Clinicomp International, Inc. v. United States

In the United States Court of Federal Claims
No. 14-188 C

(Filed August 1, 2014)1

*************************
CLINICOMP INTERNATIONAL, INC., *
* Post-Award Bid Protest;
Plaintiff, * Waiver of Plaintiff’s
* Challenge to the
v. * Solicitation’s Terms;
* Disparate Treatment of
THE UNITED STATES, * Offerors in Evaluation of
* Quotations.
Defendant. *
*************************

Richard J.R. Raleigh, Jr., Huntsville, AL, for plaintiff. Jerome S. Gabig,
Jr., Huntsville, AL, of counsel.

Michelle R. Musgrave, United States Department of Justice, with whom
were Stuart F. Delery, Assistant Attorney General, Robert E. Kirschman, Jr.,
Director, and Patricia M. McCarthy, Assistant Director, Washington, DC, for
defendant.
_________________________

OPINION AND ORDER
_________________________

BUSH, Senior Judge.

1
/ This opinion was issued under seal on July 8, 2014. Pursuant to ¶ 5 of the ordering
language, the parties were invited to identify source selection, proprietary or confidential
material subject to deletion on the basis that the material was protected/privileged. Only plaintiff
proposed redactions. Brackets ([ ]) identify the redacted portions of this opinion.
 This post-award bid protest arises out of Request for Quotations (RFQ) No.
VA249-13-Q-1015, by which the United States Department of Veterans Affairs
(VA) sought, by means of a lowest price technically acceptable procurement
conducted pursuant to Federal Acquisition Regulation (FAR) 15.101-2,2 to procure
a computer information system for the intensive care units of various VA medical
centers in Kentucky, Tennessee, and West Virginia. CliniComp International, Inc.
(CliniComp), an unsuccessful bidder for the solicitation, filed a post-award bid
protest complaint on March 6, 2014 seeking declaratory and injunctive relief
associated with the VA’s contract award to Picis, Inc. (Picis).

The administrative record (AR) was originally filed under seal on March 12,
2014, and supplements to the AR were filed under seal on March 21, 2014 and
April 18, 2014.3 Briefing was filed according to an expedited schedule and oral
argument was held on June 10, 2014.

As discussed below, the VA’s award decision was fundamentally flawed and
must be enjoined. Accordingly, plaintiff’s motion for judgment on the
administrative record is granted, and defendant’s motion for judgment on the
administrative record is denied.

BACKGROUND4

2
/ Unless otherwise specified, all citations in this opinion to the FAR are to the 2012
version of Title 48 of the Code of Federal Regulations.
3
/ On March 18, 2014, plaintiff filed a motion to supplement the AR with a declaration
prepared by William McDonald, Jr., CliniComp’s controller, which plaintiff attached as Exhibit
A to its complaint. The government opposes plaintiff’s motion to supplement. On March 21,
2014 and April 17, 2014, the government filed unopposed motions to supplement the AR with
several documents that had been inadvertently omitted from the AR. See AR Tabs 6, 13-15, 15a,
16-17. In orders dated March 21, 2014 and April 18, 2014, the court granted the government’s
unopposed motions to supplement but deferred ruling on plaintiff’s motion to supplement, which
the court addresses infra.
4
/ In the following section, the court sets forth its findings of fact drawn from the AR and
the parties’ submissions. See Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir.
2005) (stating that bid protest proceedings “provide for trial on a paper record, allowing fact-
finding by the trial court”).

2
I. Request for Quotations

On September 17, 2013, the VA issued RFQ No. VA249-13-Q-1015 to
procure a computer information system (CIS) for the intensive care units (ICUs) of
seven VA medical centers located within the VA’s Veteran Integrated Service
Network 9 (VISN 9), which encompasses Kentucky, Tennessee, and West
Virginia. AR Tab 1. The RFQ stated that the deadline for the submission of
quotations was September 25, 2013, and described the period of performance
under the awarded contract as beginning on September 27, 2013. Id. at 1, 5-16.

In the “Statement of Work” set forth in the RFQ, the procurement is
described as seeking “a state of the art and fully integrated system” that will
“employ advanced technological methods in the integration of healthcare data to
improve patient quality of care, reduction of medical errors, and increase in cost
savings” for the various VA medical centers within VISN 9. AR at 16. To that
end, the Statement of Work emphasized that the delivery of a “complete turnkey
project” meeting the “substantial interface requirements between the CIS, the
[Veterans Health Administration] hospital information system (Vista) and other
systems” was “a critical component of this project.” Id. “Vista” is an acronym
signifying the Veterans Health Information Systems and Technology Architecture,
which is the Veterans Health Administration’s (VHA’s) hospital information
system. Id. at 28.

With respect to the VA’s need for a “fully integrated system,” the Statement
of Work elaborated that “[t]he CIS shall enable full integration of all systems
including exchanging clinical data with the Vista systems of VISN [9].” AR at 17
(stating also that “[t]he integration with Vista provides for transfer of clinical data
between the CIS and the Vista systems of the VISN”). The exchange of clinical
data between the vendor-supplied CIS and the VA’s Vista system was to be
accomplished via “interfaces.” Id. at 16 (stating that “[q]uotes shall provide the
required interfaces as specified in their submitted timelines and as further defined
herein for a complete turnkey project”), 95 (stating that “[t]he Contractor shall
provide interfaces to solve the problem of electronic documentation, continuum of
care, advance clinical access, and clinical workflow in critical care areas,” and
describing this requirement as a “key element” of the procurement). The VA-

3
provided, or “Vista-side,” interfaces were to be furnished by Document Storage
Systems (DSS), a third-party contractor, while the successful offeror was to furnish
vendor-side interfaces capable of “exchang[ing] data bi-directionally between
Vist[a]/CPRS and CIS applications.”5 Id. at 95; see also id. at 17 (stating that
“[t]he VISN shall implement the Vista side of the interfaces under a separate
contract using the DSS DataBridge interface”), 95 (stating that “[t]he Government
will furnish the appropriate interfaces to operate on the Vist[a] systems” and “[t]he
successful Contractor will be responsible to provide the other half[] (the vendor-
side) as part of this contract”).6

In the portion of the RFQ titled “Evaluation Criteria,” the VA stated that it
would award a firm fixed price task order to the contractor representing the best
value. AR at 65. The agency’s determination of best value, and hence its award,
was to be based on the lowest priced technically acceptable quotation.7 Id. The
evaluation criteria to be utilized by the VA in assessing the technical acceptability
of proposals were as follows:

The contractor’s understanding of the VA’s requirement
for a robust, scalable, integrated solution; and its present
capacity to implement its enterprise solution in VISN 9[;]

5
/ The RFQ defined “CPRS,” or Computerized Patient Record System, as “a graphical
user interface (GUI) to display Vista patient information.” AR at 27.
6
/ The RFQ set forth, in separate attachments, the specifications for the “Vista-side”
interfaces to be furnished by DSS. AR at 135-50 (RFQ Attachments F and G); see id. at 17
(stating that the “DSS DataBridge interface specifications are at Attachments F and G”).
7
/ A lowest price technically acceptable source selection process is appropriate when best
value is expected to result from selection of the technically acceptable proposal with the lowest
evaluated price. FAR 15.101-2(a). In this source selection process, “[p]roposals are evaluated
for acceptability but [are] not ranked using the non-cost/price factors.” Id. 15.101-2(b)(3). In
other words, in a lowest price technically acceptable procurement, there is no best value tradeoff.
Id. 15.101-2(b)(2) (stating that “[t]radeoffs are not permitted”). Award is instead made to the
offeror with the lowest evaluated price whose proposal meets or exceeds the non-price
acceptability standards articulated in the solicitation. Id. 15.101-2(b)(1).

4
 The contractor’s understanding of the Government’s
Protected/Patient Health Information (PHI) and security
requirements and its capacity to implement and support
the same and its record of compliance respecting HISD,
HSPD-12, NIST, and FIPS requirements[;]

The license offered to VISN 9[;]

The warranty offered to VISN 9[;] [and]

[T]he Contractor’s identification of schedule and
performance risk[] and its concept and capacity to
mitigate risk and recover from adverse events.

Id. at 65-66. The evaluation of each proposal’s technical acceptability was to be
conducted “on a pass/fail basis,” and proposals failing to achieve a “pass rating”
with respect to each technical criterion were to be considered unacceptable and
therefore ineligible for award. Id. at 65. To achieve a “pass rating,” offerors were
required to “adequately address all technical requirements contained in the
[Statement of Work] and in the Attachments” to the RFQ. Id.

Attachment D to the RFQ – titled “System Specifications” – contained a
table of mandatory technical requirements for proposals.8 AR at 87-108; see also
id. at 27 (stating that the technical components listed in Attachment D shall be
provided by the contractor). Of particular importance to this dispute, requirement
5.7.3, which was located under a sub-category titled “[d]isplay and store
waveforms from patient monitors,” stated as follows:

Vendor shall demonstrate product will receive and
import digital images of waveforms as well as
document all wave forms produced by both the
physiological patient monitor and the peripheral
devices used in VISN 9. Wave forms shall be recorded

8
/ Attachment D also included a list of non-mandatory “Desirable Elements.” AR at
109-24.

5
 not only as data points but also as a viewable wave
form. The viewable wave forms are to be saved in
CPRS as part of the patient record.

Id. at 108 (emphasis added). It is the italicized sentence above that has engendered
the present dispute.

In addition, and of relevance to the dispute at hand, the RFQ stated that
“[t]he Government intends to evaluate offers and award a contract without
discussions with offerors,” and therefore “the offeror’s initial offer should contain
the offeror’s best terms from a price and technical standpoint.” AR at 63; see also
id. at 929 (Acquisition Plan, dated August 20, 2013, indicating that the VA did not
intend to conduct discussions and did not contemplate proposal revisions).
However, the government “reserve[d] the right to conduct discussions if later
determined by the Contracting Officer to be necessary.” Id. at 63.

II. Submission and Evaluation of Quotations

From September 18, 2013 through the close of bidding on September 25,
2013, William McDonald, Jr., CliniComp’s controller, engaged in e-mail
correspondence with Sean Hendricks, the contracting officer, regarding
CliniComp’s questions about various technical requirements set forth in the RFQ.
AR at 396-408; see also id. Tabs 2-4 (e-mail attachments containing CliniComp’s
questions and the VA’s answers). None of Mr. McDonald’s questions during this
period pertained to requirement 5.7.3.

On September 25, 2013, two offerors – CliniComp and Picis – submitted
timely quotations in response to RFQ No. VA249-13-Q-1015. AR Tabs 6-7.
CliniComp’s quoted price, which “reflect[ed] . . . a [ ] percent discount from
CliniComp’s [General Services Administration (GSA)] Schedule Pricelist,” was [ ]
for one base year and four option years. Id. at 416, 431. In contrast, Picis’s quoted
price for the same contract term was $4,651,415.30, which was consistent with
Picis’s “regular GSA prices.” Id. at 529, 791.

In response to requirement 5.7.3 in Attachment D to the RFQ, CliniComp’s
proposal stated:

6
 Yes. Waveforms from bedside devices are streamed
continuously to [CliniComp] data acquistion equipment.
This data subsequently can be saved permanently on the
CIS. If the VA wishes to redundantly export waveform
data to CPRS, a quotation could be provided. The
quotation would require mutually agreed upon
specifications.

AR at 527.26 (emphasis added). Picis’s quotation provided the
following response to requirement 5.7.3:

Waveform images and other digital images like outside
labs, consents, etc[.] can be included in the Picis
workflow through an inbound HL7 documentation
interface. This interface allows documents and document
images to be directly launched from Picis Critical Care
Manager in their originating application (.doc file in
Word, .pdf files in Adobe, etc[.]).

Id. at 590.

On September 26, 2013, the VA’s Mr. Hendricks contacted Mr. McDonald
seeking additional information regarding CliniComp’s response to requirement
5.7.3. AR at 939-40. Specifically, Mr. Hendricks inquired as to why CliniComp
failed to include in its base price the cost of saving wave form data in CPRS, and
instead offered to provide an additional quotation for that service:

In the Mandatory Requirements, Question 5.7.3,
[CliniComp’s] response says “If the VA wishes to
redundantly export waveform data to CPRS, a quotation
could be provided. The quotation would require
mutually agreed upon specifications.” VISN 9 doesn’t
understand why [CliniComp] would provide a[n]
[additional] quotation for something that is a mandatory
requirement. Shouldn’t it just be included in the base
price?

7
Id. at 939.

Later that same day, Mr. McDonald provided the following response by e-
mail:

Waveforms are charted and stored on the CliniComp[]
CIS as a part of the official patient record. If the VA
requires the patient record, including “viewable
waveforms[,]” to be sent to the CPRS, then DSS is the
only currently approved methodology to do so. DSS
does not presently support an interface to receive
“viewable waveforms” contained in the patient record. If
VISN 9 arranges for DSS to provide any interface, based
on mutually agreeable standard technical specifications,
then CliniComp[] will provide for sending the waveforms
in the patient records to DSS for transmittal to CPRS.
This interface would be made available at no additional
cost to the VISN. Alternatively, CliniComp[] could
develop an interface directly to CPRS if authorized by
the VA. This was the alter[n]ative being addressed in
CliniComp[’s] original response. This would require
mutually agreed upon specifications and a quotation for
additional costs, depending on the specifications. For
example, CliniComp[] could provide, at no charge, the
ability to export “viewable waveforms” as PDFs. Again,
this is assuming that VA approves a direct interface to
receive PDFs.

AR at 940. Mr. Hendricks responded by e-mail shortly thereafter, indicating that
the VA’s evaluation panel had reviewed Mr. McDonald’s clarifying e-mail and felt
it “ha[d] sufficient information” to assess the technical acceptability of
CliniComp’s proposal. Id. at 938.

Based upon CliniComp’s response to requirement 5.7.3 in its quotation, as
well as the additional information provided by Mr. McDonald on September 26,

8
2013, the VA’s evaluators unanimously rated CliniComp’s proposal as technically
unacceptable because CliniComp did not provide a quote for saving wave form
data in CPRS and stated that such a quote “would require mutually agreed upon
specifications.” AR at 527.26; see id. Tab 8 (technical evaluation of CliniComp’s
quotation). On September 27, 2013, Mr. Hendricks notified Mr. McDonald of the
results of the VA’s technical evaluation. Id. at 947 (stating that CliniComp’s
quotation “was rated Technically Unnacceptable because [CliniComp’s] responses
in section 5.7.3 . . . did not meet the mandatory requirements provided in section D
of the RFQ”); see also id. at 937-38. Mr. Hendricks explained that the VA “will
not consider any further quote revisions” and would award the contract to Picis
“for the aggregate price of $4,651,415.30” based upon the VA’s determination that
Picis had submitted a technically acceptable proposal with the lowest evaluated
price. Id. at 947; see also id. Tab 16 (technical evaluation of Picis’s quotation).

By e-mail to Mr. Hendricks on September 29, 2013, Mr. McDonald
requested a post-award debriefing pursuant to FAR 15.506 to determine the basis
for the VA’s rating of CliniComp’s proposal as technically unacceptable. AR at
937. On October 3, 2013, one day after the VA entered into Contract No. GS-35F-
0589X with Picis, see id. Tab 9, Mr. Hendricks responded by e-mail that
CliniComp’s quotation “fail[ed] to comply with . . . requirement [5.7.3]” because it
“offer[ed] another obstacle to address and more money and possible negotiations
that would have to take place in order for compliance to occur,” id. at 933.

III. CliniComp’s Protests

A. Protest before the VA

On October 7, 2013, CliniComp filed an agency-level protest with the VA in
which it asserted that the agency erred in rejecting CliniComp’s quotation as
technically unacceptable. AR Tab 10. Among the grounds for CliniComp’s
agency-level protest was its contention that requirement 5.7.3 “is contrary to the
nationally mandated means authorized for ICU CIS interfaces to Vista/CPRS.” Id.
at 894. CliniComp specifically challenged the portion of requirement 5.7.3 which
specified that “viewable wave forms are to be saved in CPRS as part of the patient
record.” Id. at 108; see id. at 895 (stating that “[n]o clinical data [are] actually
stored or saved in the CPRS GUI”), 904 (asserting that “[requirement] 5.7.3 is

9
problematic in that VISN 9 was . . . seeking an interface other than DSS which:
(1) did not exist[;] and (2) was not authorized for VISN 9 to use”), 906 (claiming
that requirement 5.7.3 “is seeking a direct access to Vist[a] other than the DSS
Data Bridge,” which the VA “lacked authority to require”). In support of its
challenge to requirement 5.7.3, CliniComp submitted a declaration prepared by Dr.
Douglas E. Rosendale, a board-certified general surgeon and advisor to the VHA’s
Office of Health Information, in which Dr. Rosendale opined that requirement
5.7.3 “is technically incorrect in requiring that ‘[t]he viewable wave forms are to
be saved in CPRS as part of the patient record.’” Id. at 913 (stating that “CPRS is
a user interface to Vist[a],” and that “[a]s one would expect of a GUI, no
permanent data about a patient is stored or saved directly to CPRS per se, but
rather the GUI provides the user means for viewing the patient data in Vist[a]”).

In addition to CliniComp’s challenge to the language of requirement 5.7.3,
CliniComp alleged that “the manner in which VISN 9 communicated with
CliniComp on September 26 was inadequate because CliniComp was misle[]d into
responding in a way that did not address the VISN 9 evaluator’s concerns.” AR at
904. In support of that allegation, CliniComp submitted a declaration prepared by
Mr. McDonald in which he described his correspondence with Mr. Hendricks. Id.
at 908-11.

The VA denied CliniComp’s protest on January 24, 2014. AR Tab 12. In
its written decision, the VA concluded that, as an initial matter, CliniComp’s
challenge to requirement 5.7.3 was untimely because, pursuant to FAR 33.103(e),
any objection to the terms of the RFQ had to be made “before bid opening or the
closing date for receipt of proposals.” Id. at 919 (citing FAR 33.103(e) (2013)).
The VA also found that CliniComp’s response to requirement 5.7.3, as well as Mr.
McDonald’s clarification via e-mail on September 26, 2013, “clearly took
exception to the Agency’s requirement, thereby rendering CliniComp’s
quote/proposal technically unacceptable.” Id. at 920. Furthermore, the VA
rejected CliniComp’s assertion that it was misled in exchanges with the VA,
concluding that such allegations were not substantiated. Id. Finally, the VA
rejected CliniComp’s argument that it was prejudiced by the agency’s alleged
errors. Id. In that regard, the agency found it impossible to determine if
CliniComp in fact offered the lowest price as compared to Picis because

10
CliniComp’s response to requirement 5.7.3 contemplated an additional, subsequent
quotation for saving wave form data in CPRS. Id.

B. Protest in This Court

CliniComp filed its bid protest complaint in this court on March 6, 2014. In
its seven-count complaint, CliniComp alleges that: (1) the VA’s determination that
CliniComp’s proposal was technically unacceptable was arbitrary, capricious, and
an abuse of discretion, Compl. ¶¶ 33-36 (Count I); (2) the VA violated the
Competition in Contracting Act of 1984 (CICA), 41 U.S.C. § 3301 (2012), by
creating a competitive range of one offeror, id. ¶¶ 37-41 (Count II); (3) the VA
failed to engage in meaningful discussions with CliniComp, id. ¶¶ 42-49 (Count
III); (4) the VA abused its discretion by “abruptly and prematurely terminat[ing]
discussions” with CliniComp, id. ¶¶ 50-57 (Count IV); and (5) the VA unlawfully
engaged in unequal treatment by “relaxing the requirement that wave forms are to
be saved to the CPRS GUI” when evaluating the quotation submitted by Picis, id. ¶
62; see ¶¶ 58-63 (Count V). Based on these allegations of error, CliniComp seeks
declaratory relief, id. ¶¶ 64-69 (Count VI), as well as permanent injunctive relief,
id. ¶¶ 70-75 (Count VII).9

DISCUSSION

I. Jurisdiction

This court “shall have jurisdiction to render judgment on an action by an
interested party objecting to a solicitation by a Federal agency for bids or proposals
for a proposed contract or to a proposed award or the award of a contract or any
alleged violation of statute or regulation in connection with a procurement or a
proposed procurement.” 28 U.S.C. § 1491(b)(1) (2012). This jurisdictional grant
is “without regard to whether suit is instituted before or after the contract is
9
/ CliniComp’s complaint also seeks preliminary injunctive relief, see Compl. ¶¶ 70-75,
and CliniComp filed a corresponding Motion for Preliminary Injunction on March 6, 2014. On
March 10, 2014, the court denied plaintiff’s request for preliminary injunctive relief as moot
because the government, during a telephonic status conference on March 7, 2014, agreed to
suspend contract performance until after a resolution of CliniComp’s bid protest. See Order of
March 10, 2014, at 2.

11
awarded.” Id. As a threshold jurisdictional matter, however, the plaintiff in a bid
protest must show that it has standing to bring its suit. Info. Tech. & Applications
Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003) (ITAC); Myers
Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed. Cir.
2002). The court addresses CliniComp’s standing to pursue it protest infra.

II. Standards of Review

A. Judgment on the Administrative Record

Rule 52.1(c) of the Rules of the United States Court of Federal Claims
(RCFC) provides for judgment on the administrative record. In reviewing a
motion or cross-motions under RCFC 52.1(c), the court asks whether, given all the
disputed and undisputed facts, a party has met its burden of proof based on the
evidence in the record. Bannum, Inc. v. United States, 404 F.3d 1346, 1356-57
(Fed. Cir. 2005). The court must make factual findings where necessary. Id. The
resolution of RCFC 52.1(c) cross-motions is akin to an expedited trial on the paper
record. Id.

B. Bid Protest Review

The court first examines, as a threshold jurisdictional matter, whether the
plaintiff in a bid protest has standing to bring the suit. ITAC, 316 F.3d at 1319.
Bid protest standing is limited to those plaintiffs who are actual or prospective
bidders and whose direct economic interest would be affected by the award of the
contract or by the failure to award the contract. Orion Tech., Inc. v. United States,
704 F.3d 1344, 1348 (Fed. Cir. 2013). To establish a direct economic interest in a
post-award bid protest, an actual or prospective bidder must show that there was a
substantial chance it would have received the contract award but for the alleged
errors in the procurement process. Id. (citing Rex Serv. Corp. v. United States, 448
F.3d 1305, 1308 (Fed. Cir. 2006)); see also ITAC, 316 F.3d at 1319.

Upon determining that a plaintiff has standing to sue, the court next
considers the merits of the bid protest. A bid protest proceeds in two steps, with
the trial court first determining whether the government acted without a rational
basis or contrary to law. Bannum, 404 F.3d at 1351. If the award decision fails

12
review, the court then determines as a factual matter whether the plaintiff was
prejudiced by the arbitrary or unlawful conduct. Id.

The standard of review for a bid protest brought pursuant to section 1491(b)
is whether the agency action was arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law (the APA standard). 28 U.S.C. § 1491(b)(4)
(incorporating the APA standard set forth in 5 U.S.C. § 706 (2012)); Banknote
Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350-51 (Fed. Cir. 2004)
(citing Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057-58
(Fed. Cir. 2000)). Under the APA standard, a procurement decision may be set
aside if it lacks a rational basis or if the agency’s decision-making involved a clear
and prejudicial violation of statute or regulation. Banknote, 365 F.3d at 1351. “A
court evaluating a challenge on the first ground must determine ‘whether the
contracting agency provided a coherent and reasonable explanation of its exercise
of discretion.’” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381
(Fed. Cir. 2009) (quoting Impresa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d 1324, 1333 (Fed. Cir. 2001)).

The APA standard is “highly deferential.” Advanced Data Concepts, 216
F.3d at 1058. Under this standard, de minimis errors in the procurement process do
not justify relief. Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 1000 (Fed.
Cir. 1996) (citing Andersen Consulting v. United States, 959 F.2d 929, 932-33, 935
(Fed. Cir. 1992)). A bid protest plaintiff bears the burden of proving that a
significant error marred the procurement in question. Id.

A protester’s burden is “greater in negotiated procurement, as here, than in
other types of bid protests because ‘the contracting officer is entrusted with a
relatively high degree of discretion.’” Glenn Def. Marine (ASIA), PTE Ltd. v.
United States, 720 F.3d 901, 907-08 (Fed. Cir. 2013) (quoting Galen Med. Assocs.,
Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004)); see also Burroughs
Corp. v. United States, 617 F.2d 590, 598 (Ct. Cl. 1980) (stating that negotiated
procurements give a “breadth of discretion” to the contracting officer, and impose
a heavier burden of proof on a protester (citing Keco Indus., Inc. v. United States,
492 F.2d 1200, 1204 (Ct. Cl. 1974))). Moreover, where, as here, a protester
challenges the contracting officer’s determination regarding the technical
acceptability of proposals, the protester bears an “‘unusually heavy burden of proof

13
in showing that the determination . . . was arbitrary and capricious.’” Westech
Int’l, Inc. v. United States, 79 Fed. Cl. 272, 286 (2007) (quoting Cont’l Bus.
Enters. v. United States, 452 F.2d 1016, 1021 (Ct. Cl. 1971)); see Omega World
Travel, Inc. v. United States, 54 Fed. Cl. 570, 578 (2002) (“It is well settled that
contracting officers are given broad discretion with respect to evaluation of
technical proposals.” (citing E.W. Bliss Co. v. United States, 77 F.3d 445, 449
(Fed. Cir. 1996))).

“‘If the court finds a reasonable basis for the agency’s action, the court
should stay its hand even though it might, as an original proposition, have reached
a different conclusion as to the proper administration and application of the
procurement regulations.’” Honeywell, Inc. v. United States, 870 F.2d 644, 648
(Fed. Cir. 1989) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301
(D.C. Cir. 1971)). If, on the other hand, the protester has shown a significant error
in the procurement process, the court must determine as a factual matter whether
that error prejudiced the protester, because both error and prejudice are required for
the protester to prevail. Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.
Cir. 1996) (citing Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir.
1996) (Data General)).

A bid protest plaintiff bears the burden of establishing prejudice. Bannum,
404 F.3d at 1358. To meets its burden, a protester must show that there was a
substantial chance it would have received the contract but for the agency’s errors.
Id.; see also Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367
(Fed. Cir. 1999). Thus, in this bid protest, the substantial chance standard must be
applied twice: first, to determine CliniComp’s standing to bring its suit; and,
second, to determine whether CliniComp suffered prejudice as a result of any
adjudged errors in the procurement process. See, e.g., Linc Gov’t Servs., LLC v.
United States, 96 Fed. Cl. 672, 695-96 (2010) (differentiating between
“allegational prejudice” and “APA prejudice,” both of which apply the substantial
chance test).

III. Standing

Although the government has not directly challenged CliniComp’s standing,
standing is a threshold inquiry that the court must address before considering the

14
merits of CliniComp’s protest. ITAC, 316 F.3d at 1319. As previously stated, to
establish standing, CliniComp must show that it is an actual or prospective bidder
whose direct economic interest is affected by the award of the contract – i.e., that
CliniComp is an interested party prejudiced by the award to Picis. Id. To establish
prejudice, and therefore standing, CliniComp must show that there was a
substantial chance it would have received the contract award but for the alleged
errors in the procurement process. Orion, 704 F.3d at 1348; ITAC, 316 F.3d at
1319.

CliniComp does not address the issues of standing or prejudice in its
opening brief. Nevertheless, in its reply brief, plaintiff asserts that “[s]ince
[CliniComp] submitted the lowest price proposal, there was a substantial chance
that it would have won the contract award but for the procurement errors of the
agency.” Pl.’s Reply at 22.

The government, while not directly challenging CliniComp’s standing to
bring its protest, lodges an implicit challenge to CliniComp’s standing by alluding
to the VA’s conclusion, in its denial of CliniComp’s agency-level protest, that it
was “impossible to determine if CliniComp in fact offered the lowest price” as
compared to Picis because CliniComp’s response to requirement 5.7.3
contemplated an additional, subsequent quotation for saving wave form data in
CPRS. See Def.’s Mot. at 23 (citing AR at 920). Defendant’s, as well as the
agency’s, analysis in that regard manifests a misunderstanding of a protester’s
burden to establish prejudice. It is true that to satisfy the substantial chance test, a
protester “must demonstrate more than a ‘mere possibility that [it] would have
received the contract but for the [alleged] error [in the procurement process].’”
Asia Pac. Airlines v. United States, 68 Fed. Cl. 8, 18 (2005) (quoting Data
General, 78 F.3d at 1562), appeals dismissed per stipulation, 175 F. App’x 346
(Fed. Cir. 2006), 171 F. App’x 837 (Fed. Cir. 2006). However, “a protester is not
required to show that but for the alleged error, [it] would have been awarded the
contract.” Data General, 78 F.3d at 1562; see Dynacs Eng’g Co. v. United States,
48 Fed. Cl. 614, 619 (2001) (rejecting a “narrow” interpretation of the substantial
chance test that would “require[] a protestor to show substantial certainty that it
would have received the contract but for the error” (citing Alfa Laval, 175 F.3d at
1368)).

15
 Here, the allegations contained in CliniComp’s complaint, when accepted as
true, demonstrate more than a “mere possibility” that CliniComp would have been
awarded the disputed contract but for the alleged errors in the procurement process.
Specifically, CliniComp alleges that Picis, the only other offeror, submitted a
quotation offering a price that exceeded CliniComp’s by more than [ ]. Compl. ¶
8. That allegation is supported by the record. See AR at 431, 791. CliniComp
therefore has demonstrated a substantial chance that, but for the alleged flaws in
the procurement at issue, which resulted in CliniComp’s quotation being rejected
as technically unacceptable, CliniComp would have received award as the lowest
price technically acceptable offeror.

IV. Analysis of the Merits

Plaintiff’s seven-count complaint distills down to three alleged
improprieties: (1) that the VA’s evaluation of the technical elements of
CliniComp’s and Picis’s quotations was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law (Counts I and V); (2) that the
VA’s rejection of CliniComp’s quotation as technically unacceptable improperly
resulted in a “competitive range” consisting of one offeror (Count II); and (3) that
the VA failed to engage in adequate “discussions” with CliniComp following the
deadline for the submission of quotations and before award (Counts III and IV).
The court will address each alleged impropriety in turn.

A. Plaintiff’s Challenges to the VA’s Technical Evaluation of
Proposals

Plaintiff’s initial allegation of error challenges the VA’s technical evaluation
of proposals submitted by CliniComp and Picis. See Compl. ¶¶ 33-36, 58-63; Pl.’s
Mot. at 14-23, 31-34, 37; Pl.’s Reply at 6-16, 22, 29. Plaintiff’s arguments in this
regard are two-fold. First, plaintiff asserts that the VA’s determination that
CliniComp’s quotation took exception to requirement 5.7.3 was arbitrary,
capricious, and an abuse of discretion because that determination “rest[ed] on” the
agency’s allegedly “flaw[ed]” interpretation of the term CPRS in requirement
5.7.3. Pl.’s Mot. at 15; see also id. at 16-23; Pl.’s Reply at 8-12. Second, plaintiff
contends that the agency engaged in disparate treatment by rating Picis’s quotation
as technically acceptable despite the fact that Picis, in its quotation, did not commit

16
to saving viewable wave forms “in CPRS as part of the patient record.” Pl.’s
Mot. at 31-34; Pl.’s Reply at 13-14.

1. Untimely Challenge to the Terms of the Solicitation

Plaintiff’s first challenge to the VA’s technical evaluation is its argument
that the evaluation of CliniComp’s quotation was based upon the agency’s
improper interpretation of the term CPRS in requirement 5.7.3. See Pl.’s Mot. at
15-17; Pl.’s Reply at 8-12. As previously noted, requirement 5.7.3 stated that
“viewable wave forms are to be saved in CPRS as part of the patient record,” AR
at 108, and the RFQ elsewhere defined the term CPRS as “a graphical user
interface (GUI) to display Vista patient information,” id. at 27.

In CliniComp’s view, it “is simply impossible” for wave form data to be
saved in a GUI. Pl.’s Mot. at 23. Thus, plaintiff contends, “although supported by
the solicitation’s definition of CPRS, the [VA’s] literal interpretation [of CPRS to
mean a GUI] is nonsensical.” Id.; see also id. at 15 (asserting that “it is
nonsensical that data can be saved to a GUI”). The only reasonable meaning of the
term CPRS, according to plaintiff, is “a system of patient records that is capable of
displaying ‘Vista patient information.’” Pl.’s Mot. at 17; Pl.’s Reply at 8-12. In
the alternative, CliniComp suggests that the RFQ is latently ambiguous as to the
meaning of CPRS.10 See Pl.’s Reply at 12-13.

The government argues that plaintiff’s challenge to the VA’s alleged
understanding of the term CPRS constitutes an untimely challenge to the terms of
the RFQ and is thus waived under Blue & Gold Fleet, LP v. United States, 492
F.3d 1308 (Fed. Cir. 2007). See Def.’s Mot. at 9-13; Def.’s Reply at 3-7. In that
regard, defendant contends that plaintiff’s challenge is not directed at the
government’s interpretation of the term CPRS but, rather, to the solicitation itself,
which defines CPRS to mean a GUI. See Def.’s Mot. at 9-10. Because CliniComp

10
/ At oral argument, plaintiff “concede[d]” ambiguity in the term CPRS but contended
that such ambiguity was latent, not patent. Tr. at 19. CliniComp’s concession in that regard
appears to be at odds with its assertion, oft-repeated in its briefs and at oral argument, that its
interpretation of CPRS is the only reasonable one. See Pl.’s Mot. at 17-23; Pl.’s Reply at 8-12;
Tr. at 14, 19-20.

17
did not object to the solicitation’s definition of CPRS before submitting its
quotation, the government argues that CliniComp has waived its right to do so
before this court. See id. at 10-13.

As set forth below, the court agrees with the government that plaintiff’s
objection to the VA’s alleged interpretation of the term CPRS in requirement 5.7.3
amounts to an allegation of patent error or ambiguity in the RFQ itself. Because
CliniComp failed to raise this objection with the VA before the close of the
bidding process, it has waived its right to do so in the instant protest. See Blue &
Gold Fleet, 492 F.3d at 1314-15.

In Blue & Gold Fleet, the United States Court of Appeals for the Federal
Circuit held that “a party who has the opportunity to object to the terms of a
government solicitation containing a patent error and fails to do so prior to the
close of the bidding process waives its ability to raise the same objection
afterwards in a § 1491(b) action in the Court of Federal Claims.” 492 F.3d at
1315. Citing the desire to prevent contractors “from taking advantage of the
government and other bidders” and to “avoid[] costly after-the-fact litigation,” the
Federal Circuit in Blue & Gold Fleet stated that “‘[v]endors cannot sit on their
rights to challenge what they believe is an unfair solicitation, roll the dice and see
if they receive award.’” Id. at 1314 (quoting Argencord Mach. & Equip., Inc. v.
United States, 68 Fed. Cl. 167, 175 n.14 (2005)); see also Weeks Marine, Inc. v.
United States, 575 F.3d 1352, 1362-63 (Fed. Cir. 2009). The Federal Circuit
grounded this waiver rule in the statutory mandate for reviewing courts to “‘give
due regard to . . . the need for expeditious resolution’” of procurement disputes
pursued under 28 U.S.C. § 1491(b). Blue & Gold Fleet, 492 F.3d at 1315 (quoting
28 U.S.C. § 1491(b)(3)). The rule in Blue and Gold Fleet thus bars a protester
from raising objections to patent errors or ambiguities in the terms of a solicitation
after the closing of bidding if such errors or ambiguities were apparent on the face
of the solicitation. Our court has consistently applied this equitable bar as part of
the court’s bid protest review. See, e.g., Eco Tour Adventures, Inc. v. United
States, 114 Fed. Cl. 6, 26 (2013); Linc, 96 Fed. Cl. at 697-98 (citing cases).

As an initial matter, the court finds that plaintiff’s objections to the VA’s
alleged interpretation of the term CPRS constitute allegations of patent error or
ambiguity in the terms of the solicitation itself. Interpretation of a government

18
solicitation, as with a contract, begins with the solicitation’s plain language. See,
e.g., Banknote, 365 F.3d at 1353 (citing Coast Fed. Bank, FSB v. United States,
323 F.3d 1035, 1038 (Fed. Cir. 2003) (Coast Federal Bank)). “If the provisions of
the solicitation are clear and unambiguous, they must be given their plain and
ordinary meaning; we may not resort to extrinsic evidence to interpret them.” Id.
(citing Coast Federal Bank, 323 F.3d at 1038). In discerning a solicitation’s plain
meaning, the court “must consider the solicitation as a whole, interpreting it in a
manner that harmonizes and gives reasonable meaning to all of its provisions.” Id.
(citing Coast Federal Bank, 323 F.3d at 1038). An interpretation that gives a
reasonable meaning to all provisions of a solicitation is therefore to be preferred
over one that leaves a portion of the solicitation meaningless or superfluous. NVT
Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004) (NVT
Technologies) (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir.
1991)).

Here, the solicitation clearly defined the Computerized Patient Record
System, or CPRS, as “a graphical user interface (GUI) to display Vista patient
information,” AR at 27, and stated in no uncertain terms that “viewable wave
forms are to be saved in CPRS as part of the patient record,” id. at 108. Contrary
to plaintiff’s assertions, the court finds this language to be reasonably susceptible
to only one interpretation: that the VA required offerors to demonstrate their
ability to save viewable wave forms in a GUI, namely CPRS.

In attempting to demonstrate the reasonableness of its interpretation of the
term CPRS, plaintiff ignores the solicitation’s plain language and instead relies
upon a strained reading of other portions of the RFQ which allegedly establish that
CPRS refers only to a “system of patient records,” to the exclusion of a GUI. Pl.’s
Mot. at 18 (stating that CPRS is “a generic term that means a system of patient
records, rather than a GUI”), 37; Pl.’s Reply at 10-11. For instance, CliniComp
cites several portions of the solicitation where the term CPRS is referenced
together with the term “Vista,” and posits that the juxtaposition of these terms (i.e.,
“Vista/CPRS”) establishes that CPRS must refer only to a “system of patient
records” and cannot also mean a GUI. Pl.’s Mot. at 18-19 (citing AR at 88-89,
95); see also id. at 21 (asserting that the solicitation “acknowledges CPRS and
Vista being intertwined” (citing AR at 28)). Yet plaintiff fails to explain how the

19
portions of the RFQ it cites support its argument that CPRS means something other
than what the solicitation says it means.

Plaintiff’s argument simply ignores the well-settled legal principle that
interpretations which give effect to all of a solicitation’s provisions are preferred
over interpretations which render a portion of the solicitation meaningless. See
NVT Technologies, 370 F.3d at 1159; Banknote, 365 F.3d at 1353. For the court to
accept plaintiff’s interpretation of the term CPRS would be to ignore, and render a
nullity, the clear language of the RFQ defining CPRS as “a graphical user interface
(GUI) to display Vista patient information.” AR at 27. Such a result would violate
well-settled legal principles governing the interpretation of solicitations.

Equally unpersuasive is plaintiff’s reliance upon extrinsic evidence to
support its understanding of the term CPRS. Specifically, plaintiff asserts that Dr.
Rosendale’s declaration submitted in support of CliniComp’s agency-level protest,
as well as Internet articles from Wikipedia and PC Magazine, establish that the
solicitation’s definition of CPRS is “nonsensical.” Pl.’s Mot. at 15-16. In
addition, plaintiff cites to various portions of Picis’s quotation to demonstrate that
the term CPRS has a “trade usage that means a system of patient medical records.”
Id. at 20-21 (citing AR at 533, 538, 689). Finally, plaintiff relies upon a
declaration prepared by Mr. McDonald for the purposes of this lawsuit, which is
attached to plaintiff’s complaint, in which Mr. McDonald describes CliniComp’s
contracts “with 7 different VISNs” for the provision of “ICU CIS clinical
documentation system[s].” Compl. Ex. A ¶ 28; see Pl.’s Mot. at 22. Plaintiff
asserts that Mr. McDonald’s declaration demonstrates that “other VISNs have
awarded contracts to CliniComp for ICU CISs where wave forms are saved to a
system of records rather than a GUI.” Pl.’s Mot. at 22.

The court may not consider any of the aforementioned extrinsic evidence
because, as explained above, the RFQ unambiguously defines the term CPRS. See,
e.g., Banknote, 365 F.3d at 1353; Lab. Corp. of Am. v. United States, 108 Fed. Cl.
549, 566 (2012) (“It is, of course, axiomatic that extrinsic evidence may not be
used to import ambiguity into unambiguous contract language.” (citing, e.g., R.B.
Wright Constr. Co. v. United States, 919 F.2d 1569, 1572 (Fed. Cir. 1990), and
Beta Sys., Inc. v. United States, 838 F.2d 1179, 1183 (Fed. Cir. 1988))). For this
reason, the court does not rely upon Mr. McDonald’s statements pertaining to

20
CliniComp’s alleged contracts with other VISNs. See Compl. Ex. A ¶¶ 26-29.
Nor does the court address the parties’ disputes as to the appropriateness of
considering Dr. Rosendale’s declaration filed in CliniComp’s agency-level protest,
see Def.’s Mot. at 12 n.6, or plaintiff’s proffered extra-record evidence gleaned
from the Internet, see id. at 12.

Moreover, plaintiff’s proffered extrinsic evidence does not support
plaintiff’s position, even if the court could properly consider it. Although it is
well-established that evidence of trade practice and custom “‘may be useful in
interpreting a contract term having an accepted industry meaning different from its
ordinary meaning,’” TEG-Paradigm Envtl., Inc. v. United States, 465 F.3d 1329,
1338 (Fed. Cir. 2006) (quoting Hunt Constr. Grp., Inc. v. United States, 281 F.3d
1369, 1373 (Fed. Cir. 2002)), none of the extrinsic evidence offered by plaintiff
demonstrates that the term CPRS has an accepted industry meaning different than
the definition of CPRS set forth in the solicitation. Most notably, Dr. Rosendale’s
declaration plainly contradicts plaintiff’s view, and supports the solicitation’s
definition of CPRS, inasmuch as Dr. Rosendale opined that “CPRS is a GUI on
Vist[a].”11 AR at 913.

Additionally, the Internet sources cited by plaintiff contain no language
stating that it is impossible to save data, including viewable wave forms, in a GUI.
Furthermore, the cited portions of Picis’s quotation merely refer to the terms Vista
and CPRS together (i.e., “Vista/CPRS”), see AR at 533, 538, 689, and plaintiff
offers no explanation as to how the juxtaposition of those terms demonstrates
equivalency as to their meaning. Finally, Mr. McDonald’s declaration filed in this
litigation says nothing about the specific technical components of CliniComp’s
alleged contracts with other VISNs, and thus provides no support for plaintiff’s
assertion that “other VISNs have awarded contracts to CliniComp for ICU CISs
where wave forms are saved to a system of records rather than a GUI.” Pl.’s Mot.
at 22; see Compl. Ex. A ¶¶ 26-29.
11
/ At oral argument, plaintiff acknowledged that Dr. Rosendale “defines CPRS as a user
interface to Vista,” Tr. at 12, but argued that regardless of whether CPRS is properly defined as a
GUI, “you can’t save to it,” id. at 13. It is worth noting that CliniComp made the same argument
in its agency-level protest. See AR at 895 (describing CPRS as a “graphical user interface (GUI)
to display Vista patient information” and asserting that “[n]o clinical data [are] actually stored or
saved in the CPRS GUI”).

21
 In sum, because plaintiff’s proffered interpretation of CPRS is contrary to
the unambiguous language of the solicitation, plaintiff’s arguments concerning the
meaning of that term amount to allegations of patent error in the solicitation itself.
Any doubt as to the nature of plaintiff’s claim is resolved by reference to plaintiff’s
reply brief, in which plaintiff asserts unequivocally that requirement 5.7.3 was
“defect[ive]” because it required offerors to demonstrate their ability to save
viewable wave forms in a GUI. See Pl.’s Reply at 7, 13.

Nonetheless, even if the court were to perceive an ambiguity within the
solicitation’s terms, any such ambiguity would be patent, rather than latent. A
patent ambiguity in a solicitation “is one that is ‘obvious, gross, [or] glaring.’”
NVT Technologies, 370 F.3d at 1162 (quoting H & M Moving, Inc. v. United
States, 499 F.2d 660, 671 (Ct. Cl. 1974)); see also Metric Constructors, Inc. v.
Nat’l Aeronautics & Space Admin., 169 F.3d 747, 751 (Fed. Cir. 1999) (stating that
“[a]n ambiguity is patent if ‘so glaring as to raise a duty to inquire’” (quoting
Newsom v. United States, 676 F.2d 647, 650 (Ct. Cl. 1982))). Such 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.” Stratos Mobile Networks
USA, LLC v. United States, 213 F.3d 1375, 1381 (Fed. Cir. 2000). When a
solicitation contains a patent ambiguity, the offeror has “‘a duty to seek
clarification from the government, and its failure to do so precludes acceptance of
its interpretation’” in a subsequent court action. Blue & Gold Fleet, 492 F.3d at
1313 (quoting Stratos Mobile Networks, 213 F.3d at 1381).

Here, the provisions of the solicitation upon which plaintiff relies in support
of its interpretation of CPRS were clearly apparent to CliniComp before it
submitted its quotation. As the government correctly notes, CliniComp submitted
inquiries regarding other technical requirements before the September 25, 2013
deadline for the submission of quotations, thus demonstrating that CliniComp had
ample time to discern and object to any ambiguity in the RFQ before that date. AR
Tabs 2-5; see Def.’s Mot. at 11. CliniComp therefore had a duty to seek
clarification regarding any such ambiguity prior to the close of bidding. See Blue
& Gold Fleet, 492 F.3d at 1313 (citing Stratos Mobile Networks, 213 F.3d at
1381).

22
 Plaintiff asserts, as an alternative argument, that it did file a timely objection
to the RFQ’s definition of CPRS by “calling the defect to the VA’s attention in
[CliniComp’s] proposal.” Pl.’s Reply at 7; see also id. at 13 (stating that
CliniComp “complied with its duty to inquire” because it “brought the defect to the
attention of VISN 9”). Plaintiff contends that it was reasonable for it to wait until
submitting its quotation before objecting to the terms of the RFQ because of the
short time frame for the submission of quotations and because CliniComp “was
aware that the VA would be unreceptive to a request for clarification because the
VA was rushing to award the contract before the end of the fiscal year.” Id. at 7
(citing Compl. Ex. A, and AR at 929); see also Tr. at 17-19. In response,
defendant contends that CliniComp was required to object to any error or
ambiguity in the RFQ before submitting its quotation on September 25, 2013, the
closing date for receipt of proposals, and that CliniComp’s failure in that regard is
fatal to its challenge to the solicitation’s definition of CPRS. See Def.’s Reply at
1-2, 6 & n.2; Tr. at 26-27.

The court agrees with defendant that CliniComp’s response to requirement
5.7.3 in its quotation did not constitute a timely objection under Blue & Gold Fleet.
As noted supra, the Federal Circuit in Blue & Gold Fleet held that a protester must
raise an objection to a solicitation containing a patent error or ambiguity “prior to
the close of the bidding process” before raising the same objection subsequently in
the Court of Federal Claims. 492 F.3d at 1315. Although, as far as the court is
able to discern, the Federal Circuit has not expressly addressed the timeliness of
objections contained within an offeror’s proposal itself, this court’s precedent
appears to support the view that such objections are untimely.12 See Linc, 96 Fed.
Cl. at 713 (holding that plaintiff waived its challenges to the Army’s price
evaluation, which amounted to allegations of patent error or ambiguity in the
12
/ Indeed, this court’s opinion in Blue & Gold Fleet, which was affirmed by the Federal
Circuit, found that the protester had missed its chance to protest the terms of the solicitation in
that case because it had failed to challenge such terms before submitting its proposal. See Blue
& Gold Fleet, 492 F.3d at 1312 (noting that “[t]he Court of Federal Claims found that Blue &
Gold ‘missed its chance to protest’ based on the Service Contract Act because Blue & Gold (1)
was attempting to challenge the terms of the solicitation, rather than the evaluation process, and
(2) did not raise the challenge prior to the submission of the proposals” (quoting Blue & Gold
Fleet, LP v. United States, 70 Fed. Cl. 487, 513-14 (2006))).

23
solicitation, by “fail[ing] to raise these objections with the Army prior to
submitting its proposal”) (citations omitted); Allied Materials & Equip. Co. v.
United States, 81 Fed. Cl. 448, 459 (2008) (stating that Blue & Gold Fleet “has
been consistently interpreted as standing for the proposition that ‘[t]he proper time
to challenge the provisions of a prospectus is before bids are required to be
submitted’” (quoting Frazier v. United States, 79 Fed. Cl. 148, 177 (2007)));
Benchmade Knife Co. v. United States, 79 Fed. Cl. 731, 733 (2007) (holding that
plaintiff’s “small business set-aside and bundling allegations are untimely, and
should have been raised before proposals were submitted”) (citation omitted);
Masai Techs. Corp. v. United States, 79 Fed. Cl. 433, 444 (2007) (“To the extent
[the protester] believed that the citizenship requirement [in the solicitation] was too
stringent or otherwise improper, [the protester] should have raised its objection
with the Army prior to submitting its proposal.”) (citation omitted).

Moreover, even if CliniComp were correct that its quotation could serve as a
timely challenge to the terms of the RFQ for purposes of satisfying the Blue &
Gold Fleet waiver rule, nothing in CliniComp’s quotation could reasonably be
construed as asserting the existence of error or ambiguity with respect to the
meaning of the term CPRS. CliniComp stated in its response to requirement 5.7.3
that wave form data “can be saved permanently on the CIS” but that an additional,
subsequent quotation would be required “[i]f the VA wishes to redundantly export
waveform data to CPRS.” AR at 527.26. Conspicuously absent from CliniComp’s
response was any indication that CliniComp disagreed with or was confused by the
RFQ’s requirement that “wave forms are to be saved in CPRS as part of the patient
record.” Id. at 108. Rather than object to the requirement itself, CliniComp stated
that its compliance with the requirement would necessitate an additional quotation.

Thus, CliniComp’s assertion that its quotation served as a timely objection
to the terms of the RFQ is without merit. Having failed to object to the terms of
the RFQ in a timely manner, CliniComp has waived its right to do so before this
court. See Blue & Gold Fleet, 492 F.3d at 1313.

2. The VA Engaged in Unequal Treatment in Rating Picis’s
Quotation as Technically Acceptable

24
 Plaintiff’s remaining challenge to the VA’s technical evaluation is that the
agency unlawfully engaged in disparate treatment by “relaxing the requirement
that wave forms are to be saved to the CPRS GUI” when evaluating the quotation
submitted by Picis. Compl. ¶ 62; see id. ¶¶ 58-63 (Count V); Pl.’s Mot. at 31-34;
Pl.’s Reply at 13-14. Plaintiff contends that the VA, by evaluating quotations
unevenly, violated its duty to treat all offerors fairly and equally and therefore
acted irrationally and contrary to law. See Pl.’s Mot at 31-34 (citing Hunt Bldg.
Co., Ltd. v. United States, 61 Fed. Cl. 243, 274 (2004) (Hunt Building)); Pl.’s
Reply at 13-14 (citing L-3 Commc’ns EOTech, Inc. v. United States, 83 Fed. Cl.
643, 651-53 (2008) (L-3 Communications)). This allegation, unlike CliniComp’s
challenge to the VA’s alleged interpretation of the term CPRS, is properly
characterized as a challenge to the VA’s evaluation of proposals rather than to the
terms of the RFQ itself, and therefore is not barred by Blue & Gold Fleet.

As previously noted, CliniComp stated in its response to requirement 5.7.3
that wave form data “can be saved permanently on the CIS” but that an additional,
subsequent quotation would be required “[i]f the VA wishes to redundantly export
waveform data to CPRS.” AR at 527.26. In contrast, Picis stated in response to
the same requirement that

[w]aveform images and other digital images like outside
labs, consents, etc[.] can be included in the Picis
workflow through an inbound HL7 documentation
interface. This interface allows documents and document
images to be directly launched from Picis Critical Care
Manager in their originating application (.doc file in
Word, .pdf files in Adobe, etc[.]).

Id. at 590.

CliniComp argues that Picis neither stated its intention, nor demonstrated its
ability, to comply with requirement 5.7.3 because Picis did not expressly commit
to saving wave form data in CPRS. See Pl.’s Mot. at 32-34; Pl.’s Reply at 14. In
view of this alleged deficiency in Picis’s quotation, plaintiff contends that the
agency unlawfully engaged in disparate treatment by awarding the disputed
contract to Picis while rejecting CliniComp’s quotation as technically
unacceptable.

25
 The government disagrees, arguing that there is no evidence in the record of
any unequal treatment of CliniComp’s and Picis’s quotations vis-à-vis requirement
5.7.3. See Def.’s Mot. at 15 n.7, 16. Defendant asserts that CliniComp’s and
Picis’s quotations were fundamentally distinct inasmuch as “CliniComp’s
proposal, and not Picis’s, states that it would have to submit an additional
quotation to satisfy a mandatory requirement.”13 Id. at 16.

As this court and the Government Accountability Office (GAO) have
repeatedly held, an “agency’s failure to follow the terms of its own Solicitation and
selection of an offeror based upon different requirements than those imposed upon
the only other offeror are quintessential examples of conduct which lacks a rational
basis.” Hunt Building, 61 Fed. Cl. at 273 (citation omitted); CW Gov’t Travel, Inc.
v. United States, 110 Fed. Cl. 462, 490 (2013) (“It is well-established that a
‘contracting agency must treat all offerors equally, evaluating proposals
evenhandedly against common requirements and evaluation criteria.’” (quoting
Banknote Corp. of Am., Inc. v. United States, 56 Fed. Cl. 377, 383 (2003))); L-3
Communications, 83 Fed. Cl. at 653 (“Waiver of a mandatory requirement of the
solicitation for the benefit of only one offeror invalidates a procurement decision.”
(citing Alfa Laval, 175 F.3d at 1367-68, and Beta Analytics Int’l, Inc. v. United
States, 44 Fed. Cl. 131, 138 (1999))); Sperry Marine, Inc., B-227106, B-227106.2,
87-2 CPD ¶ 241, 1987 WL 102805, at *6 (Comp. Gen. Sept. 14, 1987) (sustaining
protest because the Navy relaxed two mandatory performance requirements for one
offeror only). Such uneven treatment “goes against the standard of equality and
fair-play that is a necessary underpinning of the federal government’s procurement
process and amounts to an abuse of the agency’s discretion.” PGBA, LLC v.
United States, 60 Fed. Cl. 196, 207 (citations omitted), aff’d, 389 F.3d 1219 (Fed.
Cir. 2004); see also 41 U.S.C. § 3301(a) (requiring “full and open competition
through the use of competitive procedures”); TLT Constr. Corp. v. United States,
50 Fed. Cl. 212, 216 (2001) (“A fundamental principle of government procurement

13
/ In its reply brief, plaintiff erroneously suggests that the government failed to contest
plaintiff’s allegations of unequal treatment and therefore “conceded” unequal treatment. Pl.’s
Reply at 29. To the contrary, as demonstrated by the above-cited portions of defendant’s
opening brief, the government did respond to plaintiff’s allegations and arguments concerning
unequal treatment.

26
is that [the agency must] treat all offerors equally and consistently apply the
evaluation factors listed in the solicitation.”) (citation omitted).

The record of this procurement supports plaintiff’s assertion that the VA
held CliniComp’s quotation to different, and more exacting, technical standards
than Picis’s quotation. The RFQ at issue in this case required offerors to
“adequately address all technical requirements contained in the [Statement of
Work] and in the Attachments provided.” AR at 65. Requirement 5.7.3 stated that
“viewable wave forms are to be saved in CPRS as part of the patient record.” Id. at
108. Picis responded to that requirement by stating that wave forms “can be
included in the Picis workflow through an inbound HL7 documentation interface”
which would allow “documents and document images to be directly launched from
Picis Critical Care Manager in their originating application.” Id. at 590. Picis’s
response did not even mention CPRS, let alone commit to saving viewable wave
forms in CPRS. Thus, Picis’s response, on its face, does not appear to satisfy
requirement 5.7.3.

When pressed at oral argument to explain how Picis committed to saving
viewable wave forms “in CPRS as part of the patient record,” the government
referred to the portion of Picis’s response stating that “documents and document
images” could be “directly launched from Picis Critical Care Manager in their
originating application” using an “inbound HL7 documentation interface.” AR at
590; see Tr. at 30, 33. The government surmised that “launch[ing]” “documents
and document images” “from Picis Critical Care Manager” using an “inbound HL7
documentation interface” is equivalent to “sav[ing]” viewable wave forms “in
CPRS as part of the patient record.” Tr. at 33, 40 (asserting that “displayed and
saved are the same thing”). Defendant also referred the court to two diagrams in
Picis’s quotation which allegedly demonstrate that Picis proposed to save viewable
wave forms in CPRS. Id. at 33-34 (citing AR at 689-90).

The government’s convoluted attempt to demonstrate that Picis committed
to saving viewable wave forms “in CPRS” is simply not borne out by the record.
As an initial matter, according to the terms of Picis’s quotation, an “inbound HL7
documentation interface” can only refer to an interface to Picis – not to Vista or
CPRS. In a section of its quotation titled “Picis Statement of Implementation
Services,” Picis described the interfaces it offered to provide as part of its
quotation. AR at 675. With respect to each of the “inbound” interfaces listed

27
in Picis’s quotation, Picis – not Vista or CPRS – is described as the “Receiving
System.” Id. Thus, when examined in relation to this other portion of Picis’s
proposal, defendant’s assertion that Picis committed to saving viewable wave
forms in CPRS using an “inbound HL7 documentation interface” makes no sense.

Nor is the court persuaded by the government’s reliance upon certain
diagrams contained in Picis’s quotation, neither of which indicate that Picis
proposed to save viewable wave forms in CPRS. See AR at 689-90. Indeed, one
of those diagrams appears to contradict defendant’s position inasmuch as it depicts
information as flowing from “Vist[a]/CPRS” to the “Picis Workstation.” Id. at
690.

In sum, defendant has provided no record support for the VA’s
conclusion that Picis’s quotation satisfied the requirement to save viewable
wave forms in CPRS. In this context, the court considers the VA’s technical
evaluation of Picis’s quotation, and the consequent award to Picis, to constitute a
relaxation, solely for the benefit of one offeror, of the requirement that “viewable
wave forms are to be saved in CPRS as part of the patient record.” AR at 108.
Such unequal treatment is fundamentally arbitrary and capricious, and violates
the full and open competition mandated by CICA in 41 U.S.C. § 3301(a).14

14
/ The court notes, parenthetically, that the government’s attempts to distinguish Hunt
Building and L-3 Communications are unpersuasive. In both cases, the government, following
the submission of initial proposals and the establishment of a competitive range, entered into
discussions with offerors during which it relaxed material solicitation requirements for the
successful offeror but not for the protester. As a result, the protester’s proposal in each case was
held to more stringent requirements than the successful offeror’s. In such circumstances, this
court found the government to have unlawfully engaged in unequal treatment. See L-3
Communications, 83 Fed. Cl. at 652 (finding error in the Army’s decision to allow the successful
offeror’s modified proposal to proceed to award without being subjected to “Endurance-Live
Fire Essential Criteria testing” to which the protester’s proposal had been subjected); Hunt
Building, 61 Fed. Cl. at 274 (finding error in the Air Force’s decision to modify a solicitation
requirement for the successful offeror after twice rejecting the protester’s request for the same
modification). Defendant argues that, unlike in Hunt Building and L-3 Communications, “the
same RFQ was before CliniComp and Picis,” Def.’s Mot. at 15 n.7, and the agency “did not
waive a mandatory requirement” but rather “abided by a mandatory RFQ requirement” by rating
CliniComp’s proposal as technically unacceptable, Def.’s Reply at 8. Contrary to defendant’s
assertions, there is no meaningful difference between modifying the terms of a solicitation for
(continued . . .)

28
 The court is mindful of the substantial discretion afforded to agencies
when conducting negotiated procurements such as this, as well as the
heightened deference which is normally afforded to technical judgments that
are within a procuring agency’s area of expertise. See supra Part II.B.
Nevertheless, an agency’s discretion in this context is not boundless, and the
court need not defer to a wholly arbitrary procurement decision. At the very
least, the source selection authority (SSA) must provide a “coherent and
reasonable explanation” for its conclusions, even if those conclusions are
technical in nature. Axiom, 564 F.3d at 1381 (citation and internal quotation
marks omitted); see Weston Solutions, Inc. v. United States, 95 Fed. Cl. 311, 328
(2010) (concluding that the agency acted irrationally by “fail[ing] to articulate a
coherent and reasonable explanation” for its rating of plaintiff’s proposal), aff’d,
440 F. App’x 926 (Fed. Cir. 2011); Info. Sciences Corp. v. United States, 73 Fed.
Cl. 70, 121 (2006) (noting that the FAR “requires evidence of the [SSA’s] exercise
of independent judgment”) (citation omitted), aff’d on reconsideration in part, 75
Fed. Cl. 406 (Fed. Cl. 2007).

Here, the record is bereft of any explanation for the VA’s rating of Picis’s
quotation as technically acceptable. The only record evidence pertaining to the
agency’s technical evaluation of Picis’s quotation is a series of “Technical
Evaluation Rating Sheets” on which the VA’s evaluators marked a check box
labeled “ACCEPTABLE” and circled the word “Pass” under each of the five
technical evaluation criteria. AR Tab 16. At oral argument, government counsel
confirmed that there is no record evidence of the agency setting forth the basis for
its “Pass” rating, “[o]ther than [the agency’s] checking off a box.” Tr. at 29.

The agency’s failure to articulate any basis for its disparate treatment of
CliniComp’s and Picis’s quotations renders this procurement fundamentally
irrational and invalid. While the APA standard does not charge the court with

the benefit of only one offeror and evaluating offerors differently under the same solicitation
terms. Moreover, defendant’s myopic argument focuses exclusively on CliniComp’s allegedly
non-compliant response to requirement 5.7.3, and ignores the fact that Picis’s response to that
same requirement was functionally equivalent yet was rated more favorably by the VA’s
evaluators.

29
holding the VA to a mistake-free procurement, the court simply cannot discern any
“coherent and reasonable explanation” of the agency’s exercise of discretion
where, as here, the record contains no explanation whatsoever. Axiom, 564 F.3d at
1381; see Weston Solutions, 95 Fed. Cl. at 328.

B. Plaintiff’s Challenge to a “Competitive Range of One” (Count II)
and to the VA’s “Discussions” (Counts III and IV)

CliniComp’s remaining allegations raise issues concerning the level of
scrutiny to be applied in reviewing the VA’s technical evaluation of proposals as
well as the adequacy of the VA’s exchanges with CliniComp following the receipt
of quotations and before award. In Count II, plaintiff asserts that the VA’s
rejection of CliniComp’s quotation as technically unacceptable must be subjected
to “close scrutiny” because it resulted in a “competitive range” consisting of one
offeror. Compl. ¶¶ 38, 40-41; see Pl.’s Mot. at 23-26; Pl.’s Reply at 16-17.
Plaintiff contends that this procurement “cannot withstand close scrutiny” because
the VA “abruptly and prematurely terminate[d] discussions” with CliniComp based
upon the agency’s alleged “rush to enter into a contract before the end of the
federal fiscal year.” Pl.’s Mot. at 25-26.

In Count III, plaintiff alleges that the VA failed to engage in “meaningful
discussions” with CliniComp because it did not tell CliniComp, prior to selecting
Picis for award, that the agency considered CliniComp’s quotation to have taken
exception to requirement 5.7.3. Compl. ¶¶ 42-49; see also Pl.’s Mot. at 26-29;
Pl.’s Reply at 24-29. In plaintiff’s view, “[i]f the VISN 9 Contracting Officer had
told CliniComp of [the agency’s] actual concerns, CliniComp would have removed
any language in its proposal that formed the basis for [the agency’s] perception that
CliniComp had taken exception to [requirement] 5.7.3.” Compl. ¶ 48; see also
Pl.’s Mot. at 28 (“[T]here would be no protest today if [the VA] had complied with
its duty to engage in meaningful discussions by informing CliniComp of the
evaluators’ actual concerns.”).

Finally, in Count IV, plaintiff reiterates its contention that the VA abused its
discretion by “abruptly and prematurely terminat[ing] discussions” with
CliniComp based upon the agency’s alleged “rush to enter into a contract before

30
the end of the federal fiscal year.” Compl. ¶ 57; see also Pl.’s Mot. at 29-30; Pl.’s
Reply at 20-21, 28-29.

An analysis of plaintiff’s allegations concerning the VA’s alleged
establishment of a “competitive range” of one offeror, as well as the adequacy of
the agency’s alleged “discussions” with CliniComp, requires an understanding of
the operation of FAR 15.306, which establishes a comprehensive scheme
governing procuring agencies’ competitive range determinations and pre-award
exchanges with offerors.

Pursuant to FAR 15.306(a), when an award is to be made “without
discussions” between the parties, the government “may” conduct limited
exchanges, or “clarifications,” to “clarify certain aspects of proposals . . . or to
resolve minor or clerical errors.” FAR 15.306(a)(2). FAR 15.306(a) thus
describes the decision to engage in clarifications as discretionary. See ITAC, 316
F.3d at 1318 (noting that the agency may choose to engage in clarifications “with
one or more offerors”) (citations omitted); BCPeabody Constr. Servs., Inc. v.
United States, 112 Fed. Cl. 502, 510 (2013) (“For negotiated procurements,
clarifications are to be obtained at the discretion of the contracting officer.”),
appeal dismissed per stipulation, No. 2014-5024, 2014 WL 1386691 (Fed. Cir.
Mar. 27, 2014); DynCorp Int’l LLC v. United States, 76 Fed. Cl. 528, 540 (2007)
(“[A] procuring agency has the discretion to decline to enter into clarifications with
an offeror, even if the agency has engaged in clarifications with another offeror.”)
(citations omitted); Gulf Grp. Inc. v. United States, 61 Fed. Cl. 338, 361 (2004)
(“Nor does the FAR ever require clarifications to be requested by agency
officials.” (citing FAR 15.306(a))).

FAR 15.306(b) addresses exchanges aimed at determining whether an
offeror should be included in the competitive range of proposals. Such
“communications” may be conducted “to enhance Government understanding of
proposals . . . or [to] facilitate the Government’s evaluation process . . . . [f]or the
purpose of establishing the competitive range.” FAR 15.306(b)(2). FAR
15.306(b)(3) emphasizes, however, that such communications “shall not provide
an opportunity for the offeror to revise its proposal.” Additionally, such
communications are not applicable where no competitive range is established.
FAR 15.306(b) (stating that communications are exchanges “leading to

31
establishment of the competitive range” which only occur “[i]f a competitive range
is to be established”).

FAR 15.306(c) discusses the competitive range determination itself, and
provides, in pertinent part, that

[a]gencies shall evaluate all proposals in accordance with
15.305(a), and, if discussions are to be conducted,
establish the competitive range. Based on the ratings of
each proposal against all evaluation criteria, the
contracting officer shall establish a competitive range
comprised of all of the most highly rated proposals . . . .

FAR 15.306(c)(1) (emphasis added). FAR 15.306(c) thus makes it clear that the
government will establish a competitive range only in those instances where it
intends to engage in “discussions” with an offeror during which the offeror will be
afforded an opportunity to revise its proposal. See Femme Comp Inc. v. United
States, 83 Fed. Cl. 704, 729 (2008) (“A contracting agency is required to establish
a competitive range if it intends to conduct discussions with offerors.” (citing FAR
15.306(c)(1))); DynCorp, 76 Fed. Cl. at 538 (“When an agency decides not to hold
discussions, a competitive range is neither required nor permitted by FAR
15.306.”); Firearms Training Sys., Inc. v. United States, 41 Fed. Cl. 743, 747-48
(1998) (noting that “FAR 15.306(a) anticipates that where, as here, the solicitation
reflects an intent to make an award without discussions, the contracting officer will
make a competitive range determination only if the contracting officer later
determines that commencing such discussions and allowing proposal revisions
would be efficient”).

FAR 15.306(d) sets forth the rules for “[e]xchanges with offerors after
establishment of the competitive range.” The hallmark of such exchanges, called
“discussions,” is that they “are undertaken with the intent of allowing the offeror to
revise its proposal.” FAR 15.306(d); see ITAC, 316 F.3d at 1322 (noting that FAR
15.306 “contemplates discussions as occurring in the context of negotiations”
during which “bidders have the opportunity to revise their proposals” (citing FAR
15.306(d)); DynCorp, 76 Fed. Cl. at 541 (noting the “long-standing GAO rule that
‘the acid test for deciding whether discussions have been held is whether it can be

32
said that an offeror was provided the opportunity to revise or modify its proposal’”
(quoting Priority One Servs., Inc., B-288836, B-288836.2, 2002 CPD ¶ 79, 2001
WL 1872433, at *4 (Comp. Gen. Dec. 17, 2001))).

The decision whether to conduct discussions is generally left to the
discretion of the contracting officer. E.g., Atl. Diving Supply, Inc. v. United States,
107 Fed. Cl. 244, 263-64 (2012) (Atlantic Diving) (“[T]his court has recognized
that ‘both the decision to conduct discussions and the scope of any discussions are
left to the judgment of the contracting officer.’” (quoting Biospherics, Inc. v.
United States, 48 Fed. Cl. 1, 9 (2000))). This is particularly so where offerors are
on notice that award may be made without discussions. E.g., Allied Tech. Grp.,
Inc. v. United States, 649 F.3d 1320, 1328 (Fed. Cir. 2011) (holding that an RFQ
“unambiguously g[ave] the Contracting Officer the discretion over whether to
engage in discussions” where the RFQ provided that the government intended to
make award on the basis of initial quotations “without the use of discussions”);
Atlantic Diving, 107 Fed. Cl. at 263 (stating that the protester was “on notice,
based on the clear terms of the Solicitation, that corrective discussions were not
guaranteed, and that its proposal would either stand or fall on its own, as written”);
DynCorp, 76 Fed. Cl. at 539-40 (same); see also 41 U.S.C. § 3703(a)(2) (2012)
(stating that a procuring agency may award a contract “without discussions with
the offerors . . . if . . . the solicitation included a statement that proposals are
intended to be evaluated, and award made, without discussions unless discussions
are determined to be necessary”); FAR 15.306(a)(3) (“Award may be made
without discussions if the solicitation states that the Government intends to
evaluate proposals and make award without discussions.”). In such circumstances,
if the government later “determines it is necessary to conduct discussions, the
rationale for doing so shall be documented in the contract file.” FAR 15.306(a)(3).

Here, the record demonstrates that the VA did not intend to allow offerors to
revise their proposals through “discussions” pursuant to FAR 15.306(d).
Consistent with FAR 15.306(a)(3), the RFQ informed offerors that the VA
“intends to evaluate offers and award a contract without discussions with offerors,”
and therefore “the offeror’s initial offer should contain the offeror’s best terms
from a price and technical standpoint.” AR at 63; see also id. at 929.
“Incorporation of the substance of this notice into solicitations has been held to put
offerors on notice that they should not expect to have an opportunity to revise their

33
offers.” John Cibinic, Jr. et al., Formation of Government Contracts 869 (4th ed.
2011) (citing Robotic Sys. Tech., B-278195, B-278195.2, 98-1 CPD ¶ 20, 1998 WL
14951 (Comp. Gen. Jan. 7, 1998)). Thus, CliniComp was on notice, based on the
clear terms of the RFQ, that the VA intended to award without discussions and that
CliniComp would not be afforded an opportunity to revise its quotation unless the
VA later determined that discussions were necessary.

Plaintiff argues that although discussions were not contemplated at the
outset of this procurement, “it is beyond contention that the Contracting Officer
entered into discussions” with CliniComp. Pl.’s Reply at 24; see also Tr. at 22
(stating that “discussions here were not required, but they were voluntarily entered
into”). In support of its argument, plaintiff refers to a memorandum prepared by
Mr. Hendricks in connection with CliniComp’s agency-level protest in which Mr.
Hendricks stated, in pertinent part:

[CliniComp] knew exactly what our concerns were,
which was that they were not offering a current solution
or compliance. My explanation on how they failed to
meet the technical requirement was expressed in my own
words, and not that of a technical evaluator.

....

Under GSA rules I was not required to engage in any
discussions or clarification. I did however do just that,
and the response [CliniComp] provided seemed to further
reinforce the fact [that] they were not able to offer
compliance for that requirement until negotiations for
agreeable specifications were conducted and an
additional quote was then provided.

AR at 916; see Pl.’s Reply at 24-25. Plaintiff contends that the above-quoted
language contains Mr. Hendricks’ “admission” that he entered into discussions
with CliniComp. Pl.’s Reply at 25. Additionally, at oral argument, plaintiff
referred the court to alleged evidence of “discussions” in e-mail correspondence
between Mr. Hendricks and Mr. McDonald on September 26, 2013, AR at 938-45,

34
as well as Mr. McDonald’s description of such correspondence in his declaration
submitted in connection with CliniComp’s agency-level protest, id. at 909-10; see
Tr. at 42.

Upon review of the record, the court is not persuaded that the VA ever
entered into discussions with CliniComp, as that term is defined by FAR
15.306(d). Rather, it is clear that the agency engaged only in clarifications
pursuant to FAR 15.306(a). In his e-mail correspondence with Mr. McDonald on
September 26, 2013, Mr. Hendricks stated that he was seeking only to obtain
further information regarding CliniComp’s response to requirement 5.7.3. AR at
939 (“VISN 9 doesn’t understand why [CliniComp] would provide a quotation for
something that is a mandatory requirement. Shouldn’t it just be included in the
base price?”); see also id. at 933 (describing the additional information provided
by Mr. McDonald via e-mail on September 26, 2013 as “further clarification”), 938
(expressing gratitude for Mr. McDonald’s “clarification” of CliniComp’s response
to requirement 5.7.3). Notwithstanding Mr. Hendricks’ imprecise description of
his pre-award exchanges with Mr. McDonald as “discussions or clarification,” id.
at 916, plaintiff has presented no evidence that the contracting officer ever afforded
CliniComp an opportunity to revise its quotation through discussions, see ITAC,
316 F.3d at 1322-23 (holding that exchanges between the Air Force and the
prevailing bidder were “clarifications,” not “discussions,” because the prevailing
bidder was not given an opportunity to revise its proposal). Accordingly, plaintiff
has failed to demonstrate that the government engaged in discussions pursuant to
FAR 15.306(d).

Because the VA never conducted discussions, it was neither required nor
permitted to make a competitive range determination. See, e.g., Femme Comp, 83
Fed. Cl. at 729; DynCorp, 76 Fed. Cl. at 538. Nor has plaintiff offered any
evidence that the agency made such a determination. Therefore, plaintiff’s
allegations of error with respect to the VA’s alleged discussions and competitive
range determination must fail.

V. Success on the Merits

Based upon the VA’s disparate treatment of CliniComp and Picis in the
agency’s technical evaluation of proposals, the court finds that the agency’s award

35
decision was irrational and fundamentally flawed. The agency’s errors are too
significant to disregard as harmless or de minimis.

The parties nevertheless dispute whether CliniComp was prejudiced by the
procurement errors committed by the VA. In that regard, as noted supra, the
question is not whether CliniComp has proved that it would have received the
award but for these procurement errors. See, e.g., Data General, 78 F.3d at 1562.
Rather, the question is whether CliniComp has shown that it had a substantial
chance of receiving the contract award but for the VA’s disparate treatment of
CliniComp and Picis. See id.

The court finds that CliniComp has made the required showing of prejudice.
As previously noted, CliniComp offered the lowest price by a considerable margin.
If the VA had evaluated CliniComp’s response to requirement 5.7.3 in the same
manner as it evaluated Picis’s response, it could easily have found both offerors’
quotations to be technically acceptable, and CliniComp as the lowest price bidder
would therefore have had a substantial chance of receiving award. Alternatively,
the agency, had it evaluated proposals fairly, might have concluded that neither
CliniComp nor Picis satisfied requirement 5.7.3 in their initial proposals, and
might have opted to elicit revised quotations through discussions. In that
alternative scenario, CliniComp would likewise have had a substantial chance of
receiving award by altering its quotation to conform to the agency’s requirements.

In sum, the court is satisfied that CliniComp had a substantial chance of
award, and was prejudiced by the procurement errors discussed in this opinion.
CliniComp has therefore succeeded on the merits of its bid protest. Because
CliniComp has prevailed on the merits, the court turns to the factors governing the
award of injunctive relief.

VI. Injunctive Relief

As the Federal Circuit has held,

[i]n deciding whether a permanent injunction should
issue, a court considers: (1) whether, as it must, the
plaintiff has succeeded on the merits of the case; (2)

36
 whether the plaintiff will suffer irreparable harm if the
court withholds injunctive relief; (3) whether the balance
of hardships to the respective parties favors the grant of
injunctive relief; and (4) whether it is in the public
interest to grant injunctive relief.

PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004) (citation
omitted). Here, plaintiff has succeeded on the merits. Thus, the first injunctive
relief factor favors permanently enjoining the VA’s contract award to Picis.

With regard to an assessment of the factor of irreparable harm, the relevant
inquiry is whether CliniComp has an adequate remedy in the absence of injunctive
relief. See, e.g., EREH Phase I LLC v. United States, 95 Fed. Cl. 108, 123 (2010)
(citing Acumed LLC v. Stryker Corp., 551 F.3d 1323, 1327 (Fed. Cir. 2008)). This
court, in many cases, has found that the loss of an opportunity to fairly compete for
a contract constitutes irreparable harm because it is not compensable by bid
preparation costs, which is the only other available relief to a disappointed bidder.
See, e.g., Furniture by Thurston v. United States, 103 Fed. Cl. 505, 520 (2012)
(“The court has repeatedly held that ‘the loss of potential profits’ from a
government contract constitutes irreparable harm.” (quoting BayFirst Solutions,
LLC v. United States, 102 Fed. Cl. 677, 696 (2012))); ViroMed Labs., Inc. v.
United States, 87 Fed. Cl. 493, 503 (2009) (holding that “[s]tanding alone, the loss
of an opportunity to fairly compete on future government contracts constitutes
irreparable harm” because “[a]n action at law only allows recovery of bid
preparation costs in a suit for damages, but not loss of anticipated profits”)
(citations and internal quotation marks omitted); Hosp. Klean of Tex., Inc. v.
United States, 65 Fed. Cl. 618, 624 (2005) (“Here, absent injunctive relief, [the
protester] will lose the opportunity to earn the profit it would have made under this
contract. Such loss of profit, stemming from a lost opportunity to compete for a
contract on a level playing field[,] has been found sufficient to constitute
irreparable harm.”) (citations omitted). The court considers the loss of potential
profits from a large government contract award, in this instance, to constitute
irreparable harm. Thus, plaintiff has satisfied the second criterion for receiving a
permanent injunction.

37
 With respect to the third factor, this court tends to weigh the balance of
hardships factor in favor of the protestor who has succeeded on the merits, unless
specific facts counsel otherwise. See, e.g., BayFirst Solutions, 102 Fed. Cl. at 696
(citing Cardinal Maint. Serv., Inc. v. United States, 63 Fed. Cl. 98, 110-11 (2004)).
Here, the government agreed, at the outset of this case, to suspend performance of
the disputed contract pending the resolution of CliniComp’s protest. See Order of
March 10, 2014, at 2. The government has not argued, or shown, that an additional
delay in performance would constitute a hardship for the VA. Thus, the balance of
hardships tips in favor of CliniComp, if it were not permitted to fairly compete for
the contract at issue, when compared to any hardships the VA might face.

Finally, as to the public interest, the court views this factor as
unquestionably favoring injunctive relief in this case. The VA’s technical
evaluation, and thus its award decision, reflected the agency’s unequal treatment of
offerors and therefore lacked a rational basis. Furthermore, CliniComp provided
the quotation with the lowest price, yet the VA rejected those cost savings. Such
award decisions destroy the public trust in government contracting and deprive the
government of the benefits of full and open competition. See, e.g., Metcalf Constr.
Co. v. United States, 53 Fed. Cl. 617, 645 (2002) (noting the twin goals of
preserving “public confidence and competition in the federal procurement
process”) (citation omitted). Because all four factors favor injunctive relief in this
protest, the court concludes that a permanent injunction must issue.

VII. Nature of the Permanent Injunction

The award of Contract No. GS-35F-0589X to Picis must be set aside. The
court does not set any restrictions on the VA’s options for the re-solicitation of
proposals, or for the re-evaluation of proposals received under RFQ No. VA249-
13-Q-1015. The agency also has the discretion to not re-procure these services.

The court notes, however, that any technical re-evaluation of proposals
under RFQ No. VA249-13-Q-1015 must be conducted in accordance with the
standards referenced in this opinion and must correct the errors noted in this
opinion by providing a detailed explanation as to whether proposals adequately
responded to each of the technical requirements set forth in the RFQ, including

38
requirement 5.7.3. Upon re-evaluation, the VA is permitted, but not required, by
the solicitation to enter into discussions with offerors. See AR at 63.

VIII. Plaintiff’s Motion to Supplement the Record

Finally, the court turns its attention to a dispute between the parties as to
whether Mr. McDonald’s declaration, prepared for the purposes of this litigation
and filed as Exhibit A to plaintiff’s complaint (hereinafter, Exhibit A), may be
utilized to supplement the AR in this bid protest.

As a general rule, the “focal point for judicial review [of the challenged
agency decision] should be the administrative record already in existence, not
some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S.
138, 142 (1973). In Axiom, the Federal Circuit identified the acceptable
circumstances under which the administrative record may be supplemented in a bid
protest. 564 F.3d at 1379-81. The Axiom panel adopted a restrictive standard for
supplementation of the record in a bid protest, stating that “supplementation of the
record should be limited to cases in which ‘the omission of extra-record evidence
precludes effective judicial review.’” Id. at 1380 (quoting Murakami v. United
States, 46 Fed. Cl. 731, 735 (2000)). The purpose of this restrictive standard, the
court noted, is “to guard against courts using new evidence to ‘convert the arbitrary
and capricious standard into effectively de novo review.’” Id. (quoting Murakami,
46 Fed. Cl. at 735).

The court notes, at the outset, that Exhibit A is identical in certain respects to
Mr. McDonald’s declaration filed in connection with CliniComp’s agency-level
protest, which is already part of the AR. See AR at 908-11. For instance, Mr.
McDonald’s description in Exhibit A of his exchanges with Mr. Hendricks from
September 26, 2013 through October 3, 2013 is largely duplicative of material in
his earlier declaration. Compare id. at 909-11, with Compl. Ex. A ¶¶ 10-11, 13-17.
Such duplicative material adds nothing to the AR, and therefore its omission would
not “‘frustrate effective judicial review.’” Axiom, 564 F.3d at 1381 (quoting Pitts,
411 U.S. at 142-43); see NCL Logistics Co. v. United States, 109 Fed. Cl. 596, 616
(2012) (holding that the omission of duplicative material from the existing record
would not preclude meaningful review) (citations omitted), appeal dismissed per

39
stipulation, No. 2013-5064 (Fed. Cir. Sept. 27, 2013); PlanetSpace, Inc. v. United
States, 90 Fed. Cl. 1, 9 (2009) (same).

The non-duplicative material in Exhibit A pertains to: (1) CliniComp’s
alleged contracts with other VISNs, Compl. Ex. A ¶¶ 26-29; (2) an alleged
conversation between Mr. McDonald and Mr. Hendricks on September 17, 2013
which allegedly revealed the VA’s haste to award a contract before the end of the
federal fiscal year, id. ¶¶ 5-6; and (3) Mr. McDonald’s assertion that had Mr.
Hendricks revealed during “discussions” that the VA considered CliniComp’s
proposal to be technically unacceptable, CliniComp “would have removed any
language in its proposal that formed the basis” for the agency’s conclusion, id. ¶
20.15 As noted supra, plaintiff relies upon the first category of new information to
support its understanding of the term CPRS in requirement 5.7.3. Yet, as
previously explained, the court may not refer to such information because the RFQ
is unambiguous as to the meaning of the term CPRS.

The second and third categories of new information are relied upon by
plaintiff to support its allegations concerning the VA’s alleged discussions and
competitive range determination. See Pl.’s Mot. at 25-27; Pl.’s Reply at 17-18, 23-
24. As set forth supra, however, the agency was not required to, and did not,
engage in discussions or make a competitive range determination. Thus, evidence
of the VA’s alleged “rush” to award a contract, as well as Mr. McDonald’s opinion
as to how CliniComp might have altered its quotation but for certain perceived
defects in the agency’s “discussions,” have no relevance to this bid protest and are
not necessary for effective judicial review.

Simply put, the court does not need Exhibit A to conduct a meaningful
review of this procurement. Accordingly, Exhibit A is not an acceptable
supplement to the AR in this case and plaintiff’s motion to supplement must be
denied.

CONCLUSION

15
/ The court notes an apparent typographical error in Exhibit A, which contains two
paragraphs numbered “20.” See Compl. Ex. A at 5-6. The paragraph cited above is the first such
paragraph numbered “20.”

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Accordingly, it is hereby ORDERED that

(1) Plaintiff’s Motion to Supplement and Complete the Administrative
Record, filed March 18, 2014, is DENIED;

(2) Plaintiff’s Motion for Judgment on the Administrative Record, filed
April 2, 2014, is GRANTED;

(3) Defendant’s Cross-Motion for Judgment on the Administrative
Record, filed April 25, 2014, is DENIED;

(4) The Clerk’s Office is directed to ENTER final judgment in favor of
plaintiff, as follows:

The United States, by and through the Department of Veterans
Affairs, is hereby PERMANENTLY RESTRAINED AND
ENJOINED from obtaining performance from Picis, Inc. on
Contract No. GS-35F-0589X awarded on October 2, 2013;

(5) On or before July 31, 2014, counsel for the parties shall CONFER
and FILE with the Clerk’s Office a redacted copy of this opinion,
with any material deemed proprietary or confidential marked out and
enclosed in brackets, so that a copy of the opinion can then be
prepared and made available in the public record of this matter;

(6) On or before July 31, 2014, defendant shall FILE, as a separate
UNSEALED document on CD-ROM, a redacted version of the
administrative record filed March 12, 2014, as well as redacted
versions of the supplements to the administrative record filed on
March 21, 2014 and April 18, 2014, so as to establish a proper public
record of this protest;

(7) On or before July 31, 2014, defendant shall FILE, as a separate
UNSEALED document, a redacted version of Defendant’s
Opposition to Plaintiff’s Motion to Supplement the Administrative

41
 Record, filed March 28, 2014, so as to establish a proper public record
of this protest; and

(8) Each party shall bear its own costs.

/s/Lynn J. Bush
LYNN J. BUSH
Senior Judge

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