately positioned to analyze the agency’s treatment of proposals because

doing so would involve second-guessing the agency’s discretionary determinations underlying its 

technical ratings. See Enhanced Veterans Sols., Inc. v. United States, 131 Fed. Cl. 565, 588 

(2017).

1. The NSF’s Evaluation of VIP Support Approaches 

The RFQ required that offerors “[d]escribe [their] approach to providing Very Important 

Person (VIP) Support.” AR 393. When evaluating quotes, the TET found that DirectViz’s quote

“demonstrate[d] a firm understanding of VIP support expectations (e.g., [* * * * * * * * * * * * * 

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

* * * *]).” AR 575. AccelGov asserts that its proposed approach was “substantively the same” 

with respect to [* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 

* * * * * * * * * *]. [ECF 27] at 20. Therefore, AccelGov argues that the NSF engaged in 

unequal treatment when it recognized these aspects of DirectViz’s proposal and failed to 

recognize the same aspects in its proposal. Id.
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AccelGov misinterprets NSF’s finding on DirectViz’s approach. The TET determined 

that DirectViz’s quoted approach demonstrated a “firm understanding of VIP Support 

Expectations[,]” not based solely on its approach to “[* * * * * * * * * * * * * * * * * * * * * * * 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ][,]” but instead based on 

DirectViz’s entire approach to VIP Support. See AR 575. With its use of “e.g.” before its listed 

expectations, the NSF’s reference to these individual aspects are clearly intended as examples of

its expectations for VIP support. See Black’s Law Dictionary, (11th ed. 2019) (defining “e.g.” as 

“[f]or example”). Furthermore, the performance work statement provided with the RFQ requires 

that offerors meet these expectations when performing VIP support services. See AR 328-29. 

Thus, any sensible offeror would be sure to address these expectations for VIP support as part of 

their quotation. Consequently, AccelGov’s and DirectViz’s quotations naturally share

similarities with respect to these expectations. It does not follow, however, that their respective 

approaches to VIP Support are substantively indistinguishable.

To the contrary, AccelGov’s and DirectViz’s respective proposed approaches to VIP 

support have substantive differences that permit the NSF to conclude that DirectViz’s proposed 

approach reflects a firm understanding of the VIP support expectations and to also not assign the 

same finding to AccelGov’s proposed approach. For instance, DirectViz proposed a “[* * * * * * 

* * * * * * * * * * * *]” to ensure that the “[* * * * * * * * * * * * * * * * * * * * *] [,]” see AR 

559, whereas AccelGov proposed a [* * * * * * * * * * * * * * * * * * ] for “[* * *],” see AR 

522. DirectViz also proposed an “[* * * * * * * * * * * * * * * * * * *]” [* * * * * * * * * * * * * 

* * * * *] and a [* * * * * * * *], see AR 559-61, and AccelGov did not propose a [* * * * * * * 

* * * * * ] VIP support, see AR 522-24. In addition to these differences, there are several other 

notable differences buried within the respective approaches. Compare AR 523 with AR 559

(AccelGov and DirectViz use different flowcharts to demonstrate how they would each handle

VIP support requests); compare AR 522-23 with AR 559-60 (AccelGov and DirectViz describe 

their respective VIP support team staffs with different levels of detail); see AR 561 (DirectViz 

provides an additional flowchart to demonstrate how its [* * * * * * * * * * * * * * * * * * * * * 

* * * * * * * * * * * * * * * * * * * *]). Because AccelGov’s and DirectViz’s proposed 

approaches are not substantively indistinguishable, the Court is unable to analyze the NSF’s 

evaluation of the proposed approaches without interfering with the NSF’s broad discretion to

determine what proposed features constitute an advantage over others. See Enhanced Veterans,

131 Fed. Cl. at 588 (2017); Vantage Assocs., Inc. v. United States, 59 Fed. Cl. 1, 19 (2003) (“The 

wide discretion afforded contracting officers extends to a broad range of procurement functions, 

including the determination of what constitutes an advantage over other proposals.”).

2. The NSF’s Evaluation of the Proposed Training Programs

AccelGov and DirectViz each proposed training programs as part of their quotations. See

AR 525-26 (AccelGov’s training program); AR 559-60 (DirectViz’s training program). When 

evaluating AccelGov’s proposed training program, the TET found that the program lowered 

expectations of success because “[a]lthough [a] training plan to [* * * * * * * * * * * * * * * * * 

* * * * * * * * * * * * * * *] work [would] be helpful to [the NSF] during the performance of the 

contract, the time it [would] take to develop comprehensive training plans [would] hinder the 

ability to assist customers from day one unless AccelGov capture[d] incumbent personnel.” AR 

572. With respect to DirectViz’s training program, the NSF found that its “planned use of [an]
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[* * *] to provide training for staff that will support [* * * * * * ]” raises the expectations of 

success. AR 576. AccelGov argues that the NSF engaged in unequal treatment in its evaluation 

of the respective training programs because “both offerors offered to design a training program” 

for which “the development and training process would take place during contract performance.”

[ECF 27] at 21. Yet, the NSF “only noted its concern about the time that design/development 

process would take in its evaluation of AccelGov’s quote.” Id.

AccelGov’s unequal treatment argument regarding the training programs fails because 

AccelGov’s and DirectViz’s proposed training programs relate to different aspects of the 

performance work statement and are substantively distinguishable. In its quote, AccelGov 

proposed to “develop and maintain[] comprehensive training plans, training guides, and required 

documentation for [* * * * * * * * * * * * * * *][.]” AR 526. AccelGov’s training program is 

focused on ensuring that its [* * * * * * * * * * *] is fully trained and has the necessary 

understanding of the [* * * * * * * * * * * * * *]. See AR 525-26. This relates to the NSF’s 

eBusiness support requirements. AR 329. On the other hand, DirectViz’s training program 

consists of an [* * * * * * * * * * * * * * *] designed to “[* * * * * * * * * * * * * * * * * * * * * 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *].” AR 560. The focus of 

DirectViz’s training program is to improve the [* * * * * * * * *] and enhance the [* * * * * * * 

* * * * *]. Id. This relates to the NSF’s [* * * * * * * * * * * * * *]. AR 328-29. While it may be 

true that each training program would be developed during contract performance, AccelGov’s 

training program relates to [* * * * * * * * * * * * * * * * * *] and DirectViz’s program relates 

only to [* * * * * * *]. Because AccelGov’s and DirectViz’s proposed training programs are 

different, the Court is not able to comparatively analyze the NSF’s treatment of the programs. 

See Off. Design, 951 F.3d at 1372; Ascendant Servs., LLC v. United States, 160 Fed. Cl. 275, 294 

(2022). 

Further, the NSF’s finding with respect to AccelGov’s training program had a rational 

basis. AccelGov proposed to develop a training program to train its personnel on the NSF’s [* * 

* * * * * * * * * * * *] as part of its quoted approach. AR 526. The time that it would take to 

develop such a program could impact AccelGov’s ability to provide customer support services

on the NSF’s [* * * * * * * * * * *] at the outset of contract performance. Because this finding is 

reasonable, the Court will not second-guess it. See Bowman Transp., Inc. v. Ark.-Best Freight 

Sys., Inc., 419 U.S. 281, 286 (1974); Weeks Marine, 575 F.3d at 1371-72.

C. The NSF’s Evaluation of AccelGov’s Oral Presentation Was Not Arbitrary.

The TET assigned AccelGov a low confidence rating for its oral presentation. AR 753. In 

support of its rating, the TET stated that AccelGov had proposed a reduction in staff that “does 

not reflect an understanding of [the] NSF’s customer expectations and culture” and that the 

proposed efficiencies “would present significant risk to [the] NSF [because] eBusiness services 

are central to the Agency’s mission and key to customer satisfaction with Service Desk support.”

AR 753-54. The TET further stated that AccelGov’s “improvements related to [* * * * * * * * * 

* * * * * * * * * *] did not include any details about the approach or how these [* * * * * * * *] 

would translate to service improvements.” Id. AccelGov argues that these findings were arbitrary 

because its proposed approach was “in harmony with [the NSF]’s objectives as set forth in the 
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RFQ and [the NSF]’s understanding of AccelGov’s approach was unreasonable.” Pl.’s Reply 

[ECF 31] at 12. 

When a protestor alleges the agency's decision was arbitrary, the Court reviews “whether 

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

discretion.” Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 992 (Fed. Cir. 2018) (quotations 

and citations omitted). “[T]he disappointed bidder bears a heavy burden of showing that the 

award decision had no rational basis.” Centech Grp., 554 F.3d at 1037 (quotations and citations 

omitted). There is no “universal test” as to the sufficiency of an agency's explanation for its 

decision and “no one factor is dispositive.” Yang Enters., Inc. v. United States, 156 Fed. Cl. 435, 

449 (2021) (citing Tolliver Grp., Inc. v. United States, 151 Fed. Cl. 70, 111–12 (2020)). An 

agency action is arbitrary when “the agency ‘entirely failed to consider an important aspect of 

the problem, offered an explanation for its decision that runs counter to the evidence before the 

agency, or [the decision] is so implausible that it could not be ascribed to a difference in view or 

the product of agency expertise.’” Ala. Aircraft Indus. v. United States, 586 F.3d 1372, 1375 

(Fed. Cir. 2009) (quoting State Farm, 463 U.S. at 43).

During its oral presentation, AccelGov stated that it “reduced the total labor hours by [* * 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *].” AR 616. AccelGov 

further stated that the proposed [* * *] reduction in full-time staff resulted in an estimated 

reduction of [* * * * * * * * * * * * * * * * * * * * * * * * * * * ]. Id. AccelGov had not 

previously mentioned staff reductions as part of its quote. In response to this revelation, the NSF 

asked two clarifying questions. AR 595. First, the NSF asked AccelGov to “advise if [it]

intend[ed] to reduce the [Full Time Employee] count across the option years.” Id. Second, the 

NSF asked AccelGov to “elaborate on the strategy” of using [* * * *] to support the staff 

reductions. Id. In response to the first question, AccelGov confirmed that it intended to reduce 

staffing across the option years and explained that it would accomplish the reductions by “[* * * 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *].” 

AR 707. In response to the second question, AccelGov stated that it could “[* * * * * * * * * * * 

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

* * * * * * * * * * * * * * * * * * * * *]. See AR 707-10. In addition, AccelGov provided several 

examples of how it could use [* * * * * * * * * * * * * *] to achieve these objectives. See id.

The Court finds that the NSF had a rational basis for its findings with respect to

AccelGov’s oral presentation. The RFQ made clear that information technology services were 

critical to the NSF’s mission and that reliable operations and superior customer service were 

primary objectives. See AR 273 (“Because agency IT systems and services are so critical to the 

mission, the Foundation emphasizes two primary service objectives in its provision of IT support 

services: secure, reliable operations and superior customer service.”). Thus, it is not surprising

that the NSF had concerns with AccelGov’s proposed plan to reduce staff—especially when it 

was first revealed to the NSF during AccelGov’s oral presentation. In an apparent attempt to 

address its concerns, the NSF questioned AccelGov to gain a better understanding of its plan for 

implementing the staff reductions. See AR 595. It appears, however, that AccelGov’s responses 

did not satisfactorily address the NSF’s concerns. Based on a review of the transcript from 

AccelGov’s oral presentation, the NSF had reasonable grounds to conclude that AccelGov’s 

responses were insufficient because AccelGov’s explanations as to how it would implement staff 
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reductions without impacting customer service were vague. See AR 709-711; PAE Aviation & 

Tech. Servs., LLC v. United States, 156 Fed. Cl. 454, 464-65 (2021) (finding an agency’s 

decision to assign a weakness for not adequately explaining labor efficiencies rational). Because 

the NSF’s evaluation of AccelGov’s oral presentation was consistent with the RFQ evaluation 

method for oral presentations and the NSF’s findings with respect to AccelGov’s proposed staff 

reductions had a rational basis, the Court will not disturb the NSF’s conclusions. See Advanced 

Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000) (holding that the 

Court must “sustain an agency action evincing rational reasoning and consideration of relevant 

factors.”).

D. The Source Selection Decision was Not Arbitrary or Inconsistent with the 

Stated Evaluation Criteria.

In its best-value tradeoff and source selection decision, the CO determined that

“establishment of a BPA with [DirectViz] represents the best value and results in the lowest 

overall cost alternative to meet the Government’s needs.” AR 769. AccelGov challenges the 

NSF’s decision as arbitrary, arguing that it “failed to follow the RFQ’s stated evaluation scheme” 

and that “the CO should have given more consideration to the savings associated with 

AccelGov’s proposal.” [ECF 27] at 29. AccelGov’s quote was $[* * * * * *] less than 

DirectViz’s quote. See AR 769.

The RFQ stated that the award would be made to the offeror that “represents the best 

value, considering the ‘lowest cost alternative’ consistent with FAR 8.404(d).” AR 398. FAR 

8.404(d) states that “[b]y placing an order against a schedule contract using the procedures in 

[FAR] 8.405, the ordering activity has concluded that the order represents the best value (as 

defined in FAR 2.101) and results in the lowest overall cost alternative (considering price, 

special features, administrative costs, etc.) to meet the Government’s needs.” FAR 8.405-

3(b)(2)(viii) requires that the agency “establish the BPA with the schedule contractor(s) that 

represents the best value.” In conducting a best-value determination, the agency must document 

its “rationale for any tradeoffs in making the selection.” FAR 8.405-3(a)(7)(viii).

When reviewing an agency’s best-value tradeoff and selection decision, the Court will 

analyze it “to determine whether it is reasonable and within the agency's discretion.” Distributed 

Sols., Inc. v. United States, 106 Fed. Cl. 1, 24 (2012). Procurement officials have substantial 

discretion when determining which quotation represents the best-value to the agency in a 

procurement under FAR subpart 8.4. Sigmatech, Inc. v. United States, 141 Fed. Cl. 284, 321 

(2018). The Court will not overturn a procurement official’s determination when the 

procurement official “reasonably exercises independent judgement and makes a business 

decision justifying the award.” Id.

In this instance, the CO determined that DirectViz’s quoted approach for the information 

technology services justified paying a higher price. See AR 769-70. The CO explained: 

While the DirectViz quote is higher-priced relative to the quotes 

from AccelGov . . . it received a higher confidence rating under the 

Oral Presentation Factor 4 and otherwise received the same 
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confidence ratings under Factors 1 through 3. Although Factor 4 is 

the least important non-price factor, it is more important than Price 

Factor 5.

AR 770. This explanation is consistent with the RFQ evaluation criteria, which provided that 

“price is the least important factor” and that “[w]hen combined, the non-price factors are 

significantly more important than price.” AR 397. In the decision documentation, the CO 

acknowledged that “before [the] NSF can select a higher-priced quote that has been rated nonprice superior to a lower-priced but acceptable one, the decision must be supported by a rational 

explanation of why the higher-rated quote, is, in fact, superior, and explain why the non-price 

superiority warrants paying a price premium.” AR 769. In this regard, the CO conducted a 

comparison of DirectViz’s and AccelGov’s quotes under each non-price evaluation factor and 

identified “differences and discriminators.” AR 770. In her comparison, the CO noted that she 

“did not discern any significant differences” under the Past Experience factor. However, she did 

document differences under the Key Personnel, Technical Capability, and Oral Presentation 

factors. Based on these differences, she explained that “in peering behind the confidence ratings, 

it is my opinion that it [is] worth paying the extra $[* * ** * *]. . . price premium[]” for 

DirectViz’s quote. AR 770. Having determined that the superiority of DirectViz’s quote 

warranted paying the price premium, the CO concluded that DirectViz’s quote “represent[ed] the 

best value to the Government, price and other factors considered” and that “it reflect[ed] the 

lowest overall cost alternative considering the special features required by NSF.” AR 772. The 

record shows that the CO engaged in a meaningful tradeoff analysis, considered the benefits of 

DirectViz’s higher-priced quotation in comparison to AccelGov’s, and documented her business 

judgments when deciding to select DirectViz despite its higher price. Because the CO properly 

adhered to the RFQ evaluation criteria and reasonably exercised her discretion, the Court will not 

meddle with the CO’s best-value determination. See Distributed Sols., 106 Fed. Cl. at 24-25.8

V. INJUNCTIVE RELIEF

AccelGov requests that the Court enter a permanent injunction enjoining performance of 

the BPA awarded to DirectViz and requiring that the NSF reperform the evaluation. [ECF 27] at 

31-33. When deciding if a permanent injunction is warranted, the Court considers whether: “(1) 

the plaintiff has succeeded on the merits, (2) the plaintiff will suffer irreparable harm if the court 

withholds injunctive relief, (3) the balance of hardships to the respective parties favors the grant 

of injunctive relief, and (4) the public interest is served by a grant of injunctive relief.” Centech 

Grp., 554 F.3d at 103. Achieving success on the merits “is a necessary element for a permanent 

injunction.” Dell Fed. Sys., 906 F.3d at 999. In this case, AccelGov has not succeeded on the 

merits. Therefore, AccelGov is not entitled to a permanent injunction.

8 AccelGov also argues that the CO allowed the alleged evaluation errors to affect the best-value tradeoff. See [ECF 

27] at 26-28. This argument is derivative of its other challenges to the NSF’s evaluation. Because the Court has 

already rejected AccelGov’s challenges to the NSF’s evaluation, this argument cannot stand. See Newimar S.A. v. 

United States, 160 Fed. Cl. 97, 133-34 (2022); Ace-Fed. Reps., Inc. v. United States, 150 Fed. Cl. 94, 112 (2020). 
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VI. CONCLUSION

For the reasons stated above, AccelGov’s motion for judgment on the administrative 

record is DENIED, and the government’s and DirectViz’s respective cross-motions are 

GRANTED. The Clerk is DIRECTED to enter judgment accordingly. 

Some information contained in this Opinion may be considered protected information 

subject to the Protective Order entered on April 28, 2022. [ECF 15]. Accordingly, the Opinion is 

filed UNDER SEAL. The parties SHALL CONFER and FILE on or before November 8, 

2022, a joint status report that: identifies the information, if any, that the parties contend should 

be redacted; explains the basis for each proposed redaction; and includes an attachment of the 

proposed redactions for this Opinion.

IT IS SO ORDERED.

s/ Thompson M. Dietz 

THOMPSON M. DIETZ, Judge