Sev1tech, Inc. v. United States

REDACTED OPINION
In the United States Court of Federal Claims
Nos. 15-876C; 15-923C
Filed: December 15, 2015
Redacted Version Issued for Publication: March 25, 20161

* * * * * * * * * * * * * * * * ** *
CONSTELLATION WEST, INC. *
and SEV1TECH, INC., * Post-Award Bid Protest; Motion for
* Judgment on the Administrative
Protestors, * Record; Unstated Criteria; Waiver
* of Informalities and Minor
v.
* Irregularities; FAR 52.215-1(f)(3);
UNITED STATES, * Clarifications; FAR 15.306(a)(2);
* Unequal Treatment.
Defendant. *
* * * * * * * * * * * * * * * * ** *

Ralph C. Thomas III, Barton Baker Thomas & Tolle, LLP, McLean, Virginia for
protestor Constellation West, Inc.

Shlomo D. Katz, Brown Rudnick, LLP, Washington DC for protestor Sev1Tech,
Inc. Of counsel was Aidan Delgado, Brown Rudnick, LLP, Washington, DC.

Eric J. Singley and James R. Sweet, Trial Attorneys, Commercial Litigation
Branch, Department of Justice, Washington, DC for defendant. With them were Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Robert E.
Kirschman, Jr., Director, Commercial Litigation Branch, and Douglas K. Mickle,
Assistant Director, Commercial Litigation Branch, Department of Justice, Washington,
D.C. Of Counsel were William P. Rayel, Senior Trial Counsel, Commercial Litigation
Branch, Department of Justice, Washington, D.C. and Gregory A. Moritz, Assistant
General Counsel, Defense Intelligence Agency.

OPINION

HORN, J.

1This opinion was issued under seal on December 15, 2015. The parties were asked to
propose redactions prior to public release of the opinion. This opinion is issued with some
of the redactions that the parties proposed in response to the court’s request, as well as
additional redactions that the court views as proper. Words which are redacted are
reflected with the following notation: “[redacted].”
 FINDINGS OF FACT

The two above captioned cases are post-award bid protests arising from the same
solicitation issued by the Defense Intelligence Agency (DIA). Protestor Constellation
West, Inc. (Constellation West), in case number 15-876C, is a Nebraska corporation
headquartered in Bellevue, Nebraska, that provides Information Technology (IT) support
and solutions. Protestor Sev1Tech, Inc. (Sev1Tech), in case number 15-923C, is a
Virginia corporation headquartered in Woodbridge, Virginia, that also provides IT support
and solutions. DIA received seventy-five proposals for the solicitation, twenty-six for the
full and open track and forty-nine for the small business track, including proposals from
Constellation West and Sev1Tech. On July 15, 2015, the Source Selection Authority
(SSA) stated in his Source Selection Decision Document that DIA had determined twenty-
five offerors to the small business track represented the “best overall value” to the
government based on the analysis and recommendations of the Source Selection
Advisory Council (SSAC), which were attached to the Source Selection Decision
Document, and that contract awards should, therefore, be made to those offerors. The
twenty-five offerors did not include Constellation West or Sev1Tech. On July 17, 2015,
DIA issued award notices to the twenty-five successful offerors. All twenty-five of the
awardees subsequently signed contracts with DIA. Of the twenty-four disappointed
offerors to the small business track, six filed protests in this court, all assigned to the
undersigned. After a hearing and after the administrative record was filed, four of these
protests, in case numbers 15-832C, 15-877C, 15-916C, and 15-922C, were voluntarily
dismissed by the protestors, leaving only the two above captioned protests.

The Solicitation

The solicitation at issue, number HHM402-14-R-0002, allowed offerors the
opportunity to join DIA’s Enhanced Solutions for the Information Technology Enterprise
(E-SITE) contract vehicle. According to the solicitation, the E-SITE contract is intended to
“establish the acquisition framework for delivering the full scope of information technology
services and capabilities to support the DIA, the Combatant Commands (CCMDs), the
Military Services intelligence needs, and partner agency worldwide missions across the
Intelligence Community (IC).” The E-SITE contract is intended to do so by creating a
“contract vehicle that provides participating organizations with comprehensive
Information Technology (IT) technical support services leveraging a mix of large and small
business primes and subcontractors to satisfy the participating organizations’ mission
requirements.” Specifically, the solicitation created an Indefinite Delivery/Indefinite
Quantity (ID/IQ) contract vehicle that will allow E-SITE awardee contractors to propose
solutions for task orders issued by the participating agencies. Task orders will be
competed among E-SITE contractors, although some task orders may be set-aside for
small businesses. The E-SITE contract is intended to replace DIA’s current Solutions for
the Information Enterprise (SITE) contract. The ID/IQ contract’s ordering period consists
of one base year and four one year options. The maximum amount that may be awarded
to any E-SITE contractor is $6,000,000,000.00, and the minimum guaranteed amount is
$500.00.

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 The original E-SITE solicitation was issued on March 18, 2014 and the final
amended version of the solicitation on May 6, 2014. Awards under the solicitation were
to be made to those offerors whose proposals were determined by DIA to represent the
best value to the federal government. The solicitation created two separate “Evaluation
Tracks” for awards: full and open awards and awards reserved for small business in
accordance with Federal Acquisition Regulations (FAR) 19.502-4(a) (2015). Both
protestors were evaluated under the small business track. Offerors who submitted
proposals under the small business track were evaluated based on price and three non-
price factors: Past Performance; Management/Technical; and Security/Supply Chain Risk
Management. Offerors who submitted proposals under the full and open track were
evaluated under these same factors, as well as an additional Small Business Participation
Factor. The non-price factors included sub-factors that represented specific
characteristics of the solicitation’s objectives. The ratings on which proposals would
ultimately be evaluated, however, were to be assigned at the factor level only. Price was
to be evaluated for completeness and reasonableness in accordance with FAR 15.404-1
(2015). The Security/Supply Chain Risk Management Factor was to be evaluated on a
pass/fail basis and was not to be considered in the best-value analysis. The other non-
price factors (Past Performance and Management/Technical), when combined, were to
be significantly more important than price in determining which proposals represented the
best value. Both the Past Performance and Management/Technical Factors were to be
assigned an overall adjectival/color rating.

The evaluation of individual areas within these Factors included the determination
of significant strengths, strengths, weaknesses, significant weaknesses, and areas that
meet the standard. A “Strength” was defined in the solicitation as “an aspect of an offeror’s
proposal that has merit or exceeds specified performance or capability requirements in a
way that will be advantageous to the Government during contract performance.” A
“Significant Strength” was defined as “an aspect of an offeror’s proposal that has
appreciable merit or appreciably exceeds specified performance or capability
requirements in a way that will be appreciably advantageous to the Government during
contract performance.” A “Weakness” was defined as “a flaw in the proposal that
increases the risk of unsuccessful contract performance.” A “Significant Weakness” was
defined as “a flaw [in the proposal] that appreciably increases the risk of unsuccessful
contract performance.” “Meets the Standard” was defined as “an aspect of the proposal
which does not constitute a strength, weakness, or deficiency.” Each volume of the
proposal, Past Performance, Management/Technical, Security/Supply Chain Risk
Management, and Price, was required to “be written on a stand-alone basis, so that its
contents can be evaluated with no cross-referencing to other volumes.” The solicitation
further stated that “[i]nformation required for proposal evaluation that is not found in its
designated volume may result in unfavorable proposal evaluation.”

The Past Performance Factor evaluated offerors’ performance as either a prime
contractor or a subcontractor on complex IT-related efforts, which were completed within
the last three years or on-going at the time of the solicitation. An overall adjectival/color
rating was assigned for Past Performance based on the following rating table:

Color Rating Description

3
 Blue Substantial Based on the offeror’s recent/relevant performance
Confidence record, the Government has a high expectation that the
offeror will successfully perform the required effort.
Purple Satisfactory Based on the offeror’s recent/relevant performance
Confidence record, the Government has a reasonable expectation
that the offeror will successfully perform the required
effort.
Green Limited Based on the offeror’s recent/relevant performance
Confidence record, the Government has a low expectation that the
offeror will successfully perform the required effort.
Red No Based on the offeror’s recent/relevant performance
Confidence record, the Government has no expectation that the
offeror will be able to successfully perform the required
effort.
White Unknown No recent/relevant performance record is available or the
Confidence offeror’s performance record is so sparse that no
(Neutral) meaningful confidence assessment rating can be
reasonably assigned.

(emphasis in original).

For the Management/Technical Factor, offerors were to be assigned an overall
adjectival/color rating based on two sub-factors, listed in descending order of importance:
(1) Management Experience and Expertise (Section M-3.2.1 of the solicitation) and (2)
Technical Experience and Expertise mapped to functional areas in the Statement of Work
(SOW) (Section M-3.2.2 of the solicitation). For the Management Experience and
Expertise Sub-factor, offerors were to provide “evidence of, and the Government will
evaluate, the depth and breadth of their team’s experience and details of their team’s
expertise on similar on-going and completed projects (as a prime or a subcontractor) with
respect to areas defined” in four sub-paragraphs. The first of these sub-paragraphs
(Section M-3.2.1.1 of the solicitation) stated, in relevant part:

1. IC Wide Transition and Integration Efforts:

The offeror shall provide evidence of their in-depth understanding and ability
to support current/projected IC wide transition and integration efforts (e.g.
Intelligence Community Information Technology Enterprise (IC ITE), Joint
Information Environment (JIE). . . ) and their ability to apply new and
emerging technologies/capabilities in the following demonstration areas.

***

e. Capacity planning approaches.

(first ellipsis in original). The second sub-paragraph under the Management Experience
and Expertise Sub-factor (Section M-3.2.1.2 of the solicitation) stated:

4
 2. Achieving strategic outcomes:

a. Effecting positive change on a customer’s operating model and
systems by understanding their needs, forecasting industry and the
customer’s future, and then transitioning them into a better state

***

e. Provisioning services using a managed service delivery model,
quantitative and qualitative key performance indicators, established
service levels, quality assurance reviews, and performance
management corrections

Sub-factor 2 of the Management/Technical Factor, Technical Experience and
Expertise mapped to functional areas listed in the SOW, required offerors to:

provide evidence of the depth and breadth of their team’s experience and
details of their team’s expertise on on-going and completed projects (as a
prime or a subcontractor) with respect to all areas under SOW 3.2. The
seven functional areas (3 digit paragraphs) are comparatively equal to each
other in importance. The 4 digit subparagraphs within the functional areas
are comparatively equal to each other in importance.

The SOW was included as a part of the solicitation. Among the seven functional
areas under SOW 3.2, portions of two areas are relevant to the two protests currently
before the court: “ENTERPRISE COMPUTING, STORAGE, SHARE AND FIELD
SERVICES” (SOW 3.2.4) and “CYBERSECURITY AND INFORMATION ASSURANCE
SERVICES” (SOW 3.2.6). (capitalization in original). The ninth sub-paragraph of SOW
3.2.4 (SOW 3.2.4.9), titled, “Enterprise Operations, Event Monitoring and Management,
Performance Monitoring, and Analysis,” states:

The Contractor shall provide services to establish Enterprise operations,
event monitoring and management, performance monitoring, and analysis
services. These services provide centralized operations, monitoring,
management and analysis of enterprise applications, systems, and core
services as well as infrastructure assets to include file servers, email
servers, application servers, web servers, and storage from all enterprise
service providers 365 days a year, 24 hours per day, 7 days per week.
Services include, but are not limited to, monitoring established thresholds,
responding to warning and alert messages from the monitoring systems,
coordinating corrective action once thresholds are reached to prevent
issues from re-occurring, and providing initial troubleshooting to restore
services as quickly as possible. Other services include providing feeds to
the Enterprise watch and other government designated watch centers as
directed for situational awareness, responding to escalated incidents and
outages (e.g., from the service desk), taking corrective actions to resolve
the issue, escalating issues that cannot be resolved within the network

5
 operations center, and maintaining/upgrading the supporting network
infrastructure and services.

The twelfth sub-paragraph of SOW 3.2.4 (SOW 3.2.4.12), titled “Enterprise Data Backup,
Disaster Recovery (DR), and Continuity of Operations (COOP) Operations and Support,”
states:

The Contractor shall provide support for planning, execution and
management of Enterprise data backup, disaster recovery (DR), and
continuity of operations (COOP) operations and support. Services include,
but are not limited to, ensuring Enterprise data backup, DR, and COOP
requirements are considered early in the application or systems’
development lifecycle; verifying Enterprise data backup, DR, and COOP
capabilities during installation; certifying Enterprise data backup, DR, and
COOP compliant architectures; creating and executing recurring Enterprise
data backup, DR, and COOP scenarios to test and verify continued
capabilities; and reporting lessons learned and process improvements.

Although the solicitation does not define the term “enterprise,” an April 27, 2015
Memorandum for Record (MFR), titled “Management/Technical Evaluation Process” and
prepared by the chairman of the Source Selection Evaluation Board (SSEB) responsible
for evaluating the elements of the Management/Technical Factor, states that, with regard
to SOW 3.2.4.8 through SOW 3.2.4.12, DIA evaluators “considered whether the Offeror
identified DIA Enterprise equivalent experience.” The MFR further states that:

For purposes of this evaluation the SSEB notes the current DIA Enterprise
is approximately:

 20,000 DIA / 45,000 DoDIIS [Department of Defense Intelligence
Information System] / 250,000 IC [Intelligence Community] user
base,
 25 security domains across Unclassified/Secret/Top Secret,
 5 major world-wide datacenter hubs, and
 15 regional data centers,
 550 customer sites[,]
 900,000 line items of equipment in hardware asset inventory.

The other functional area under SOW 3.2 relevant to protestor Constellation West,
SOW 3.2.6, states:

The Contractor shall provide diverse Cybersecurity and Information
Assurance (IA) services that enforce, comply with, and support the DoD and
IC cybersecurity and IA security directives, policies and procedures.
Cybersecurity and IA include a wide-range of technical, functional, and
managerial services necessary to ensure the secure operation of systems.
Cybersecurity and IA services include, but are not limited to, policy
development; security technical assessment; insider threat assessment;

6
 security architecture development; security engineering; certification and
accreditation; security compliance (such as ICD 503 and ICD 705, DoDI
8500 IA controls and other relevant DoD and IC policies). IA training
management in accordance with DoDD 8570.1, audit, assessment, and
reporting services; Computer Network Defense Service Provider (CNDSP)
and inspection services IAW DoDD 8530.1, Chairman of the Joint Chief of
Staff Instructions (CJCSI) 6510.01E and CJCSM 6510.01; vulnerability
assessment and management; metrics consolidation and reporting (to
include the Federal Information Security Management Act (FISMA)
requirements); computer network defense (CND) operations, monitoring,
and analysis; cybersecurity and IT systems and tools administration and
maintenance; incident response, tracking, and resolution; cross-domain
solutions support; inter-agency coordination; and PKI [Public Key
Infrastructure] procedures and guidance. Specific cybersecurity and IA
requirements and services will be identified in the individual task orders.

The April 27, 2015 MFR, titled “Management/Technical Evaluation Process,” noted that
“[f]or purposes of evaluations, the SOW element 3.2.6 was broken up into components.”
According to the April 27, 2015 MFR, those components were:

 SOW 3.2.6.1 Policy Development; Security compliance (policies
ICD 503/705, DOD 8500); Certification and accreditation

 SOW 3.2.6.2 Security technical assessment; Insider threat
assessment

 SOW 3.2.6.3 Security architecture development; Security
engineering

 SOW 3.2.6.4 IA training management (DoDD 8570.1
audit/assessment/reporting)

 SOW 3.2.6.5 Computer Network Defense Service Provider
(CNDSP) & inspection services (DoD 8530.1 (CJCSI) 6510.01E,
and CJCSM 6510.01)

 SOW 3.2.6.6 Vulnerability assessment and management; Metrics
consolidation and reporting (FISMA) [Federal Information Security
Management Act]

 SOW 3.2.6.7 Computer Network Defense (CND) operations,
monitoring, analysis

 SOW 3.2.6.8 Cybersecurity and IT systems and tools admin and
maintenance

7
  SOW 3.2.6.9 Incident response/tracking/resolution; inter-agency
coordination

 SOW 3.2.6.10 PKI procedures and guidance

 SOW 3.2.6.11 Cross-domain solutions support

The Management/Technical Factor was to be assigned an overall rating according
to a different rating table than the one used for the Past Performance Factor. The rating
table, which was contained in the solicitation at Section M-3.2.3, was as follows:

Color Rating Description
Proposal meets requirements and indicates an exceptional
approach and understanding of the requirements. Strengths
Blue Outstanding
far outweigh any weaknesses. Risk of unsuccessful
performance is very low.
Proposal meets requirements and indicates a thorough
approach and understanding of the requirements. Proposal
Purple Good
contains strengths which outweigh any weaknesses. Risk of
unsuccessful performance is low.
Proposal meets requirements and indicates an adequate
approach and understanding of the requirements. Strengths
Green Acceptable and weaknesses are offsetting or will have little or no
impact on contract performance. Risk of unsuccessful
performance is no worse than moderate.
Proposal does not clearly meet requirements and has not
demonstrated an adequate approach and understanding of
Yellow Marginal the requirements. The proposal has one or more
weaknesses which are not offset by strengths. Risk of
unsuccessful performance is high.
Proposal does not meet requirements and contains one or
Red Unacceptable
more deficiencies. Proposal is unawardable.

(emphasis in original).

With respect to price, proposals were to be assigned a single total price based on
ceiling labor rates offerors specified for various labor categories offerors filled in a
spreadsheet provided with the solicitation. The spreadsheet required offerors to provide
ceiling rates for various labor categories based on the level of skill required, from “Simple”
(Level 0) to “Exceptionally Complex, Inter-Discipline, Inter-Organizational” (Level 4), the
year of performance, i.e., whether performance occurs during the base year or in one of
the four option years in the E-SITE contract, and the geographic location of performance.
The spreadsheet identified seven geographic locations within the United States, referred
to as a Groups 1 through 7, and six overseas locations, Germany, the United Kingdom,
Iraq and Afghanistan, Seoul, South Korea, Qatar, and Tokyo, Japan. The spreadsheet

8
used shading to identify specific cells for which binding ceiling prices were not required.
DIA’s goals for this pricing structure were described in the E-SITE “Acquisition Plan,”
dated June 17, 2013, which stated:

As the E-SITE contract will provide ceiling labor rates for many of the
common IT labor categories, price will be a consideration, but will not be the
most important factor. The capability or performance goals will be of greater
importance than price during the source selection. The price competition
will continue at the task order level when the E-SITE prime contractors will
have the opportunity to revise their labor rates downward in the actual task
order proposals.

***

E-SITE will introduce significant competition at the task order level, thereby
driving competitive pricing. In addition, E-SITE will have labor rates
negotiated up front to ensure competitive pricing over the course of the
contract.

The solicitation described the process of how a proposal’s total price would be arrived at
and how it would be evaluated, as follows:

M-6 PRICE

A. The proposed ceiling labor rates (See Section B) will be evaluated for
their completeness and reasonableness in accordance with FAR 15.404.
Price realism or cost realism of proposed prices will not be evaluated.

B. All option year pricing will be considered in the evaluation.

C. Price analysis - The offeror’s proposed ceiling labor rates will be
multiplied against a predetermined and undisclosed quantity of hours
determined by the Government for each labor category to arrive at a total
evaluated price. This evaluation includes the base year and all option years
and a total sum will be calculated.

NOTE: The Government will NOT disclose the “predetermined and
undisclosed quantity of hours”.

D. The predetermined and undisclosed quantity of hours used in the price
analysis is a representative labor mix of historical work performed on the
SITE contract.

E. The total price will be used in the Best Value Trade-Off Analysis
supporting the final Source Selection.

(emphasis and capitalization in original).

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 The instructions offerors were to follow in submitting the price portion of their
proposals were contained in Section L of the solicitation, which stated:

L-4.5 Volume V – Price

A. The offeror must ensure that all aspects of the Section M, Price pertaining
to the solicitation are addressed. The offeror’s price proposal must adhere
to the provisions of this Volume.

B. Offerors must submit the Price Volume as described herein. Provide only
the information requested. Proper presentation, organization, and clarity, as
well as adequate supporting documentation, must be provided to facilitate
Government evaluation of the proposal.

C. The offeror’s proposed price will be subject to evaluation for
reasonableness and completeness. Information in the Price Volume that
pertains to other volumes will not be evaluated.

D. The Government will use Microsoft Office 2007 Excel for evaluation and
analysis of the pricing section of the Price Volume.

E. The Price Volume must include the ceiling rates for the base period and
all proposed options per the spreadsheet found in Section J, Attachment 2.
Ceiling rates apply to both prime and sub-contractor labor. Minor rounding
errors are acceptable. Offerors should ensure the spreadsheet is complete
(ceiling prices), but should not alter the basic format of this spreadsheet
(columns, rows, font, etc.). The instructions for information to be captured
are contained within the spreadsheet itself. All proposed ceiling rates shall
be for labor support at a Government location only.

(emphasis in original). DIA also incorporated the following “Question & Answer” related
to pricing into the solicitation via an April 16, 2014 amendment:

[Question:] Is offeror required to provide the ceiling rates for all group [sic]
for all labor categories or just for the group within its physical location and
labor categories available?

[Answer:] L-4.5 C answers your question. We require all pricing for
completeness.

The solicitation stated that DIA “intend[ed] to award the contract without
discussions with offerors,” but that “[i]n accordance with FAR 15.306(a), Offerors may be
given the opportunity to clarify certain aspects of their proposal or to resolve minor or
clerical errors.” The solicitation indicated that proposals would be due in two deliveries,
with the volumes discussing the Past Performance and Security/Supply Chain Risk
Management factors due April 17 or 18, 2014 and the volumes discussing the
Management/Technical factor and price due May 15 or 16, 2014.

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 The process by which proposals were to be evaluated and awardees chosen was
laid out in a revised Source Selection Plan, dated January 30, 2015. The revised Source
Selection Plan established separate SSEBs for each of the evaluation factors. Proposals
were to be initially evaluated by the individual members of each SSEB based on the
evaluation criteria for their factor. Each SSEB was to then agree to one group evaluation
report for each proposal based on the consensus of the findings of the individual
evaluators and assign a rating for their evaluation factor. The SSEBs’ evaluation reports
were to be presented to the SSAC, which would review the results to ensure the
evaluation process followed the evaluation criteria and prepare a comparative analysis
and recommendations to the SSA. The SSA would then make the best-value decision
and document the rationale for the decision in a Source Selection Decision Document.

Constellation West

Protestor Constellation West timely submitted the first set of volumes of its
proposal on April 18, 2014, and the second set of volumes on May 16, 2014. DIA, acting
through the SSEBs, assigned Constellation West a Satisfactory Confidence (purple)
rating for the Past Performance Factor, a Marginal (yellow) rating for the
Management/Technical Factor, and a Pass (green) rating for the Security/ Supply Chain
Risk Management Factor. Constellation West’s total evaluated price was $[redacted]. The
chairman of the Management/Technical SSEB summarized the SSEB’s reasons for
assigning a Marginal (yellow) grade for the Management/Technical portion of
Constellation West’s proposal, as well those of several other offerors’, in an April 27, 2015
MFR titled “Past Performance Evaluations and Management/Technical Evaluation Rating
Differences.” The MFR states:

The Management/Technical Yellow rating was because the Offerors’
proposals:

i. lacked detailed depth and breadth of experience for completed
and/or on-going projects for some element components;

ii. lacked detailed experience on DIA Enterprise scale projects for some
element components; and

iii. lacked an approach and detailed experience for completed and/or
on-going projects for some element components.

DIA’s rationale for rejecting Constellation West’s proposal was laid out in the
SSAC’s July 15, 2015 revised award recommendation report, on which the SSA based
his award decisions. According to the SSAC, although Constellation West’s Past
Performance Factor was “comparative to a majority of those Offerors recommended for
award” and its total evaluated price was “competitive” and “lower than all but eleven (11)
of the proposals recommended for award,” Constellation West’s proposal did not
represent the best value to the government “due to its significant and other weaknesses”
under the Management/Technical Factor. According to the SSAC:

11
 Constellation West’s Management/Technical proposal is inferior to the
proposals of all the Offerors recommended for award. Constellation West’[s]
Management/Technical proposal does not demonstrate adequate
experience and expertise to meet the E-SITE SOW requirements and the
risk of unsuccessful performance is too high to warrant award. In coming to
its award recommendations the SSAC considered that the
Management/Technical Factor was the most important of all Non-Price
Factors. Under Sub-Factor 1, the most important of the two Sub-factors
within the Management/Technical Factor, the SSAC concludes that the two
strengths identified for Constellation West with regard to management of
personnel is [sic] clearly outweighed by the five weaknesses relating to IC
Wide Transition and Integration Efforts, Achieving Strategic Outcomes, and
Management of Transitions. Furthermore under Sub-Factor 2, the SSAC
concludes that thirteen strengths (there were no significant strengths)
identified by the SSEP2 are outweighed by the six significant and twenty-
one other weaknesses. The SSAC carefully read each of the strengths and
weakness identified by the SSEP and has concluded that the risks of
unsuccessful performance as depicted by the findings under
Management/Technical Factor are too high to warrant award
notwithstanding the findings under the Past Performance Factor and lower
price as compared to the majority of the Offerors recommended for award.

The SSEB for the Management/Technical Factor assigned Constellation West’s
proposal no significant strengths, fifteen strengths, twenty six weaknesses, six significant
weaknesses, and twenty nine meets the standards. As noted in the SSAC’s report, two
strengths, five weaknesses and eleven meets the standards were assigned under
Management/Technical Sub-factor 1, Management Experience and Expertise, and
thirteen strengths, six significant weaknesses, twenty one weaknesses, and eighteen
meets the standards under Management/Technical Sub-factor 2, Technical Experience
and Expertise mapped to functional areas listed in the SOW. Constellation West now
challenges the six significant weaknesses and nine of the weaknesses assigned under
the Management/Technical Factor: two weaknesses assigned under elements of
Sub-factor 1, M-3.2.1.1e and M-3.2.1.2e; and six significant weaknesses and seven
weaknesses assigned under elements of Sub-factor 2, SOW 3.2.4.9, SOW 3.2.4.12, and
SOW 3.2.6.

The SSEB assigned one weakness based on Section M-3.2.1.1e, on the grounds
that “[t]he Offeror’s proposal lacks detailed information on a number of components within
capacity planning approaches. The Offeror’s proposal lacks description of capacity
planning that includes monitoring trends of capacity usage and projecting capacity
requirements to stay ahead of demand.”

The SSEB assigned a second weakness based on Section M-3.2.1.2e, but did so
using language contained in Section M-3.2.1.2a of the solicitation, an area for which it

2The SSAC’s report refers to the Source Selection Evaluation Boards (SSEBs) as Source
Selection Evaluation Panels (SSEPs).
12
had assigned Constellation West a meets the standard. Specifically, the SSEB stated in
its evaluation that:

The Offeror’s proposal lacks detailed information on a number of
components within this area. There is a distinct lack of information regarding
the understanding of needs forecasting of industry and customer’s future
needs, and how to transition the customer to a better state.

The SSEB assigned two weaknesses under SOW 3.2.4.9 and SOW 3.2.4.12
based on Constellation West’s failure to provide evidence of relevant “enterprise” level
experience. With respect to SOW 3.2.4.9, the SSEB stated in its evaluation that:

The Offeror’s proposal describes experience performing operations,
monitoring, and analysis of something less than enterprise level support.

The Offeror’s proposal, page 75, cites: “. . . [redacted] ([redacted]%) of TCW
[Team Constellation West] [personnel] has enterprise operations, event and
performance monitoring, event management, and analysis experience for
the IC-DOD enterprise. . .”.

The Offeror’s proposal, pages 75-77, cites: “. . . TCW has demonstrated its
approach to enterprise operations, event monitoring and management,
performance monitoring, and analysis on the Advanced Server
Management Program for IRS [Internal Revenue Service]. . . TCW prime
contractor Constellation West provided continuous, 24x7x365 monitoring
and management of customer operating systems, incident management
and escalation including IT security coordination and execution of
maintenance tasks in the customer’s infrastructure utilizing ITIL® change
management processes . . . TCW prime contractor Constellation West
provided remote management of 3,000+ servers using BMC products for
event management and incident management via warning and alert
notifications . . . TCW performed monitoring, troubleshooting, and patch
management support for MS Operating System (OS) server performance
and VMware ESX Host platforms . . . TCW provided 24/7/365 enterprise
support for the IRS. When personnel are not on-site, they are called and
within 1 hour of notification begin incident response . . . TCW prime
contractor Constellation West delivered multiple escalation options,
including when a Level 2 support person identified that a change to a
configuration item was necessary to resolve the incident. Additional
escalation levels include ‘under investigation’ when an incident has not
been resolved within 48hrs or SLA [Service Level Agreement] time
frame. . .”.

(omissions and second alteration in original). With respect to SOW 3.2.4.12, the SSEB
stated in its evaluation that:

13
The Offeror’s proposal describes experience implementing data backup,
disaster recovery (DR), and continuity of operations plan (COOP) at less
than an enterprise in accordance with SOW 3.2.4.12.

The Offeror’s proposal, page 80, cites: “. . . [redacted] ([redacted]%) of TCW
companies provide COOP, DR, operations for federal customers.
Constellation West outlined the COOP/DR plan for USSTRATCOM [United
States Strategic Command] and provides COOP/DR support to
USSTRATCOM, USAF [United States Air Force], VA [Department of
Veterans Affairs], EPA [Environmental Protection Agency], and USDA
[United States Department of Agriculture]. IT Contingency Planning is an
element in a larger Continuity Planning Program that includes Contingency
Planning and DR, BIA [Business Impact Analysis] and Testing of Consulting
in COOP, DR, and Contingency Plans. TCW has extensive experience
supporting federal Continuity Programs, including developing and testing
Contingency and DR Plans and integrating them into a synergistic
framework with other contingency capabilities to protect agencies from
natural, technological, and human risks. Given the criticality of IC missions,
TCW understands the importance of ensuring that DIA can effectively
recover and restore its IT systems to full operational status if they are
disrupted for any reason using standardized and comprehensive DR/COOP
policies and guidelines consistent with industry best practices. Integrating
backup DR/COOP planning into the SDLC [Software Development Life
Cycle] process reduces risks and costs by assuring that these requirements
are built into the solution from the start. TCW has demonstrated support for
planning, execution and management of enterprise data backup, DR, and
COOP operations and support services . . .”.

The Offeror’s proposal, page 81, cites: “. . . DHS [Department of Homeland
Security] – Constellation West led the initial SIEM fielding operations and
support at US-CERT [United States Computer Emergency Readiness
Team] and NSD [National Security Deployment (division)]. Product
selection for DR/COOP was decided after understanding the requirements,
capabilities and limitations of the end users. Subsequent configuration
allowed the key performance parameters and SLAs to be met for the
collection, storage and reviewing of events in the unlikely event of a
manager shutdown or loss of primary process location . . . DHS/DoD – For
US-CERT and DARPA [Defense Advanced Research Projects Agency]
Constellation West utilized VMWARE’s snapshots and VMOTION for both
DR and Continuity of Operations. All functional testing took place in the
development network on resources dedicated to development and staging
prior to activation into operations . . . DHS/DoD – At USSTRATCOM, AFWA
[Air Force Weather Agency], USDA, and EPA, Constellation West verified
DR/COOP and backup functions in the operating environment were
accomplished as part of the monthly maintenance cycle and integrated into
other periodic requirements to minimally disrupt operations. If, during daily
operations a system failed, we would restore files from backup. Care was

14
 taken to restore resources while any issues or discrepancies documented
into the knowledge base for facilitating lessons learned . . . DHS/DoD –
TCW developed lessons learned for exercises and operational activation of
backup/recovery and DR/COOP processes. Our knowledge gained from
documenting successes and failures is presented in the knowledge base
and incident/ticket management system . . .”.

(omissions in original).

The six significant weaknesses and five of the remaining weaknesses assigned by
the SSEB were based on the various components of SOW 3.2.6. The SSEB assigned a
significant weakness based on what it referred to in its evaluation as “SOW 3.2.6.2,”
stating in the evaluation that: “The Offeror’s proposal lacks details on the Offeror’s
approach to security technical assessment and insider threat assessment, and lacks
relevant details on experience for any past, or current projects.” The SSEB assigned a
second significant weakness based on what it referred to in its evaluation as “SOW
3.2.6.5,” stating in the evaluation that: “The Offeror’s proposal lacks significant detail and
provides no information on an approach to or experience in providing Computer Network
Defense (CDN) Service Provider (SP) & inspection services for on-going or completed
projects.” The SSEB assigned a third significant weakness based on what it referred to in
its evaluation as “SOW 3.2.6.6,” stating in the evaluation that: “The Offeror’s proposal
lacks significant detail and provides no information on an approach to or experience in
providing vulnerability assessment, metrics consolidation and reporting activities for on-
going or completed projects.” The SSEB assigned a fourth significant weakness based
on what it referred to in its evaluation as “SOW 3.2.6.8,” stating in the evaluation that:
“The Offeror’s proposal lacks significant detail and provides no information on an
approach to or experience in providing Information Assurance tools administration and
maintenance for on-going or completed projects.” The SSEB assigned a fifth significant
weakness based on what it referred to in its evaluation as “SOW 3.2.6.10,” stating in the
evaluation that: “The Offeror’s proposal lacks detailed information within, or does not
seem to address PKI procedures and guidance.” The SSEB assigned a sixth significant
weakness based on what it referred to in its evaluation as “SOW 3.2.6.11,” stating in the
evaluation that: “The Offeror’s proposal lacks details on the Offeror’s approach to IA cross
domain solutions and support, and lacks relevant details on any experience for a past or
current project.”

The SSEB assigned the first weakness related to SOW 3.2.6 on what it referred to
in its evaluation as “SOW 3.2.6.1,” stating in the evaluation that:

The Offeror’s proposal describes an approach but lacks detail on
experience providing cybersecurity information assurance (IA) policy
development, security compliance and certification and accreditation (C&A)
activities for on-going or completed projects.

The Offeror’s proposal, page 96, cites: “. . . Our IT Security Policy Team will
focus on the development, maintenance and improvement of the IT Security

15
 Policy for DIA that is aligned with DoD Directives, ICD, CJCSI, FISMA and
DIA policy . . .”.

(omissions in original). The SSEB assigned a second weakness related to SOW 3.2.6
based on what it referred to in its evaluation as “SOW 3.2.6.3,” stating in the evaluation
that:

The Offeror’s proposal details the Offeror’s approach to security
architecture development and engineering but lacks relevant details on
experience for any past, or current projects.

The Offeror’s proposal, page 96, cites: “. . . Our Security Architecture Team
will develop, maintain and improve a TRM [Technical Reference Model] that
assess [sic] products, technologies and standards for use within the
enterprise. The Team will analyze products, technologies and standards
that are proposed for use within the Enterprise. The Team then documents
the results of the analysis, and provides a recommendation for addition or
exclusion to the TRM, and a rational [sic] for the recommendation. . .”.

The Offeror’s proposal, page 96, cites: “. . . works closely with the Security
Architecture Team to develop common deployment standards and
methodologies for products and technologies used within the Enterprise.
The Team develops, maintains, and improves upon specific product
technology and standard implementation guides that illustrate how they are
to be configured and used within the Enterprise to ensure security strategy
alignment and standardization. . .”.

(omissions in original). The SSEB assigned a third weakness related to SOW 3.2.6 based
on what it referred to in its evaluation as “SOW 3.2.6.4,” stating in the evaluation that:

The Offeror’s proposal lacks description of their depth and breadth of
experience and details of their expertise on similar on-going and completed
projects as defined in M-3.2.2 Sub-factor 2: Technical Experience and
Expertise mapped to functional areas listed in SOW.

The Offeror’s proposal, pages 96-97, cites: “. . . The Information Assurance
Training Team develops, maintains and improves user IT Security
Awareness and role based training for personnel with IT Security related
responsibilities. The Team also provides reporting for annual training
requirements . . .”.

(omissions in original). The SSEB assigned a fourth weakness related to SOW 3.2.6
based on what it referred to in its evaluation as “SOW 3.2.6.7,” stating in the evaluation
that:

The Offeror’s proposal describes an approach but lacks detail on
experience providing Computer Network Defense (CND) operations,
monitoring and analysis for on-going or completed projects.

16
 The Offeror’s proposal, page 16, cites: “. . . At USSTRATCOM,
USTRANSCOM [United States Transportation Command], AFWA. [sic]
MCTSSA [Marine Corps Tactical Systems Support Activity], IRS, NITC
[National Information Technology Center], EPA, and VA we provide a wide
range of cyber security to include policy, documentation, information
assurance and CND. . . ”.

(omissions in original). The SSEB assigned a fifth weakness related to SOW 3.2.6 based
on what it referred to in its evaluation as “SOW 3.2.6.9,” stating in the evaluation that:

The Offeror’s proposal lacks description of their depth and breadth of
experience and details of their expertise on similar on-going and completed
projects as defined in M-3.2.2 Sub-factor 2: Technical Experience and
Expertise mapped to functional areas listed in SOW.

The Offeror’s proposal, page 97, cites: “. . . The SOC [Security Operations
Center] conducts security monitoring and analysis services for the
enterprise. The SOC monitors the SEIM and Antivirus tools 24/7/356 [sic]
and records security events. When events are recorded the SOC conducts
preliminary investigations of those events to determine if the event is an
actual security issue. When an issue does arise the SOC escalates the
incident to the Incident response team for a formal and thorough
investigation. When false positives are found the SOC works with the
Support Teams and ISO’s [International Organization for Standardization]
to ensure they are remediated. The SOC will also utilize predictive analysis
tools to assist with the investigation and escalation of events security events
[sic] in a proactive fashion. The Incident Response (IR) Team conducts
formal investigation of security events and incidents that have been
escalated by the SOC. The IR Team record, [sic] tracks, contains,
remediates and reports all incidents. The IR Team facilitates and
coordinates intra and intra [sic] agency teams as necessary until incident
closure . . .”.

(omissions in original).

On July 10, 2015, DIA informed Constellation West that it was not selected for an
award. In its unsuccessful offeror notification later sent to Constellation West on July 17,
2015, DIA stated that Constellation West’s proposal was not selected because “it did not
represent the best value to the Government based on a thorough review of your proposal
against the stated criteria in Section M of the RFP.”

On August 14, 2015, Constellation West filed a bid protest complaint in this court
in case number 15-876C. In its complaint, Constellation West alleges that DIA’s
evaluation of its proposal was arbitrary, capricious, and contrary to law because it differed
significantly from the process disclosed in the solicitation. In particular, Constellation West
alleges that it was assigned weaknesses under M-3.2.1.1e, M-3.2.1.2e, SOW 3.2.4.9,
SOW 3.2.4.12, and SOW 3.2.6 based on criteria not stated in the solicitation.

17
Constellation West alleges that DIA’s actions have substantially prejudiced it because
had DIA not acted improperly Constellation West would have been awarded an E-SITE
contract. Constellation West’s requests include that the court enjoin DIA from proceeding
with performance under the E-SITE contract and that the court order DIA to re-evaluate
its proposal in accordance with the stated criteria in the solicitation.

Sev1Tech

Like Constellation West, protestor Sev1Tech timely submitted the first set of
volumes of its proposal on April 18, 2014, and the second set of volumes on May 16,
2014. DIA assigned Sev1Tech’s proposal a Substantial Confidence (blue) rating for the
Past Performance Factor, a Good (purple) for the Management/Technical Factor, and a
Pass (green) for the Security/Supply Chain Risk Management Factor. With regard to
price, however, DIA concluded that because the pricing spreadsheet Sev1Tech submitted
with its proposal was incomplete, omitting labor rates for [redacted] of the 2,890 cells
contained in the spreadsheet, and because DIA “was not able to calculate projected rates
for these labor categories from the face of the proposal,” Sev1Tech’s total evaluated price
could not be determined.

The [redacted] labor rates Sev1Tech omitted from the proposal were for option
year four in skill levels 1, 2, and 3 of the Systems Architect labor category in the United
States Group 5 location. In a portion of the pricing volume of its proposal titled
“Escalation,” Sev1Tech, however, indicated the following:

The BLS Employment Cost Index Table 5. COMPENSATION (NOT
SEASONALLY ADJUSTED): Employment Cost Index for total
compensation, for private industry workers, by occupational group and
industry for the 12 months ending March 2014 reflects [redacted]% for the
Professional and Related Occupational group. All expectations and
predictions show the economy improving over the next several years. By
year five of the contract, the economy should be supporting annual
employment cost index numbers of [redacted]%. These numbers allow us
to maintain annual salary increases for our existing staff, while keeping the
labor escalation at [redacted]% per year over contract life.

(capitalization in original).

An April 27, 2015 MFR titled “Contracting Officer’s Record of Decisions to Clarify
Incomplete Price Volumes for the Enhanced Solutions for the Information Technology
Enterprise (E-SITE) solicitation” prepared by the contracting officer, noted that eight price
proposals, including Sev1Tech’s, were missing labor ceiling rates.3 For the other seven
offerors, the MFR stated:

3This April 27, 2015 MFR is distinct from the two other April 27, 2015 MFRs discussed
above, titled “Management/Technical Evaluation Process” and “Past Performance
Evaluations and Management/Technical Evaluation Rating Differences.”
18
 the Government could ascertain the Offerors’ intended prices by calculating
the intended escalation rates to the hundredth of the percentage. The
Government did take into account rounding errors in the calculations. The
intended prices were apparent from the face of the proposal. Clarifications
were conducted with these Offerors.

The MFR went on to state:

3. The Government was unable to ascertain the intended unit ceiling prices
for the Offeror Sev1Tech.

4. The Government attempted to estimate the missing unit ceiling prices for
the Offeror Sev1Tech using three different estimation methods. All three
methods were unsuccessful.

a. The price proposal summary was researched, and the Offeror stated
that and [sic] escalation of [redacted]% was chosen. When the
Government attempted to verify this for the Systems Architect labor
category, escalation rates varied from [redacted]% to [redacted]%.

b. Next, five random overseas labor categories and five CONUS
[Continental United States] labor categories were selected for
analysis from Sev1Tech’s Price spreadsheet. It was found, with
consideration for minor rounding errors being acceptable, that the
majority of the labor categories randomly sampled yielded an
approximate [redacted]% escalation as proposed. However, there
were numerous anomalies found within multiple labor categories and
at least one group/location within each of those labor categories that
deviated from the proposed [redacted]% escalation. There was no
discernable pattern among the randomly sampled labor rates for the
Government to determine exactly what the escalation for all
incomplete rates was intended to be.

c. Lastly, escalation rates for all Group 5 labor category ceiling rates
were estimated to determine if there was a discernable pattern
among those rates. It was again found that the majority of rates in
the Group 5 location adhered to the proposed [redacted]% escalation
but there were nine (9) instances of anomalies within the Group 5
escalation rates found. The escalation rates determined to be
anomalies ranged from [redacted]% to [redacted]%. There was no
discernable pattern among the Group 5 escalation rates for the
Government to determine exactly what the escalation for all the
incomplete rates was intended to be.

5. Based on the inconsistencies in escalation rates among all three
methods, the Government determined that Sev1Tech’s intended price could
not be ascertained from the face of the proposal. The Contracting Officer

19
 determined this to be a material deficiency and did not conduct clarifications
with Sev1Tech.

DIA’s attempts discussed in the April 27, 2015 MFR to determine what Sev1Tech
intended to propose for the missing labor rates were documented in an earlier MFR, dated
April 23, 2015 also prepared by the contracting officer, titled “Contracting Officer’s Record
of Incomplete Price Volume for the Enhanced Solutions for the Information Technology
Enterprise (E-SITE) solicitation, RFP number HHM402-14-R-0002, for Offeror
Sev1Tech.” The April 23, 2015 MFR begins by noting the [redacted] missing labor rates
in Sev1Tech’s pricing spreadsheet. The MFR also notes Sev1Tech’s statement in the
price volume of its proposal that it would keep “labor escalation at [redacted]% per year
over contract life.” The MFR then states that DIA first attempted to estimate Sev1Tech’s
[redacted] missing labor rates using the following table, reproduced as it appeared in the
MFR:

20
 [Redacted]

The MFR further states that DIA next randomly selected five labor categories from
overseas locations and five from United States locations from Sev1Tech’s pricing
spreadsheet to perform a similar analysis. According to the April 23, 2015 MFR:

It was found, with consideration for minor rounding errors being acceptable,
that the majority of the labor categories randomly sampled yielded an
approximate [redacted]% escalation as proposed. However, there were
numerous anomalies found within multiple labor categories and at least one

21
 group/location within each of those labor categories that greatly deviated
from the proposed [redacted]% escalation. There was no discernable
pattern among the randomly sampled labor rates for the Government to
determine exactly what the escalation for the incomplete rates should be[.]

For example, an attachment to the MFR shows that for the Cybersecurity Officer labor
category in the United States Group 4 location, five of the fifteen possible escalation rates
deviated greatly from [redacted]%, with a low of [redacted]% and a high of [redacted]%.
DIA then examined escalation rates for all labor categories in the United States Group 5
location. According to the MFR,

It was again found that the majority of rates in the Group 5 location adhered
to the proposed [redacted]% escalation but there were nine (9) instances of
anomalies within the Group 5 escalation rates found. The escalation rates
determined to be anomalies ranged from [redacted]% to [redacted]%. There
was no discernable pattern among the Group 5 escalation rates for the
Government to determine exactly what the escalation for the incomplete
rates was intended to be.

“Based on the inconsistencies in escalation rates among all three methods,” DIA
concluded that Sev1Tech’s intended labor rates for the missing cells could not be
estimated “from the face of the proposal.” The MFR further stated: “It is also the
Government’s opinion that this is a material deficiency and is not a minor or clerical error
that can be resolved during clarification since the intended offer is not apparent on the
face of the proposal.” The MFR concluded by stating that because the missing rates were
a material failure “the Contracting Officer has determined that the Sev1Tech Price
Proposal as [sic] incomplete and is hereby excluded from further competition for an E-
SITE IDIQ award.”

On July 10, 2015, DIA informed Sev1Tech that it had not been selected for an
award. In a July 17, 2015 letter to Sev1Tech, DIA stated that Sev1Tech’s proposal was
not eligible for an award based on the following deficiency:

Upon evaluation of the Sev1Tech submitted Price proposal, Volume V
[Price], it was discovered that a total of [redacted] individual labor category
rates were not proposed. Cells (US Price Groups tab) H642:H644 were
displayed as blank. Pursuant to the solicitation, offerors were required to
propose binding ceiling rates for these cells. The Government attempted to
discern the Offeror’s intended price but was ultimately unable to determine
the Offeror’s intended price from the face of the proposal. The price
proposal was assigned a deficiency as the failure to propose binding ceiling
prices for the subject labor categories constitutes a material failure to meet
a Government requirement.

As noted in the April 27, 2015 MFR, seven offerors in addition to Sev1Tech
submitted proposals with incomplete pricing spreadsheets: AiNET Corporation (AiNET),
DKW Communications, Inc. (DKW), Jupiter Systems Alliance (Jupiter), Progressive

22
Technologies (Progressive), Responsive Innovative Information Technology Enterprise
(RiiTE), Sotera Defense Solutions, Inc. (Sotera), and Syneren Technologies Corporation
(Syneren). As in the case of Sev1Tech, the contracting officer prepared MFRs for each
of the seven other offerors documenting DIA’s attempts to determine the missing labor
rates. In each of the MFRs, DIA applied the same three methods as were applied to
Sev1Tech’s proposal to try to establish if the offerors’ intended rates could be determined
“from the face of the proposal.” First, DIA examined the escalation rates for the non-
missing items in the specific labor category and geographic group in which the missing
cells were found. Next, it looked at the escalation rates for a random sample of five United
States and five international labor categories. Finally it looked at escalation rates for all
labor categories in the same geographic location as the missing cells. If the price portion
of the offeror’s proposal mentioned an escalation rate, DIA also looked to see if the
escalation rates in each of these methods matched the stated rate. If the offeror’s
intended prices for the missing cells could be determined through DIA’s analysis, DIA
proceeded to email the offeror asking for clarification. The clarification consisted of only
two questions:

Clarification 1. The Government found [ ] individual labor category rate[s]
[was/were] not proposed.[4] [Describes missing rates]

Question: Did you intend to provide pricing for [this/these] cell[s]?
YES or NO

(Note: If the response is NO, then a response is not required to be
provided for Clarification 2.)

Clarification 2. Based on the information provided in your proposal, the
Government believes you intended to propose [an] escalation rate[s] of
[redacted]%.[5] Using [this/these] escalation rate[s], it is apparent to the
Government that you intended to propose the rates identified below.

Question: Is the pricing that you intended to propose correctly listed
in the table below? YES or NO

(emphasis and capitalization in original). The clarification questions allowed only for a yes
or no answer. These questions were followed by a table showing the relevant labor
categories with the missing rates filled in using the DIA’s proposed escalation rates.

4This sentence in Clarification 1 was phrased slightly differently in the clarification request
sent to AiNET, which stated: “The Government found [redacted] cells G59:G62 in the
overseas tab of the price spreadsheet to be blank.”
5This sentence in Clarification 2 was phrased slightly differently in the clarification request
sent to AiNET, which stated: “Based on the information provided in your proposal, the
Government believes you intended to propose an escalation rate of [redacted]% for the
Seoul Korea location.”
23
 For the seven proposals with missing pricing cells, other than Sev1Tech, DIA
ultimately determined that it could ascertain the offerors’ intended labor rates by
calculating the intended escalation rates to the hundredth of the percentage, and that the
intended labor rates, thus, were apparent from the faces of the proposals. Therefore,
unlike for Sev1Tech, DIA requested clarifications from the other seven offerors. All seven
replied yes to both of the clarification questions. Two of the seven offerors, DKW and
RiiTE, were ultimately awarded an E-SITE contract.

The spreadsheet submitted with AiNET’s proposal included [redacted] blank cells
for the Installation Specialist labor category in the Seoul, South Korea location. In the
MFR prepared for AiNET’s proposal, DIA first noted that AiNET’s price proposal made no
mention of a proposed escalation rate. DIA then found that the escalation rates for all of
the non-missing cells in the Installation Specialist category in Seoul were [redacted]%.
Examining five random United States and five random overseas categories, DIA found
that the “large majority” of the overseas rates had escalation rates of [redacted]%, but
that there were some rates in “particular labor categories and locations that did not adhere
to the [redacted]% escalation.” Finally, DIA found that all escalation rates for all non-
missing cells for labor categories in Seoul were [redacted]%. Based on these findings,
DIA requested a clarification from AiNET as to whether they intended to utilize a
[redacted]% escalation rate in their missing cells.

The spreadsheet submitted with DKW’s proposal included [redacted] blank cells,
[redacted] for the Systems Engineer labor category in the United States Group 4 location,
[redacted] for the Systems Architect labor category in the United States Group 5 location,
and [redacted] for the Service Desk Specialist labor category in the Germany location. In
the MFR prepared for DKW’s proposal, DIA first noted that DKW’s price proposal stated
that it used an escalation rate of [redacted]%. DIA then found that the escalation rates for
all of the non-missing cells in the Systems Engineer and Systems Architect categories in
the United States Groups 4 and 5 locations were [redacted]% and that those for the
Service Desk Specialist category in Germany ranged from [redacted]% to [redacted]%
with an average escalation rate of [redacted]%. Examining five random United States and
five random overseas locations, DIA found a [redacted]% escalation rate was used for
each location. Finally, DIA found that the escalation rates for all non-missing cells in the
United States Group 4, United States Group 5, and Germany locations were [redacted]%.
Based on these findings, DIA requested a clarification from DKW as to whether they
intended to utilize a [redacted]% escalation rate in their missing cells.

The spreadsheet submitted with Jupiter’s proposal included [redacted] blank cells
for the Satellite Field Service Technician labor category in the United States Group 2
location. In the MFR prepared for Jupiter’s proposal, DIA first found that the language in
Jupiter’s price proposal was “too vague to determine if the Offeror intended to complete
all unit pricing.” DIA then found that the only non-missing cells for the Satellite Field
Service Technician labor category in the United States Group 2 location were for the base
year and option year one and that for each of these cells the escalation rate was
[redacted]%. Examining five random United States and five random overseas labor
categories, DIA found that every category yielded the same escalation rate pattern of
[redacted]% escalation for option years one through three with a [redacted]% escalation

24
for option year four. Finally, DIA found that all escalation rates in for non-missing cells in
the United States Group 2 location followed this same pattern of a [redacted]% escalation
for option years one through three with a [redacted]% escalation for option year four.
Based on these findings, DIA requested a clarification from Jupiter as to whether they
intended to utilize an escalation rate pattern of [redacted]% escalation for option years
one through three and [redacted]% escalation for option year four in their missing cells.

The spreadsheet submitted with Progressive’s proposal included [redacted] blank
[redacted] for the base year of the Cybersecurity labor category in the Germany location.
In the MFR prepared for Progressive’s proposal, DIA first noted that Progressive’s price
proposal stated that its price escalation rate would be [redacted]% for all years. DIA then
found that the escalation rates in the Cybersecurity labor category in the Germany
location were between [redacted]% and [redacted]% for option years one and two,
between [redacted]% and [redacted]% for option year three and between [redacted]%
and [redacted]% for option year four. Examining five random United States and five
random overseas categories, DIA found that “the yearly escalation was not actually
[redacted]%, but varied between the different option years, labor categories, and
locations.” Finally, DIA found that all escalation rates for all non-missing cells in all
German labor categories followed a [redacted]%, [redacted]%, [redacted]%, [redacted]%
escalation pattern. Based on these findings, DIA requested a clarification from
Progressive as to whether they intended to utilize a [redacted]% escalation rate in their
missing cell.

The spreadsheet submitted with RiiTE’s proposal failed to include rates for
[redacted] cells for option year two of the Database Administrator labor category in the
United States Group 5 location. In the MFR prepared for RiiTE’s proposal, DIA first noted
that RiiTE’s price proposal stated that price escalation would be [redacted]% for option
year one, [redacted]% for option year two, [redacted]% for option year three and
[redacted]% for option year four. DIA then found that the escalation rates that could be
determined for the non-missing cells in the Database Administrator category for the
United States Group 5 location were [redacted]% for option year one and [redacted]% for
option year four. Examining five random United States and five random overseas
categories, DIA found that the yearly escalation rates were [redacted]% for option year
one, [redacted]% for option year two, [redacted]% for option year three and [redacted]%
for option year four. Finally, DIA found the escalation rates for all non-missing cells in the
United States Group 5 location were [redacted]% for option year one, [redacted]% for
option year two, [redacted]% for option year three and [redacted]% for option year four.
Based on these findings, DIA requested a clarification from RiiTE as to whether they
intended to utilize an escalation rate of [redacted]% for the missing option year two cells.

The spreadsheet submitted with Sotera’s proposal included [redacted] blank cells
for the Program Manager labor category in the Germany location. In the MFR prepared
for AiNET’s proposal, DIA first noted that Sotera’s price proposal proposed an escalation
rate of [redacted]%. DIA then found that the escalation rates for all of the non-missing
cells were [redacted]% in level one, [redacted]% in level two, and [redacted]% in level
three and four. Examining five random United States and five random overseas
categories, DIA found that “the yearly escalation was not actually [redacted]%, but varied

25
between the different option years, labor categories, and locations.” Finally, DIA found
that all escalation rates for all non-missing cells in Germany categories followed the
escalation pattern of [redacted]% in level one, [redacted]% in level two, and [redacted]%
in level three and four. Based on these findings, DIA requested a clarification from AiNET
as to whether they intended to utilize and escalation pattern of [redacted]% in level one,
[redacted]% in level two, and [redacted]% in level three and four in their missing cells.

The spreadsheet submitted with Syneren’s proposal failed to include rates for
[redacted] cells, [redacted] for the System Administrator labor category in the United
States Group 4 location and [redacted] for the option year four of the Network Engineer
labor category in the United Kingdom location. In the MFR prepared for Syneren’s
proposal, DIA first noted that the language in the price volume of Syneren’s proposal was
“too vague to determine if the Offeror intended to complete all unit pricing.” DIA then found
that the escalation rates for all of the non-missing cells in the System Administrator
category in the United States Group 4 location were [redacted]% and that, for the Network
Engineer category in the United Kingdom, all escalation rates were [redacted]% for option
year one, [redacted]% for option year two, [redacted]% for option year three, and
undeterminable for option year four because all labor rates for year four were missing.
Examining five random United States and five random overseas categories, DIA found
that yearly escalation rate was [redacted]% for all United States pricing group locations
and that the majority of overseas pricing groups followed a pattern of [redacted]%
escalation for option year one, [redacted]% for option year two, [redacted]% for option
year three, and [redacted]% for option year four, but that there were also “a number of
rates within multiple Overseas Labor Categories that did not follow this pattern and
appeared to be random in nature.” Finally, DIA found that all escalation rates for all non-
missing cells in the United States Group 4 location were [redacted]% and that price
escalation for the United Kingdom location followed the [redacted]%, [redacted]%,
[redacted]%, [redacted]% escalation pattern “with exception for the System Administrator
labor category which followed a straight [redacted]% escalation rate between all levels
and option years.” DIA noted that the missing rates in the United Kingdom location all
involved option year four and that “[w]hile there is an apparent lack of consistency within
the United Kingdom labor rates, all Option Year 4 rates with the United Kingdom labor
rates is [sic] slated to have a [redacted]% escalation from the Option Year 3 rate
regardless of being a part of the [redacted]%, [redacted]%, [redacted]%, [redacted]%
pattern or the [redacted]%, [redacted]%, [redacted]%, [redacted]% pattern.” DIA thus
concluded that Syneren’s intended rates for option year four of the Network Systems
Administrator category in the United Kingdom location could be determined “from the face
of the proposal due to the found [redacted]% escalation rate for all Option Year 4 labor
categories with the United Kingdom location.” Based on these findings, DIA requested a
clarification from Syneren as to whether they intended to utilize an escalation rate of
[redacted]% for both the missing United States and United Kingdom location rates.

Sev1Tech, unlike Constellation West, first filed a protest on July 22, 2015 with the
Government Accountability Office (GAO) contesting DIA’s awards under the E-SITE
solicitation. On August 18, 2015, the GAO dismissed Sev1Tech’s protest on the grounds
that a protest of the E-SITE solicitation had subsequently been filed in the United States

26
Court of Federal Claims by another disappointed offeror.6 On August 24, 2015, Sev1Tech
filed its complaint in this court in case number 15-923C. In its complaint, Sev1Tech
alleges that DIA’s actions were arbitrary, capricious, and in violation of law on three
grounds. First, Sev1Tech alleges that the proposed labor rates for the missing cells in its
proposal were obvious on the face of the proposal because Sev1Tech stated in its Price
Volume that it was “keeping the labor escalation at [redacted]% per year over contract
life.” Sev1Tech alleges that DIA’s failure to consider information it alleges was obvious
on the face of Sev1Tech’s proposal was arbitrary and capricious and violated the
Competition in Contracting Act (CICA), the Federal Acquisition Regulations (FAR), and
the evaluation criteria stated in the solicitation. Second, Sev1Tech alleges that the
[redacted] missing cells in its price proposal constituted only a “minor irregularity” and that
DIA’s decision not to exercise its discretion under section L.3 of the solicitation and FAR
52.215-1(f)(3) (2015) to “waive informalities and minor irregularities in proposals received”
was arbitrary and capricious. Third, Sev1Tech alleges that its omission of the [redacted]
price cells constituted a “minor or clerical error” and that DIA’s failure to exercise its
discretion under FAR 15.306(a)(2) (2015) to seek clarifications from Sev1Tech was an
abuse of discretion, arbitrary and capricious, and contrary to the requirements of the
CICA, the FAR, and the solicitation. Sev1Tech alleges it was prejudiced by each one of
these alleged failures by DIA. Sev1Tech’s requests include that the court order DIA to re-
evaluate Sev1Tech’s pricing spreadsheet taking into account the statement in
Sev1Tech’s proposal that Sev1Tech was “keeping the labor escalation at [redacted]%
per year over contract life” as well as “other evidence of what Sev1Tech intended to put
in the missing cells.” Sev1Tech also asks this court to direct DIA to conduct a new best-
value analysis taking into account its re-evaluation of Sev1Tech’s pricing proposal.
Finally, Sev1Tech requests an injunction prohibiting DIA from awarding any work under
the E-SITE contract until DIA has taken these actions.

Relevant to both cases, numbers 15-876C and 15-923C, the government filed an
administrative record, followed by a corrected administrative record, and then followed by
a revised administrative record. The parties in both cases filed a single joint brief
stipulation of facts. The two protestors filed separate motions for judgment on the
administrative record in their respective cases. For both cases, defendant filed a single
cross-motion for judgment on the administrative record and responses to protestors’
motions. Protestors filed separate responses to defendant’s motion, to which defendant
filed a single reply. A single oral argument was held in the two protests. At oral argument,
the court requested a supplement to the revised administrative record and additional
briefing in case number 15-923C related to DIA’s decision to request clarifications from
the seven offerors other than Sev1Tech with incomplete pricing spreadsheets, and both
Sev1Tech and the government subsequently submitted brief, supplemental filings.

6 The GAO’s decision dismissing the Sev1Tech’s protest states that the disappointed
offeror was Knowledge Systems, LLC. Knowledge Systems, LLC filed a complaint in this
court protesting the E-SITE solicitation on August 4, 2015 in case number 15-832C. The
Knowledge Systems, LLC complaint, however, was one of the protests dismissed earlier,
on September 9, 2015, after both of the protests in the above captioned cases had been
filed in this court.
27
 DISCUSSION

Rule 52.1(c) of the Rules of the United States Court of Federal Claims (2015)
(RCFC) governs motions for judgment on the administrative record. The court’s inquiry is
directed to “‘whether, given all the disputed and undisputed facts, a party has met its
burden of proof based on the evidence in the record.’” Mgmt. and Training Corp. v. United
States, 115 Fed. Cl. 26, 40 (2014) (quoting A & D Fire Prot., Inc. v. United States, 72 Fed.
Cl. 126, 131 (2006) (citing Bannum, Inc. v. United States, 404 F.3d 1346, 1356–57 (Fed.
Cir. 2005))); see also Eco Tour Adventures, Inc. v. United States, 114 Fed. Cl. 6, 21
(2013); DMS All-Star Joint Venture v. United States, 90 Fed. Cl. 653, 661 (2010).

The Administrative Dispute Resolution Act of 1996 (ADRA), Pub. L. No. 104-320,
§§ 12(a), 12(b), 110 Stat. 3870, 3874 (1996) (codified at 28 U.S.C. § 1491(b)(1)–(4)
(2012)), amended the Tucker Act to establish a statutory basis for bid protests in the
United States Court of Federal Claims. See Impresa Construzioni Geom. Domenico
Garufi v. United States, 238 F.3d 1324, 1330–32 (Fed. Cir. 2001). The statute provides
that protests of agency procurement decisions are to be reviewed under Administrative
Procedure Act (APA) standards, making applicable the standards outlined in Scanwell
Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), and the line of cases following that
decision. See, e.g., Kingdomware Techs., Inc. v. United States, 754 F.3d 923, 930 (Fed.
Cir.) (“In reviewing an agency’s action in a bid protest case, we generally apply the
Administrative Procedure Act’s ‘arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law’ or ‘without observance of a procedure required by law’
standard of review.” (citing 5 U.S.C. § 706(2)(A), (D) (2012), reh’g en banc denied (Fed.
Cir. 2014), cert. granted, 83 U.S.L.W. 3654 (U.S. June 22, 2015)); Impresa Construzioni
Geom. Domenico Garufi v. United States, 238 F.3d at 1332)); Res. Conservation Grp.,
LLC v. United States, 597 F.3d 1238, 1242 (Fed. Cir. 2010) (“Following passage of the
APA in 1946, the District of Columbia Circuit in Scanwell Labs., Inc. v. Shaffer, 424 F.2d
859 (D.C. Cir. 1970), held that challenges to awards of government contracts were
reviewable in federal district courts pursuant to the judicial review provisions of the APA.”);
Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1329 (Fed. Cir.) (citing
Scanwell Labs., Inc. v. Shaffer, 424 F.2d at 864, 868, for its “reasoning that suits
challenging the award process are in the public interest and disappointed bidders are the
parties with an incentive to enforce the law”), reh’g denied (Fed. Cir. 2004); Banknote
Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (“Under the
APA standard as applied in the Scanwell line of cases, and now in ADRA cases, ‘a bid
award may be set aside if either (1) the procurement official’s decision lacked a rational
basis; or (2) the procurement procedure involved a violation of regulation or procedure.’”
(quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at
1332)); Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.),
reh’g and reh’g en banc denied (Fed. Cir. 2003). The United States Court of Appeals for
the Federal Circuit has stated that the Court of Federal Claims’ jurisdiction over “any
alleged violation of statute or regulation in connection with a procurement or a proposed
procurement,” 28 U.S.C. § 1491(b)(1), “provides a broad grant of jurisdiction because
‘[p]rocurement includes all stages of the process of acquiring property or services,
beginning with the process for determining a need for property or services and ending
with contract completion and closeout.’” Sys. Application & Techs., Inc. v. United States,

28
691 F.3d 1374, 1381 (Fed. Cir. 2012) (emphasis in original) (quoting Res. Conservation
Grp., LLC v. United States, 597 F.3d at 1244 (quoting 41 U.S.C. § 403(2))); see also
Rockies Exp. Pipeline LLC v. Salazar, 730 F.3d 1330, 1336 (Fed. Cir. 2013), reh’g denied
(Fed. Cir. 2014); Distrib. Solutions, Inc. v. United States, 539 F.3d 1340, 1346 (Fed. Cir.)
(“[T]he phrase, ‘in connection with a procurement or proposed procurement,’ by definition
involves a connection with any stage of the federal contracting acquisition process,
including ‘the process for determining a need for property or services.’”), reh’g denied
(Fed. Cir. 2008); RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289 (Fed.
Cir. 1999) (“The operative phrase ‘in connection with’ is very sweeping in scope.”).

When discussing the appropriate standard of review for bid protest cases, the
United States Court of Appeals for the Federal Circuit addressed subsections (2)(A) and
(2)(D) of 5 U.S.C. § 706, see Impresa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d at 1332 n.5, but focused its attention primarily on subsection (2)(A). See
Croman Corp. v. United States, 724 F.3d 1357, 1363 (Fed. Cir. 2013) (“‘[T]he proper
standard to be applied [to the merits of] bid protest cases is provided by 5 U.S.C.
§ 706(2)(A) [(2006)]: a reviewing court shall set aside the agency action if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.”’” (quoting
Banknote Corp. of Am. v. United States, 365 F.3d at 1350–51 (citing Advanced Data
Concepts, Inc. v. United States, 216 F.3d 1054, 1057–58 (Fed. Cir.), reh’g denied (Fed.
Cir. 2000)), aff’d, 365 F.3d 1345 (Fed. Cir. 2004))), reh’g and reh’g en banc denied (Fed.
Cir. 2013) (alterations in original). The statute says that agency procurement actions
should be set aside when they are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,” or “without observance of procedure required by
law.” 5 U.S.C. § 706(2)(A), (D) (2012);7 see also Tinton Falls Lodging Realty, LLC v.

7 The language of 5 U.S.C. § 706 provides in full:

To the extent necessary to decision and when presented, the reviewing
court shall decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the terms
of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed;
and

(2) hold unlawful and set aside agency action, findings, and conclusions
found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short
of statutory right;

29
United States, 800 F.3d 1353, 1358 (Fed. Cir. 2015); Orion Tech., Inc. v. United States,
704 F.3d 1344, 1347 (Fed. Cir. 2013); COMINT Sys. Corp. v. United States, 700 F.3d
1377, 1381 (Fed. Cir. 2012) (“We evaluate agency actions according to the standards set
forth in the Administrative Procedure Act; namely, for whether they are ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.’” (quoting 5
U.S.C. § 706(2)(A); Bannum, Inc. v. United States, 404 F.3d at 1351)); Savantage Fin.
Servs. Inc., v. United States, 595 F.3d 1282, 1285–86 (Fed. Cir. 2010); Weeks Marine,
Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009); Axiom Res. Mgmt., Inc. v.
United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (noting arbitrary and capricious
standard set forth in 5 U.S.C. § 706(2)(A), and reaffirming the analysis of Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332); Blue & Gold
Fleet, L.P. v. United States, 492 F.3d 1308, 1312 (Fed. Cir. 2007) (“‘[T]he inquiry is
whether the [government]’s procurement decision was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”’” (quoting Bannum, Inc. v. United
States, 404 F.3d at 1351 (quoting 5 U.S.C. § 706(2)(A) (2000)))); NVT Techs., Inc. v.
United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004) (“Bid protest actions are subject to
the standard of review established under section 706 of title 5 of the Administrative
Procedure Act (‘APA’), 28 U.S.C. § 1491(b)(4) (2000), by which an agency’s decision is
to be set aside only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law,’ 5 U.S.C. § 706(2)(A) (2000).”) (internal citations omitted); Info.
Tech. & Applications Corp. v. United States, 316 F.3d at 1319 (“Consequently, our inquiry
is whether the Air Force’s procurement decision was ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’ 5 U.S.C. § 706(2)(A) (2000).”); Eco
Tour Adventures, Inc. v. United States, 114 Fed. Cl. at 22; Contracting, Consulting, Eng’g
LLC v. United States, 104 Fed. Cl. 334, 340 (2012). “In a bid protest case, the agency’s
award must be upheld unless it is ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’” Turner Constr. Co. v. United States, 645 F.3d
1377, 1383 (Fed. Cir.) (quoting PAI Corp. v. United States, 614 F.3d 1347, 1351 (Fed.
Cir. 2010)), reh’g and reh’g en banc denied (Fed. Cir. 2011); see also Tinton Falls Lodging
Realty, LLC v. United States, 800 F.3d at 1358 (“In applying this [arbitrary and capricious]
standard to bid protests, our task is to determine whether the procurement official's

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections
556 and 557 of this title or otherwise reviewed on the record of
an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject
to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole
record or those parts of it cited by a party, and due account shall be taken
of the rule of prejudicial error.

5 U.S.C. § 706.

30
decision lacked a rational basis or the procurement procedure involved a violation of a
regulation or procedure.”) (citing Savantage Fin. Servs., Inc. v. United States, 595 F.3d
1282, 1285–86 (Fed. Cir. 2010)); Glenn Def. Marine (ASIA), PTE Ltd. v. United States,
720 F.3d 901, 907 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2013); McVey Co., Inc. v.
United States, 111 Fed. Cl. 387, 402 (2013) (“The first step is to demonstrate error, that
is, to show that the agency acted in an arbitrary and capricious manner, without a rational
basis or contrary to law.”); PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 531–32
(2010) (“Stated another way, a plaintiff must show that the agency’s decision either lacked
a rational basis or was contrary to law.” (citing Weeks Marine, Inc. v. United States, 575
F.3d at 1358)).

The United States Supreme Court has identified sample grounds which can
constitute arbitrary or capricious agency action:

[W]e will not vacate an agency’s decision unless it “has relied on factors
which Congress has not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an explanation for its decision
that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of agency
expertise.”

Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (quoting
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)); see
also Tinton Falls Lodging Realty, LLC v. United States, 800 F.3d at 1358; F.C.C. v. Fox
Television Stations, Inc., 556 U.S. 502, 552 (2009); Ala. Aircraft Indus., Inc.-Birmingham
v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009), reh’g and reh’g en banc denied
(Fed. Cir. 2010); In re Sang Su Lee, 277 F.3d 1338, 1342 (Fed. Cir. 2002) (“[T]he agency
tribunal must present a full and reasoned explanation of its decision. . . . The reviewing
court is thus enabled to perform meaningful review . . . .”); Textron, Inc. v. United States,
74 Fed. Cl. 277, 285–86 (2006), appeal dismissed sub nom. Textron, Inc. v. Ocean
Technical Servs., Inc., 223 F. App’x 974 (Fed. Cir. 2007). The United States Supreme
Court also has cautioned, however, that “courts are not free to impose upon agencies
specific procedural requirements that have no basis in the APA.” Pension Benefit Guar.
Corp. v. LTV Corp., 496 U.S. 633, 654 (1990). Moreover,

A bid protest proceeds in two steps. First . . . the trial court determines
whether the government acted without rational basis or contrary to law when
evaluating the bids and awarding the contract. Second . . . if the trial court
finds that the government’s conduct fails the APA review under 5 U.S.C.
§ 706(2)(A), then it proceeds to determine, as a factual matter, if the bid
protester was prejudiced by that conduct.

Bannum, Inc. v. United States, 404 F.3d at 1351; FirstLine Transp. Sec., Inc. v. United
States, 119 Fed. Cl. 116, 126 (2014); Eco Tour Adventures, Inc. v. United States, 114
Fed. Cl. at 22; Archura LLC v. United States, 112 Fed. Cl. 487, 496 (2013).

31
 Under an arbitrary or capricious standard, the reviewing court should not substitute
its judgment for that of the agency, but should review the basis for the agency decision to
determine if it was legally permissible, reasonable, and supported by the facts. See Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43 (“The scope of
review under the ‘arbitrary and capricious’ standard is narrow and a court is not to
substitute its judgment for that of the agency.”); see also Turner Constr. Co., Inc. v. United
States, 645 F.3d at 1383; R & W Flammann GmbH v. United States, 339 F.3d 1320, 1322
(Fed. Cir. 2003) (citing Ray v. Lehman, 55 F.3d 606, 608 (Fed. Cir.), cert. denied, 516
U.S. 916 (1995)). “‘“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.”’” Weeks Marine, Inc. v. United States, 575 F.3d at 1371 (quoting 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))); Jordan Pond Co., LLC v. United
States, 115 Fed. Cl. 623, 631 (2014); Davis Boat Works, Inc. v. United States, 111 Fed.
Cl. 342, 349 (2013); Norsat Int’l [America], Inc. v. United States, 111 Fed. Cl. 483, 493
(2013); HP Enter. Servs., LLC v. United States, 104 Fed. Cl. 230, 238 (2012); Vanguard
Recovery Assistance v. United States, 101 Fed. Cl. 765, 780 (2011).

Stated otherwise by the United States Supreme Court:

Section 706(2)(A) requires a finding that the actual choice made was not
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” To make this finding the court must consider whether the decision
was based on a consideration of the relevant factors and whether there has
been a clear error of judgment. Although this inquiry into the facts is to be
searching and careful, the ultimate standard of review is a narrow one. The
court is not empowered to substitute its judgment for that of the agency.

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on
other grounds by Califano v. Sanders, 430 U.S. 99 (1977) (internal citations omitted); see
also U.S. Postal Serv. v. Gregory, 534 U.S. 1, 6–7 (2001); Bowman Transp., Inc. v.
Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974), reh’g denied, 420 U.S. 956
(1975); Co-Steel Raritan, Inc. v. Int’l Trade Comm’n, 357 F.3d 1294, 1309 (Fed. Cir. 2004)
(In discussing the “arbitrary, capricious, and abuse of discretion, or otherwise not in
accordance with the law” standard, the Federal Circuit stated: “the ultimate standard of
review is a narrow one. The court is not empowered to substitute its judgment for that of
the agency.”); In re Sang Su Lee, 277 F.3d at 1342; Advanced Data Concepts, Inc. v.
United States, 216 F.3d at 1058 (“The arbitrary and capricious standard applicable here
is highly deferential. This standard requires a reviewing court to sustain an agency action
evincing rational reasoning and consideration of relevant factors.” (citing Bowman
Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. at 285)); Lockheed Missiles &
Space Co. v. Bentsen, 4 F.3d 955, 959 (Fed. Cir. 1993); BCPeabody Constr. Servs., Inc.
v. United States, 112 Fed. Cl. 502, 508 (2013) (“The court ‘is not empowered to substitute
its judgment for that of the agency,’ and it must uphold an agency’s decision against a
challenge if the ‘contracting agency provided a coherent and reasonable explanation of
its exercise of discretion.’” (quoting Keeton Corrs., Inc. v. United States, 59 Fed. Cl. 753,

32
755, recons. denied, 60 Fed. Cl. 251 (2004), and Axiom Res. Mgmt., Inc. v. United States,
564 F.3d at 1381)), appeal withdrawn, 559 F. App’x 1033 (Fed. Cir. 2014) (internal
citations omitted); Supreme Foodservice GmbH v. United States, 109 Fed. Cl. 369, 382
(2013); Alamo Travel Grp., LP v. United States, 108 Fed. Cl. 224, 231 (2012); ManTech
Telecomms. & Info. Sys. Corp. v. United States, 49 Fed. Cl. 57, 63 (2001), aff’d, 30 F.
App’x 995 (Fed. Cir. 2002); Ellsworth Assocs., Inc. v. United States, 45 Fed. Cl. 388, 392
(1999) (“Courts must give great deference to agency procurement decisions and will not
lightly overturn them.” (citing Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743–44
(1985))), appeal dismissed, 6 F. App’x 867 (Fed. Cir. 2001), and superseded by regulation
as recognized in MVS USA, Inc. v. United States, 111 Fed. Cl. 639 (2013).

According to the United States Court of Appeals for the Federal Circuit:

Effective contracting demands broad discretion. Burroughs Corp. v. United
States, 223 Ct. Cl. 53, 617 F.2d 590, 598 (1980); Sperry Flight Sys. Div. v.
United States, 548 F.2d 915, 921, 212 Ct. Cl. 329 (1977); see NKF Eng’g,
Inc. v. United States, 805 F.2d 372, 377 (Fed. Cir. 1986); Tidewater
Management Servs., Inc. v. United States, 573 F.2d 65, 73, 216 Ct. Cl. 69
(1978); RADVA Corp. v. United States, 17 Cl. Ct. 812, 819 (1989), aff’d, 914
F.2d 271 (Fed. Cir. 1990). Accordingly, agencies “are entrusted with a good
deal of discretion in determining which bid is the most advantageous to the
Government.” Tidewater Management Servs., 573 F.2d at 73, 216 Ct. Cl.
69.

Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d at 958–59; see also Res-Care, Inc. v.
United States, 735 F.3d 1384, 1390 (Fed. Cir.) (“DOL [Department of Labor], as a federal
procurement entity, has ‘broad discretion to determine what particular method of
procurement will be in the best interests of the United States in a particular situation.’”
(quoting Tyler Const. Grp. v. United States, 570 F.3d 1329, 1334 (Fed. Cir. 2009))), reh’g
en banc denied (Fed. Cir. 2014); Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 995
(Fed. Cir. 1996); Kingdomware Techs., Inc. v. United States, 107 Fed. Cl. 226, 231 (2012)
(“‘Federal procurement entities have “broad discretion to determine what particular
method of procurement will be in the best interests of the United States in a particular
situation.”’” (quoting K-Lak Corp. v. United States, 98 Fed. Cl. 1, 8 (2011) (quoting Tyler
Const. Grp. v. United States, 570 F.3d at 1334))), aff’d, 754 F.3d 923 (Fed. Cir.), reh’g en
banc denied (Fed. Cir. 2014), cert. granted, 83 U.S.L.W. 3654 (U.S. June 22, 2015);
Cybertech Grp., Inc. v. United States, 48 Fed. Cl. 638, 646 (2001) (“The court recognizes
that the agency possesses wide discretion in the application of procurement
regulations.”); JWK Int’l Corp. v. United States, 49 Fed. Cl. 371, 388 (2001), aff’d, 279
F.3d 985 (Fed. Cir.), reh’g denied (Fed. Cir. 2002). Furthermore, according to the Federal
Circuit:

Contracting officers “are entitled to exercise discretion upon a broad range
of issues confronting them in the procurement process.” Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,
1332 (Fed. Cir. 2001) (internal quotation marks omitted). Accordingly,
procurement decisions are subject to a “highly deferential rational basis

33
 review.” CHE Consulting, Inc. v. United States, 552 F.3d 1351, 1354 (Fed.
Cir. 2008) (internal quotation marks omitted).

PAI Corp. v. United States, 614 F.3d at 1351; see also Weeks Marine, Inc. v. United
States, 575 F.3d at 1368–69 (“We have stated that procurement decisions ‘invoke[ ]
“highly deferential” rational basis review.’ Under that standard, we sustain an agency
action ‘evincing rational reasoning and consideration of relevant factors.’” (quoting CHE
Consulting, Inc. v. United States, 552 F.3d at 1354 (quoting Advanced Data Concepts,
Inc. v. United States, 216 F.3d at 1058))); Cohen Fin. Servs., Inc. v. United States, 112
Fed. Cl. 153, 162 (2013); McVey Co., Inc. v. United States, 111 Fed. Cl. at 402.

Moreover, in a negotiated procurement, contracting officers generally may be
afforded greater decision making discretion, in comparison to their role in sealed bid
procurements. See Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d at 907
(“The protestor’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.”’” (quoting Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1330
(quoting Burroughs Corp. v. United States, 223 Ct. Cl. 597–98, 617 F.2d 590, 597
(1980)))); Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1330 (“Because the bid
protest at issue here involved a ‘negotiated procurement,’ the protestor’s burden of
proving that the award was arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law is greater than in other types of bid protests.” (internal citations
omitted)); Am. Tel. & Tel. Co. v. United States, 307 F.3d 1374, 1379 (Fed. Cir. 2002)
(“Moreover, in a negotiated procurement, as in this case, this court has held that the
regulations entrust the contracting officer with especially great discretion, extending even
to his application of procurement regulations.”), reh’g en banc denied (Fed. Cir.), cert.
denied, 540 U.S. 937 (2003). The question is not whether the court would reach the same
conclusions as the agency regarding the comparison of proposals, but, rather, whether
the conclusions reached by the agency lacked a reasonable basis and, therefore, were
arbitrary or capricious, in which case, courts have a role to review and instruct.
WorldTravelService v. United States, 49 Fed. Cl. 431, 441 (2001) (“Therefore, this court’s
main task is to ensure that the [agency] examined the relevant data and articulated a
‘rational connection between the facts found and the choice made.’” (quoting Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43 (internal citations
omitted))).

The United States Court of Appeals for the Federal Circuit also has explained that
procurement officials have a greater degree of discretion when it comes to best-value
determinations, as compared to a procurement based on price alone. See Galen Med.
Assocs., Inc. v. United States, 369 F.3d at 1330 (noting that because “the contract was
to be awarded based on ‘best value,’ the contracting officer had even greater discretion
than if the contract were to have been awarded on the basis of cost alone”); see also
Croman Corp. v. United States, 724 F.3d at 1363 (noting the significant discretion
contracting officers possess when awarding contracts on the basis of best value to the
agency) (citing Banknote Corp. of Am. Inc. v. United States, 365 F.3d at 1355)); CHE
Consulting, Inc. v. United States, 552 F.3d at 1354 (citing E.W. Bliss Co. v. United States,
77 F.3d 445, 449 (1996)); Banknote Corp. of Am. Inc. v. United States, 365 F.3d at 1355

34
(“It is well-established that contracting officers have a great deal of discretion in making
contract award decisions, particularly when, as here, the contract is to be awarded to the
bidder or bidders that will provide the agency with the best value.” (citing TRW, Inc. v.
Unisys Corp., 98 F.3d 1325, 1327–28 (Fed. Cir. 1996))); Am. Tel. & Tel. Co. v. United
States, 307 F.3d at 1379; E.W. Bliss Co. v. United States, 77 F.3d at 449 (“Procurement
officials have substantial discretion to determine which proposal represents the best value
for the government.”); AM Gen., LLC v. United States, 115 Fed. Cl. 653, 697 (2014);
Amazon Web Servs., Inc. v. United States, 113 Fed. Cl. 102, 110 (2013) (“Contracting
officers are afforded ‘an even greater degree of discretion when the award is determined
based on the best value to the agency.’” (quoting Galen Med. Assocs., Inc. v. United
States, 369 F.3d at 1330)); Akal Sec., Inc. v. United States, 103 Fed. Cl. 310, 329 (2011)
(“The United States Court of Appeals for the Federal Circuit has recognized that
‘[p]rocurement officials have substantial discretion to determine which proposal
represents the best value for the government.’” (quoting E.W. Bliss Co. v. United States,
77 F.3d at 449)); Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed. Cl. 488,
514 (2009).

In E.W. Bliss Co. v. United States, the United States Court of Appeals for the
Federal Circuit offered guidance on the applicable standard of review in best value
determinations:

Procurement officials have substantial discretion to determine which
proposal represents the best value for the government. See Lockheed
Missiles & Space Co., Inc. v. Bentsen, 4 F.3d 955, 958 (Fed. Cir. 1993); cf.
Widnall v. B3H, 75 F.3d 1577 (Fed. Cir. 1996) (holding that Board of
Contract Appeals should defer to agency’s best value decision as long as it
is “grounded in reason . . . even if the Board itself might have chosen a
different bidder”); In re General Offshore Corp., B-251969.5, B-251969.6,
94-1 Comptroller Gen.’s Procurement Decisions (Federal Publications Inc.)
¶ 248, at 3 (Apr. 8, 1994) (“In a negotiated procurement, any proposal that
fails to conform to material terms and conditions of the solicitation should
be considered unacceptable and may not form the basis for an award.
Where an evaluation is challenged, we will examine the agency’s evaluation
to ensure that it was reasonable and consistent with the evaluation criteria
and applicable statutes and regulations, since the relative merit of
competing proposals is primarily a matter of administrative discretion.”)
(citations omitted).

***

Bliss’ [other challenges to the procurement] deal with the minutiae of the
procurement process in such matters as technical ratings . . . which involve
discretionary determinations of procurement officials that a court will not
second guess. See Lockheed Missiles & Space Co., 4 F.3d at 958;
Grumman Data Systems Corp. v. Widnall, 15 F.3d 1044, 1048 (Fed. Cir.
1994) (“[S]mall errors made by the procuring agency are not sufficient
grounds for rejecting an entire procurement.”).

35
E.W. Bliss Co. v. United States, 77 F.3d at 449; see also Glenn Def. Marine (ASIA), PTE
Ltd. v. United States, 720 F.3d at 908 (citing E.W. Bliss Co. v. United States, 77 F.3d at
449); COMINT Sys. Corp. v. United States, 700 F.3d at 1384 (quoting same); Tyler Const.
Grp. v. United States, 570 F.3d at 1334 (citing same); CHE Consulting, Inc. v. United
States, 552 F.3d at 1354 (quoting same); Galen Med. Assoc., Inc. v. United States, 369
F.3d at 1330 (quoting same); R & W Flammann GmbH v. United States, 339 F.3d 1320,
1322 (Fed. Cir. 2003) (citing same); Vanguard Recovery Assistance v. United States, 101
Fed. Cl. at 780; Galen Med. Assocs., Inc. v. United States, 74 Fed. Cl. 377, 383–84
(2006); JWK Int’l Corp. v. United States, 49 Fed. Cl. at 388.

A disappointed bidder has the burden of demonstrating the arbitrary and capricious
nature of the agency decision by a preponderance of the evidence. See Grumman Data
Sys. Corp. v. Dalton, 88 F.3d at 995–96; Davis Boat Works, Inc. v. United States, 111
Fed. Cl. at 349; Contracting, Consulting, Eng’g LLC v. United States, 104 Fed. Cl. at 340.
The Federal Circuit has indicated that “[t]his court will not overturn a contracting officer’s
determination unless it is arbitrary, capricious, or otherwise contrary to law. To
demonstrate that such a determination is arbitrary or capricious, a protester must identify
‘hard facts’; a mere inference or suspicion . . . is not enough.” PAI Corp. v. United States,
614 F.3d at 1352 (citing John C. Grimberg Co. v. United States, 185 F.3d 1297, 1300
(Fed. Cir. 1999)); see also Turner Constr. Co., Inc. v. United States, 645 F.3d at 1387;
Sierra Nevada Corp. v. United States, 107 Fed. Cl. 735, 759 (2012); Filtration Dev. Co.,
LLC v. United States, 60 Fed. Cl. 371, 380 (2004).

When the contracting officer’s discretion grows, so does the burden on the
protestor to overturn the contracting officer’s decisions. As described in D & S
Consultants, Inc. v. United States:

The protestor’s burden becomes more difficult the greater the degree of
discretion vested in the contracting officer. DynCorp Int’l v. United States,
76 Fed. Cl. 528, 537 (2007). Negotiated procurements afford the contracting
officer a “breadth of discretion;” “best-value” awards afford the contracting
officer additional discretion. Id. Therefore, in a negotiated, best-value
procurement, the “protestor’s burden is especially heavy.” Id.

D & S Consultants, Inc. v. United States, 101 Fed. Cl. 23, 33 (2011), aff’d, 484 F. App’x
558 (Fed. Cir. 2012); see also Galen Med. Assocs., Inc. v. United States, 369 F.3d at
1330 (noting that contracting officers have great discretion in negotiated procurements
but even greater discretion in best-value determinations than in procurements based on
cost alone); PHT Supply Corp. v. United States, 71 Fed. Cl. 1, 11 (2006) (“It is critical to
note that ‘a protestor’s burden is particularly great in negotiated procurements because
the contracting officer is entrusted with a relatively high degree of discretion, and greater
still, where, as here, the procurement is a “best-value” procurement.’” (internal citations
omitted)). “It is well-established that contracting officers have a great deal of discretion in
making contract award decisions, particularly when, as here, the contract is to be awarded
to the bidder or bidders that will provide the agency with the best value.” Banknote Corp.
of Am. Inc. v. United States, 365 F.3d at 1355 (citing TRW, Inc. v. Unisys Corp., 98 F.3d
at 1327–28; E.W. Bliss Co. v. United States, 77 F.3d at 449; and Lockheed Missiles &

36
Space Co. v. Bentsen, 4 F.3d at 958–59); see also Croman Corp. v. United States, 724
F.3d at 1363; Am. Tel. & Tel. Co. v. United States, 307 F.3d at 1379; Lockheed Missiles
& Space Co. v. United States, 4 F.3d at 958; Bahrain Maritime & Mercantile Int’l BSC v.
United States, 118 Fed. Cl. 462 (2014); Brooks Range Contract Servs., Inc. v. United
States, 101 Fed. Cl. 699, 707 (2011) (“[A] plaintiff’s burden ‘is elevated where the
solicitation contemplates award on a “best value” basis.’” (internal citations omitted));
PlanetSpace Inc. v. United States, 96 Fed. Cl. 119, 125 (2010) (citing Galen Med.
Assocs., Inc. v. United States, 369 F.3d at 1330 (“An agency’s contract award is thus
least vulnerable to challenge when based upon a best value determination.”)); Matt Martin
Real Estate Mgmt. LLC v. United States, 96 Fed. Cl. 106, 113 (2010); Serco v. United
States, 81 Fed. Cl. 463, 496 (2008) (“To be sure, as noted at the outset, plaintiffs have a
significant burden of showing error in that regard because a court must accord
considerable deference to an agency’s best-value decision in trading off price with other
factors.”).

Constellation West

In case number 15-876C, protestor Constellation West alleges that DIA acted
arbitrarily, capriciously, and contrary to law when it assigned the six significant
weaknesses and nine of the twenty six total weaknesses to the Management/Technical
portion of Constellation West’s proposal, based on criteria Constellation West asserts
were not stated in the solicitation. In particular, Constellation West alleges that it was
wrongfully assigned two weaknesses based on Sections M-3.2.1.1.e and M-3.2.1.2e of
the solicitation, two weaknesses based on SOW 3.2.4.9 and SOW 3.2.4.12, and six
significant weaknesses and five weaknesses based on SOW 3.2.6. Constellation West
further argues that it was prejudiced by DIA’s actions because it alleges it would have
had a substantial chance of receiving a contract award had DIA’s alleged errors not
occurred. In response, defendant denies that DIA relied on unstated criteria when
evaluating Constellation West’s proposal. Defendant further argues that Constellation
West has not shown, and cannot show, that it was prejudiced by any of the alleged errors.

This court in Banknote Corp. of America, Inc. v. United States summarized this
area of the law:

It is hornbook law that agencies must evaluate proposals and make awards
based on the criteria stated in the solicitation. This requirement is firmly
rooted in the Competition in Contracting Act (CICA) . . . which indicate[s]
that an agency shall evaluate competitive proposals and assess their
qualities solely on the factors and subfactors specified in the solicitation.
See 10 U.S.C. §§ 2305(a)(2)(A), 2305(a)(3)(A) (2000) . . . . It thus is beyond
peradventure that the government may not rely upon undisclosed
evaluation criteria in evaluating proposals, Acra, Inc. v. United States, 44
Fed. Cl. 288, 293 (1999), and, where appropriate, must disclose the factors'
relative importance, Isratex, Inc. v. United States, 25 Cl. Ct. 223, 230
(1992). See also Cube Corp. v. United States, 46 Fed. Cl. 368, 377 (2000);
Dubinsky v. United States, 43 Fed. Cl. 243, 266 (1999). That said, an
agency still has “great discretion in determining the scope of an evaluation

37
 factor.” Forestry Surveys and Data v. United States, 44 Fed. Cl. 493, 499
(1999). Consistent with these precepts, in a case such as this, a protester
must show that: (i) the procuring agency used a significantly different basis
in evaluating the proposals than was disclosed; and (ii) the protester was
prejudiced as a result—that it had a substantial chance to receive the
contract award but for that error.

***

[I]t is well-settled that “a solicitation need not identify each element to be
considered by the agency during the course of the evaluation where such
element is intrinsic to the stated factors.” Analytical & Research Tech., Inc.
v. United States, 39 Fed. Cl. 34, 45 (1997)[.]

Banknote Corp. of Am., Inc. v. United States, 56 Fed. Cl. 377, 386-87 (2003), aff’d, 365
F.3d 1345 (Fed. Cir. 2004) (footnote and other citations omitted); see also NVE, Inc. v.
United States, 121 Fed. Cl. 169, 180 (2015); FirstLine Transp. Sec., Inc. v. United States,
100 Fed. Cl. at 388 (“It is a fundamental principle of procurement law that an agency must
conduct its best-value analysis using the evaluation factors and subfactors specified in
the solicitation.” (citing 48 C.F.R. § 15.101–1(b)(1); 48 C.F.R. § 15.305(a); Acra, Inc. v.
United States, 44 Fed. Cl. 288, 293 (1999))); PlanetSpace, Inc. v. United States, 92 Fed.
Cl. at 536-37; NEQ, LLC v. United States, 88 Fed. Cl. 38, 47-48 (2009); PHT Supply Corp.
v. United States, 71 Fed. Cl. at 13-14.

M-3.2.1.1e

Constellation West argues that DIA relied on unstated criteria when it evaluated
the Management/Technical portion of Constellation West’s proposal as having a
weakness under Section M-3.2.1.1e, on the grounds that the proposal “lacks description
of capacity planning that includes monitoring trends of capacity usage and projecting
capacity requirements to stay ahead of demand.” The relevant portions of Section
M-3.2.1.1 states:

The offeror shall provide evidence of their in-depth understanding and ability
to support current/projected IC wide transition and integration efforts (e.g.
Intelligence Community Information Technology Enterprise (IC ITE), Joint
Information Environment (JIE). . . ) and their ability to apply new and
emerging technologies/capabilities in the following demonstration areas.

***

e. Capacity planning approaches.

Constellation West argues that Section M-3.2.1.1e does not contain a requirement to
monitor trends or project capacity. Defendant argues that DIA’s rationale stated in its
evaluation that the capacity planning approach includes monitoring trends of capacity
usage and projecting capacity requirements is a technical determination that should not
be second guessed by the court. Defendant also argues that DIA’s interpretation was

38
correct because monitoring trends of usage and projecting capacity requirements is
intrinsic to the stated criteria of providing capacity planning. Constellation West rejects
defendant’s explanation as a “post hoc excuse invented for convenience.”

“[I]t is well-settled that ‘a solicitation need not identify each element to be
considered by the agency during the course of the evaluation where such element is
intrinsic to the stated factors.’” Banknote Corp. of Am., Inc. v. United States, 56 Fed. Cl.
at 386–87 (quoting Analytical & Research Tech., Inc. v. United States, 39 Fed. Cl. at 45)
(alteration in original). “[M]onitoring trends of capacity usage and projecting capacity
requirements to stay ahead of demand” is intrinsic to the concept of “capacity planning.”
Indeed, it is difficult to understand how one could plan for future capacity without
projecting the demand for that capacity. Therefore, DIA did not apply criteria unstated in
the solicitation when it assigned Constellation West a weakness under RFP 3.2.1.1e for
failing to explain how it intended to conduct such monitoring and capacity projection.

M-3.2.1.2e

Constellation West next argues that DIA erred when it assessed the
Management/Technical portion of its proposal a weakness under Section M-3.2.1.2e of
the solicitation based on its “distinct lack of information regarding the understanding of
needs forecasting of industry and customer’s future needs, and how to transition the
customer to a better state.” Section M-3.2.1.2e required offerors to provide evidence of
their experience “[p]rovisioning services using a managed service delivery model,
quantitative and qualitative key performance indicators, established service levels, quality
assurance reviews, and performance management corrections.” Constellation West
argues, and defendant concedes, that there is no reference to “forecasting,” “future
needs,” or “transition” in Section M-3.2.1.2e. Instead, both parties agree that this
language was taken from Section M-3.2.1.2a of the solicitation, which requires evidence
of experience “[e]ffecting positive change on a customer’s operating model and systems
by understanding their needs, forecasting industry and the customer’s future, and then
transitioning them into a better state.” Constellation West notes, and review of the record
confirms, that its proposal was assessed a meets the standard for Section M-3.2.1.2a.

Defendant asserts that DIA made a scrivener’s error by accidentally cutting and
pasting the language of Section M-3.2.1.2a into its evaluation of Section M-3.2.1.2e.
Defendant cites Office Depot, Inc. v. United States, 95 Fed. Cl. 517 (2010), for the
proposition that such scrivener’s errors in evaluation reports constitute mere de minimis
errors, which are not sufficient grounds for overturning awards decisions. In a footnote,
defendant also argues that reliance upon unstated evaluation criteria is not the
appropriate analytical framework under which to review this alleged error because the
criteria upon which Constellation West was evaluated was stated, albeit in a different
section of the solicitation. Constellation West rejects defendant’s argument, asserting
instead that DIA’s evaluation was still based on unstated criteria that was, “in the context
of the other errors,” more than de minimis.

It is uncontested that DIA erred when it included the language for Section
M-3.2.1.1a in its evaluation of Constellation West’s proposal under Section M-3.2.1.2e.

39
Initially, the court agrees with defendant that DIA’s apparent cut and paste error did not
involve the use of any unstated criteria. Instead, the question is whether DIA’s error was
merely typographical or whether it affected the score Constellation West received under
Section M-3.2.1.2e. See Office Depot, Inc. v. United States, 95 Fed. Cl. at 535 (“Because
the parties and the court agree that this noted weakness is erroneous, the only question
is whether this ‘weakness’ is a mere typographical error which had no effect on the score
given Office Depot for Key Personnel [factor], or, as plaintiff argues, this erroneous
weakness contributed to an incorrect Key Personnel score for Office Depot.”).
Examination of the administrative record before this court demonstrates that three of the
four individual evaluators rated Constellation West’s proposal as meets the standard with
regard to Section M-3.2.1.2e based on the criteria actually stated in M-3.2.1.e, with each
finding that Constellation West’s proposal described experience “provisioning services
using a managed service delivery model,” and two of the three finding that the proposal
described experience using “quantitative and qualitative key performance indicators,
established service levels, quality assurance reviews, and performance management
corrections.”8 The only individual evaluator to assess a weakness under Section M-
3.2.1.2e did so by applying the standard from Section M-3.2.1.1a, finding “a distinct lack
of information regarding the understanding of needs forecasting of industry and
customer’s future needs, and how to transition the customer to a better state.”
Assignments of strengths and weaknesses were to be made based on the consensus of
the individual evaluators’ reports. Because the only individual examiner to award
Constellation West’s proposal a weakness under Section M-3.2.1.2e did so based
erroneously on the standard set forth in Section M-3.2.1.1a, rather than the one set forth
in Section M-3.2.1.2e, the only way DIA’s consensus evaluation could have reached the
same conclusion was through application of the same erroneous standard. DIA’s decision
to assign Constellation West a weakness under Section M-3.2.1.2e was, therefore, an
error. The nature of the typographical error in the present case thus differs from the one
the court found to be de minimis in the case cited by defendant, Office Depot, Inc. v.
United States, 95 Fed. Cl. 517. In Office Depot, the court found that a typographical error
present in the evaluation panel’s report was not reflected in the rating plaintiff ultimately
received for the factor because the rating was consistent with the strengths and
weaknesses noted by the individual evaluators. See id. at 535. By contrast, the
typographical error at issue here was reflected in the weakness score Constellation West
received under Section M-3.2.1.2e, which, otherwise, was inconsistent with the
comments of the individual evaluators applying the correct standard. The impact of this
error is addressed below, in the section of the opinion which addresses prejudice
regarding Constellation West.

SOW 3.2.4.9 and 3.2.4.12

Constellation West argues that its proposal was wrongfully evaluated using
unstated criteria under SOW 3.2.4.9, and SOW 3.2.4.12. Both are part of SOW 3.2.4,
which is titled “ENTERPRISE COMPUTING, STORAGE, SHARED AND FIELD
SERVICES.” (capitalization in original). SOW 3.2.4.9 states that: “The Contractor shall

8One of the two reviewers referred to the last item as “performance management
metrics,” rather than “performance management corrections.”
40
provide services to establish Enterprise operations, event monitoring and management,
performance monitoring, and analysis services,” and SOW 3.2.4.12 states that: “The
Contractor shall provide support for planning, execution and management of Enterprise
data backup, disaster recovery (DR), and continuity of operations (COOP) operations and
support.” With regard to SOW 3.2.4.9, DIA’s evaluation found that Constellation West’s
proposal “describes experience performing operations, monitoring, and analysis of
something less than enterprise level support.” With regard to SOW 3.2.4.12, DIA’s
evaluation found that Constellation West’s proposal “describes experience implementing
data backup, disaster recovery (DR), and continuity of operations plan (COOP) at less
than an enterprise in accordance with SOW 3.2.4.12.” Constellation West argues that
nowhere in the solicitation does the government provide a metric, standard, or measure
to determine what constitutes enterprise level. Constellation West further argues that it
did show evidence of experience working at enterprise level, with the Internal Revenue
Service (IRS) for SOW 3.2.4.9 and with the United States Strategic Command, the Air
Force Weather Agency, the United States Department of Agriculture, and the
Environmental Protection Agency for SOW 3.2.4.12. Constellation West further argues,
without citation, that experience serving such allegedly “large, diverse, and complex
organizations” meets the “generally accepted meaning of ‘enterprise-level support.[’]”9

Defendant responds that SOW 2.0, titled “SCOPE,” (capitalization in original), did
provide a metric for determining enterprise level, stating that “the E-SITE contract will
provide worldwide coverage” and involve “classified and unclassified programs on
multiple networks and security domains.” Defendant further argues that DIA’s
determination that Constellation West’s proposal did not evidence enterprise level
experience was a discretionary determination that the court should not second guess.
Defendant argues that DIA’s determination was correct because nothing in Constellation
West’s proposal showed experience providing support on a worldwide basis which
involved both classified and unclassified programs on multiple networks and security
domains.

The court notes that the term “enterprise” is not defined in the solicitation. The April
27, 2015 MFR titled “Management/Technical Evaluation Process” stated that, for the
purposes of SOW 3.2.4.9 and SOW 3.2.4.12, DIA treated the term as requiring offerors
to show “DIA Enterprise equivalent experience.” The April 27, 2015 “Evaluation Process”
MFR defines the “DIA Enterprise” as being “approximately:”

 20,000 DIA / 45,000 DoDIIS [Department of Defense Intelligence
Information System10] / 250,000 IC [Intelligence Community] user base,

9 Constellation West never has identified a specific source for its proposed definition of
the word “enterprise.” When asked directly by the court at oral argument for evidence to
support its claim that it had it had demonstrated enterprise-level experience, Constellation
West stated that its experience met the “industry standard,” but was unable to point to
any source for this standard other than common knowledge.
10The Department of Defense Intelligence Information System is “[t]he combination of
Department of Defense personnel, procedures, equipment, computer programs, and
41
  25 security domains across Unclassified/Secret/Top Secret,
 5 major world-wide datacenter hubs, and
 15 regional data centers,
 550 customer sites[,]
 900,000 line items of equipment in hardware asset inventory.

Just as the term “enterprise” is not defined in the solicitation, the term “DIA
Enterprise” is also not defined in the solicitation. Indeed, the term “DIA Enterprise” is not
used in the solicitation. The scope of the E-SITE solicitation described by SOW 2.0,
however, covers the same topics as those listed in the April 27, 2015 “Evaluation Process”
MFR’s definition of “DIA Enterprise.” While the “Evaluation Process” MFR states that the
“DIA Enterprise” user base included the DIA, Department of Defense Intelligence
Information System, and the Intelligence Community, the E-SITE user base described in
SOW 2.0a not only encompassed each of these three user groups, but, if anything, was
even broader, stating that:

Participating organizations will use E-SITE task orders to provide IT
services to customers across various Departments and Agencies that
include, but are not limited to, DIA, CCMDs [Combatant Commands], Air
Force, Army, Marine Corps, Navy, Coast Guard, Joint Reserve Intelligence
Program, National Command Authorities, other Department of Defense,
(DoD) Agencies, multi-national partners (e. g., coalition and alliance), and
both DoD and non-DoD members of the Intelligence Community (IC) or
other departments or agencies that consume services from the IC
members.[11]

Next, the “Evaluation Process” MFR stated that the “DIA Enterprise” included
approximately “25 security domains across Unclassified/Secret/Top Secret.” Similarly,
SOW 2.0b and SOW 2.0f noted that E-SITE involved Unclassified, Classified, and Top
Secret work, by stating: “The E-SITE contract will support both classified and unclassified
programs on multiple networks and security domains,” and “[w]hile the vast majority of
the E-SITE contract work is on top secret networks, individual task orders will specifically
identify which networks and domains (and their security level) that are to be included in
the scope of work,” respectively. Moreover, while the “Evaluation Process” MFR stated

supporting communications that support the timely and comprehensive preparation and
presentation of intelligence and information to military commanders and national-level
decision makers.” Joint Chiefs of Staff, Joint Publication 1-02, Department of Defense
Dictionary of Military and Associated Terms, 65 (Nov. 8, 2010, as amended through Nov.
15, 2015), http://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf (last visited December 15,
2015).
11Similarly, SOW 1.0a, “PURPOSE,” (capitalization in original) stated that: “The E-SITE
contract will establish the acquisition framework for delivering the full scope of information
technology services and capabilities to support the DIA, the Combatant Commands
(CCMDs), the Military Services intelligence needs, and partner agency worldwide
missions across the Intelligence Community (IC).”
42
that the “DIA Enterprise” involved approximately “5 major world-wide datacenter hubs”
and “15 regional data centers,” SOW 2.0a made clear that the E-SITE contract involved
servicing a very large, global network of IT systems, stating:

The E-SITE contract will provide worldwide coverage for IT requirements
and technical support services supporting the Government through system
design, development, fielding, and sustainment of global intelligence and
command and control (C2) assets vital to the security of the United States
(US).

SOW 2.0 did not list the exact numbers provided in the “Evaluation Process” MFR for
each of the portions of the “DIA Enterprise,” nor that it would involve “550 customer sites”
or “900,000 line items of equipment in hardware asset inventory,” but this was reasonable
given that they described the global information technology capabilities of the United
States intelligence community and the solicitation was an unclassified document posted
on the Federal Business Opportunities website. Further, that the E-SITE contract would
involve such large numbers of users, networks, and hardware should not have come as
a surprise to offerors given the breadth of user organizations described in SOW 2.0. Nor
should offerors have been surprised that the scope of the term “enterprise” in SOW
3.2.4.9 and SOW 3.2.4.12 would be coterminous with the scope of the E-SITE contract.
That, in the absence of an express definition, the term “enterprise,” as used in the SOW,
would refer to the E-SITE contract specifically, rather than to the “generally accepted”
meaning of the word enterprise, as Constellation West argues, is logical, given that the
first sentence of the SOW stated that the SOW “described the basic services contractors
must provide to support the Defense Intelligence Agency’s (DIA) Enhanced Solutions for
the Information Technology Enterprise (E-SITE) contract vehicle.”12 Thus, DIA’s
evaluation of SOW 3.2.4.9 and SOW 3.2.4.12 did not apply criteria substantially different
than that those listed in the solicitation.

While the SSEB’s evaluation report does not elaborate as to why it found that
Constellation West’s proposal had described experience at “something less than
enterprise level support” with respect to SOW 3.2.4.9 and “at less than an enterprise in
accordance with SOW 3.2.4.12,” the April 27, 2015 MFR, titled “Past Performance
Evaluations and Management/Technical Evaluation Rating Differences,” confirms that the
reason was because the proposal “lacked detailed experience on DIA Enterprise scale

12 This interpretation is also bolstered by the use of the term “enterprise” in areas of the
SOW other than SOW 3.2.4.9 and SOW 3.2.4.12. In a number of places in the SOW, the
term “enterprise,” being used as a noun, is preceded by a definite article, e.g., “[t]he
Contractor shall provide . . . continuous visibility into the types and numbers of assets
throughout the enterprise,” (SOW 3.2.1.8), “[a]s required in support of the enterprise,
services may also include . . . ,” (SOW 3.2.2.6), and “[s]ervices include, but are not limited
to . . . acquiring new approved baseline releases from the enterprise,” (SOW 3.2.4.1). (all
emphasis added). There are no instances in the SOW, however, where the term
“enterprise,” being used as a noun, is preceded by an indefinite article. This indicates that
the term “enterprise” was being used in the SOW to refer to a specific enterprise, rather
than the general concept of an enterprise, as Constellation West argues.
43
projects.” With regard to SOW 3.2.4.9, Constellation West stated in its proposal that it
had “provided 24/7/365 enterprise support for the IRS,” as part of the IRS’ “Advanced
Server Management Program.” With regard to SOW 3.2.4.12, Constellation West stated
in its proposal that it had experience providing continuity of operations and disaster
recovery support services for the United States Strategic Command, the Air Force
Weather Agency, the United States Department of Agriculture, and the Environmental
Protection Agency. DIA’s evaluation conclusion that Constellation West’s experience did
not rise to the level of the “DIA Enterprise scale projects” the solicitation called for is a
“technical rating[ ] . . . which involve[s] discretionary determinations of procurement
officials that a court will not second guess.” E.W. Bliss Co. v. United States, 77 F.3d at
449; see also Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d at 910-11
(holding that the Navy’s determination that “contracts performed by [an offeror] were of
similar scope, magnitude, and complexity to that in the Solicitation” as part of the
evaluation process “is owed deference”). Further, while Constellation West may be
correct that its experience involved support for “large, diverse, and complex
organizations,” Constellation West points to no evidence in its proposal, and the court’s
review of the record does not reveal, that its experience encompassed the broad user
base, use of classified and unclassified networks, and global reach called for to meet the
requirements of either SOW 2.0 or DIA’s definition of the “DIA Enterprise.” In sum,
Constellation West has failed to show that DIA’s decision to assess it weaknesses under
SOW 3.2.4.9 and SOW 3.2.4.12 for failing to demonstrate experience working at an
“enterprise” level was arbitrary, capricious, or contrary to law.

SOW 3.2.6

With respect to SOW 3.2.6, Constellation West argues that DIA used unstated
criteria when it assigned Constellation West six significant weaknesses and five
weaknesses for not responding to what it terms the “4-digit subfactors” of SOW 3.2.6 that
DIA used in its evaluation. According to Constellation West these “4-digit subfactors” were
not included in SOW 3.2.6 and there was no mention in SOW 3.2.6 that offerors would
be rated for “each non-existent 4-digit subfactor with the 3-digit subfactor.” In support of
its argument, Constellation West points to the language in SOW 3.2.6 that “Cybersecurity
and IA services include, but are not limited to, . . .” which preceded the list of items that
DIA would ultimately treat as the “4-digit subfactors.” (emphasis in original). According to
Constellation West, this language indicated only that these were topics that
“Cybersecurity and IA services could include,” but not that proposals would be scored
against all of the topics. (emphasis in original). Constellation West argues that DIA’s
actions “had the impact of penalizing CWI for not specifically responding to each topic
that was turned into 4 digit subfactors,” which “were only stated generally in a 3 digit
subfactor of the RFP.” (emphasis in original). Constellation West argues that its case is
analogous to Dubinsky v. United States, 43 Fed. Cl. 243 (1999), in which the court found
that evaluators had improperly used a four-tier rating system to rate offerors, rather than
the three-tier system stated in the RFP.

Defendant asserts that Constellation West’s argument “elevates form over
substance.” According to defendant, DIA’s decision to assign four digit numbers to the
elements of SOW 3.2.6 during the evaluation process did not affect the criteria upon which

44
DIA based the evaluation or introduce any new requirements to the SOW. Defendant
argues that the criteria upon which DIA based its evaluation were identical to those criteria
disclosed in the solicitation. Defendant further argues that the solicitation required offerors
to address each of these criteria, pointing to language in the solicitation stating that
offerors “shall provide evidence of the depth and breadth of their team’s experience and
details of their team’s expertise on on-going and completed projects . . . with respect to
all areas under SOW 3.2” and that “Cybersecurity and IA services include, but are not
limited to” the elements in SOW 3.2.6. Finally, defendant distinguishes Dubinsky, arguing
that the rating system used to evaluate proposals in Dubinsky contained a substantive
standard for evaluation that was different than the substantive standard of the disclosed
rating system.

The solicitation in the cases currently under consideration stated that “[i]nformation
required for proposal evaluation that is not found in its designated volume may result in
unfavorable proposal evaluation.” With regards to Management/Technical portion of
proposals, the solicitation required offerors to “provide evidence of the depth and breadth
of their team’s experience and details of their team’s expertise on on-going and completed
projects (as a prime or a subcontractor) with respect to all areas under SOW 3.2.”
(emphasis added). One of the areas under SOW 3.2 was SOW 3.2.6, which stated that:

The Contractor shall provide diverse Cybersecurity and Information
Assurance (IA) services . . . . Cybersecurity and IA services include, but are
not limited to, policy development; security technical assessment; insider
threat assessment; security architecture development; security
engineering; certification and accreditation; security compliance (such as
ICD 503 and ICD 705, DoDI 8500 IA controls and other relevant DoD and
IC policies), IA training management in accordance with DoDD 8570.1,
audit, assessment, and reporting services; Computer Network Defense
Service Provider (CNDSP) and inspection services IAW DoDD 8530.1,
Chairman of the Joint Chief of Staff Instructions (CJCSI) 6510.01E, and
CJCSM 6510.01; vulnerability assessment and management; metrics
consolidation and reporting (to include the Federal Information Security
Management Act (FISMA) requirements); computer network defense (CND)
operations, monitoring, and analysis; cybersecurity and IT systems and
tools administration and maintenance; incident response, tracking, and
resolution; cross-domain solutions support; inter-agency coordination; and
PKI procedures and guidance.

(emphasis added).

The dictionary meaning of the word “include” is “[t]o contain as part of something.”
Black's Law Dictionary 880 (10th ed. 2014). Thus, the phrase “Cybersecurity and IA
services include,” followed by a list of topics, meant that the terms Cybersecurity and IA
services contained each of the listed topics. The use of the modifying phrase “but are not
limited to” after the word “include” indicates that the list of topics could have been a partial
one, but definitely includes the items listed. See id. (“The participle including typically
indicates a partial list . . . . But some drafters use phrases such as including without

45
limitation and including but not limited to — which mean the same thing.”) (emphasis in
original). Thus, the language of the solicitation put offerors on notice that their proposals
would be evaluated on whether they “provide[d] evidence of the depth and breadth of
their team’s experience and details of their team’s expertise on on-going and completed
projects (as a prime or a subcontractor) with respect to” each one of the components
listed in SOW 3.2.6 after the words “Cybersecurity and IA services include, but are not
limited to.” These items were precisely how Constellation West was evaluated. The
following chart, a modified version of one provided by defendant, which compares the
language contained in SOW 3.2.6 of the solicitation, the April 27, 2015 MFR, titled
“Management/Technical Evaluation Process,” explaining the components that SOW 3.2.6
was broken up into for evaluation purposes, and DIA’s evaluation of Constellation West’s
Management/Technical proposal for each of the components of SOW 3.2.6 for which
Constellation West was assessed a weakness or significant weakness, is instructive:

SOW 3.2.6 of the April 27, 2015 Evaluation of Constellation West’s
Solicitation MFR Proposal
“policy “SOW 3.2.6.1 “SOW 3.2.6.1 . . . . The Offeror’s
development . . . Policy proposal describes an approach but
certification and Development; lacks detail on experience providing
accreditation; security Security cybersecurity information assurance
compliance (such as compliance (IA) policy development, security
ICD 503 and ICD 705, (policies ICD compliance and certification and
DoDI 8500 IA controls 503/705, DOD accreditation (C&A) activities for on-
and other relevant 8500); Certification going or completed projects.”
DoD and IC policies)” and accreditation”
“security technical “SOW 3.2.6.2 “SOW 3.2.6.2 . . . . The Offeror’s
assessment; insider Security technical proposal lacks details on the Offeror’s
threat assessment” assessment; approach to security technical
Insider assessment and insider threat
threat assessment” assessment, and lacks relevant
details on experience for any past, or
current projects.”
“security architecture “SOW 3.2.6.3 “SOW 3.2.6.3 . . . . The Offeror’s
development; security Security proposal details the Offeror’s
engineering” architecture approach to security architecture
development; development and engineering but
Security lacks relevant details on experience
engineering” for any past, or current projects.”
“IA training “SOW 3.2.6.4 IA “SOW 3.2.6.4 . . . . The Offeror’s
management in training proposal lacks description of their
accordance with DoDD management depth and breadth of experience and
8570.1, audit, (DoDD 8570.1 details of their expertise on similar on-
assessment, and audit/assessment/ going and completed projects as
reporting services” reporting)” defined in M-3.2.2 Sub-factor 2:
Technical Experience and Expertise

46
 mapped to functional areas listed in
SOW.

The Offeror’s proposal, pages 96-97,
cites: ‘. . . The Information Assurance
Training Team develops, maintains
and improves user IT Security
Awareness and role based training for
personnel with IT Security related
responsibilities. The Team also
provides reporting for annual training
requirements . . .’.” (second and third
omissions in original).
“Computer Network “SOW 3.2.6.5 “SOW 3.2.6.5 . . . . The Offeror’s
Defense Service Computer Network proposal lacks significant detail and
Provider (CNDSP) and Defense Service provides no information on an
inspection services Provider (CNDSP) approach to or experience in providing
IAW DoDD 8530.1, & inspection Computer Network Defense (CDN)
Chairman of the Joint services (DoD Service Provider (SP) & inspection
Chief of Staff 8530.1 (CJCSI) services for on-going or completed
Instructions (CJCSI) 6510.01E, and projects.”
6510.01E, and CJCSM CJCSM 6510.01)”
6510.01”
“Vulnerability “SOW 3.2.6.6 “SOW 3.2.6.6 . . . . The Offeror’s
assessment and Vulnerability proposal lacks significant detail and
management; metrics assessment and provides no information on an
consolidation and management; approach to or experience in providing
reporting (to include Metrics vulnerability assessment, metrics
the Federal consolidation and consolidation and reporting activities
Information Security reporting (FISMA)” for on-going or completed projects.”
Management Act
(FISMA)
requirements)”
“cybersecurity and IT “SOW 3.2.6.8 “SOW 3.2.6.8 . . . . The Offeror’s
systems and tools Cybersecurity and proposal lacks significant detail and
administration and IT systems and provides no information on an
maintenance ” tools admin and approach to or experience in providing
maintenance” Information Assurance tools
administration and maintenance for
on-going or completed projects.”
“incident response, “SOW 3.2.6.9 “SOW 3.2.6.9 . . . . The Offeror’s
tracking, and Incident proposal lacks description of their
resolution . . . inter- response/tracking/ depth and breadth of experience and
agency coordination” resolution; inter- details of their expertise on similar on-
agency going and completed projects as
coordination” defined in M-3.2.2 Sub-factor 2:

47
 Technical Experience and Expertise
mapped to functional areas listed in
SOW.

The Offeror’s proposal, page 97, cites:
‘. . . . The Incident Response (IR)
Team conducts formal investigation of
security events and incidents that
have been escalated by the SOC. The
IR Team record, [sic] tracks, contains,
remediates and reports all incidents.
The IR Team facilitates and
coordinates intra and intra [sic]
agency teams as necessary until
incident closure . . .’.” (third omission
in original).
“PKI procedures and “SOW 3.2.6.10 PKI “SOW 3.2.6.10 . . . . The Offeror’s
guidance” procedures and proposal lacks detailed information
guidance” within, or does not seem to address
PKI procedures and guidance.”

“cross-domain “SOW 3.2.6.11 “SOW 3.2.6.11 . . . . The Offeror’s
solutions support” Cross-domain proposal lacks details on the Offeror’s
solutions support” approach to IA cross domain solutions
and support, and lacks relevant
details on any experience for a past or
current project.”

(all emphasis added).

The chart shows that the criteria on which Constellation West was evaluated were
identical, or substantially similar to, the components listed in the solicitation at SOW 3.2.6.
While DIA did assign each of the components a new four digit code as part of the
evaluation process, this did nothing to alter the substance of the components. Because
the language in the solicitation required Constellation West to address each of SOW
3.2.6’s components, DIA’s decision to assign Constellation West weaknesses and
significant weaknesses for failing to do so cannot be said to have been based on
undisclosed criteria, regardless of how DIA chose to label the components during the
evaluation process.

Constellation West is not helped by Dubinsky v. United States, 43 Fed. Cl. 243,
as, in Dubinsky, the RFP stated that proposals would be evaluated against twenty three
technical specifications listed in the RFP using a three-tier rating system—(+), (0) or (-)—
in order to determine the offeror’s score for a “technical requirements” factor. See id. at
247-48 & 248 n.11. In its evaluation, the government evaluated each of these
specifications using a four-tier rating system—(++), (+), (0), or (-)—rather than the three

48
tier system described in the RFP. Id. at 247-48. The Dubinsky court found that the
government’s use of the four tier system was arbitrary and capricious because the FAR
“does not grant contracting officers carte blanche to notify offerors of one rating system
in the RFP and to then apply a different system during the evaluation of proposals.” Id. at
267 n.56 (citing Clean Florida, Inc., B-233262, 88-2 C.P.D. ¶ 411 at 2 (Comp. Gen. Oct.
28, 1988); Idaho Norland Corp, B- 230598, 88-1 C.P.D. ¶ 529 at 3 (Comp. Gen. June 6,
1988)). Constellation West argues that the present case is analogous to Dubinsky
because “contrary to the express language of the RFP, SOW 3.2.6, which was supposed
to be evaluated as a 3 digit subfactor, was broken down into eleven 4 digit subfactors
from topics that were mentioned in the subfactor in general terms.” As discussed above,
however, the components of SOW 3.2.6 that were assigned four digit numbers by DIA
during its evaluation were stated explicitly in identical or almost identical form, albeit as
part of a three digit description. Additionally, the express language of the solicitation did
not require DIA to evaluate SOW 3.2.6 as a single sub-factor, but instead stated that
offerors were to address “all areas under SOW 3.2,” and that one of those areas, SOW
3.2.6, would “include” the components of SOW 3.2.6 to which DIA later assigned four digit
numbers. Ultimately, the portion of Constellation West’s proposal addressing SOW 3.2.6
was evaluated under the same substantive criteria stated in the solicitation. The effects
of DIA’s decision to assign four digit numbers to the components of SOW 3.2.6 during the
evaluation process were not significant and did not impact the substance of the
evaluation. Also important to the discussion is that all the offerors were evaluated using
the same criteria and sub-criteria. See id. at 269-70 (finding that the government’s
decision to supplement one offeror’s technical rating with two “bonus” scores based on
criteria not stated in the solicitation improperly “created an unlevel playing field”).
Therefore, the government’s approach in Dubinsky of creating an entirely new rating
system is distinct from DIA’s evaluation of Constellation West’s proposal, which
conformed to the description in the solicitation. Moreover, the court in Dubinsky found
that the procurement at issue “was mishandled from start to finish. It was riddled with
violations of procurement regulations and arbitrary and capricious conduct by the
contracting officer.” Id. at 274. No such widespread wrongdoing has been alleged by
Constellation West.

Constellation West also argues that Lab Corp. of America Holdings v. United
States, 116 Fed. Cl. 643 (2014), and 360Training.com, Inc. v. United States, 106 Fed. Cl.
177 (2012), support its claim that DIA’s use of four digit components to evaluate the
portion of its application involving SOW 3.2.6 constituted the use of impermissible
undisclosed criteria. In Lab Corp. of America Holdings, the VA used the number of “FSS
[Federal Supply Schedule] test types listed” in offerors’ proposals as the “predominant
differentiator used in selecting” an awardee, even though “neither the RFQ nor SOW
indicated that the VA would evaluate offerors' proposals based on the number of FSS test
types listed” and the VA “insufficiently documented its technical evaluation.” Lab Corp. of
Am. Holdings v. United States, 116 Fed. Cl. at 651-52. In 360Training.com, the court
stated, “the Court cannot discern the exact process OSHA used to evaluate the
applications because there are many inconsistencies among the documents and the
contemporaneous evaluations do not match OSHA's final conclusions.” 360Training.com,
Inc. v. United States, 106 Fed. Cl. at 191. The 360Training.com court’s findings included
that the solicitation did not disclose the applicant organization’s probation status as an
49
eligibility requirement, id. at 194, and that the agency placed undue weight on past
performance. See id. at 195. In both cases cited by Constellation West, proposals were
evaluated on criteria that were not mentioned in or otherwise indicated by the solicitation.
As noted above, in the current protest, the DIA solicitation made clear that offerors were
required to address each of the components listed in SOW 3.2.6, including those for which
Constellation West was ultimately assessed a weakness or a significant weakness. DIA’s
decision to assign four digit numbers to each of those components did not alter the
substance of that requirement, the subject matter to be addressed, or otherwise introduce
new evaluation criteria, and Lab Corp. of America Holdings and 360Training.com do not
assist Constellation West.

Prejudice

The record demonstrates that DIA erred when it assigned one of the weaknesses
to the Technical/Management portion of Constellation West’s proposal, based on Section
M-3.2.1.2e of the solicitation. As noted above, however, to prove its claim Constellation
West also must show that it was prejudiced as a result of the error, i.e., “that there was a
‘substantial chance’ it would have received the contract award but for the error[ ].”
Bannum, Inc. v. United States, 404 F.3d at 1353 (quoting Info. Tech. & Applications Corp.
v. United States, 316 F.3d at 1319; Alfa Laval Separation, Inc. v. United States, 175 F.3d
1365, 1367 (Fed. Cir. 1999)). Awards under the E-SITE contract were awarded based on
a best-value analysis. Under the terms of the solicitation, DIA’s best-value analysis was
based on proposals’ prices and the ratings received for the Management/Technical and
Past Performance Factors. Constellation West does not allege that either the total
evaluated price, $[redacted], or the Past Performance rating, Satisfactory Confidence, for
its proposal were incorrectly determined. Therefore, to show that the error could have
affected DIA’s best-value analysis, let alone the award of contracts, Constellation West
must show that the error affected the Management/Technical rating it received. The
elements of the Management/Technical portion of Constellation West’s proposal were
assigned no significant strengths, fifteen strengths, twenty six weaknesses and six
significant weaknesses. It therefore received an overall rating of Marginal, meaning its
Management/Technical “proposal has one or more weaknesses which are not offset by
strengths.” The next highest possible rating Constellation West could have received for
the Management/Technical Factor was Acceptable, which was assigned if “[s]trengths
and weaknesses [under the Factor] are offsetting.” Had Constellation West not been
assigned a weakness based on Section M-3.2.1.2e, it would have received fifteen
strengths against twenty five weaknesses and six significant weaknesses under the
Management/Technical portion of its proposal. Constellation West’s strengths still would
not have come close to offsetting its weaknesses, and, thus, it still would have received
a Marginal rating for the Management/Technical Factor. Absent the error, therefore, DIA’s
best-value analysis would not have changed and Constellation West would not have

50
received an award.13 Constellation West, thus, has failed to show that it was prejudiced
as a result of DIA’s actions and its protest fails.14

Sev1Tech

In case number 15-923C, protestor Sev1Tech alleges that DIA acted arbitrarily
when it disqualified Sev1Tech’s proposal on the grounds that it was unable to determine
Sev1Tech’s intended price. In particular, Sev1Tech argues that DIA’s failure to evaluate
Sev1Tech’s proposal was arbitrary because Sev1Tech’s intended price was obvious on
the face of its proposal. Alternatively, Sev1Tech argues that, even if there were missing
information in Sev1Tech’s proposal, DIA’s refusal to exercise its discretion to waive what
Sev1Tech characterizes as a non-material, “minor irregularity” under Section L.3 of the
solicitation and FAR 52.215-1(f)(3) was arbitrary. Also, in the alternative, Sev1Tech
argues that DIA’s failure to request a clarification and give Sev1Tech the opportunity to
correct a “minor or clerical” error pursuant to FAR 15.306(a)(2) and various provisions of
the solicitation, as it did with the seven other proposals with missing price information,
was an abuse of discretion and amounted to impermissible disparate treatment.
Defendant denies all of Sev1Tech’s allegations, arguing that Sev1Tech was ineligible for
an award because it did not comply with the solicitation’s instruction to offer rates for all
labor categories and that DIA’s decision not to request a clarification from Sev1Tech was
based on careful analysis and reasonable. Defendant also denies that DIA’s decision not
to seek clarification from Sev1Tech amounted to impermissible disparate treatment.

DIA’s Refusal to Evaluate Sev1Tech’s Proposal

Initially, Sev1Tech argues that DIA’s failure to evaluate its proposal on the grounds
that its pricing information was incomplete was arbitrary because “DIA had all the
information it needed in order to determine Sev1Tech’s price.” According to Sev1Tech,

13 This conclusion is consistent with the best-value analysis that DIA, acting through the
SSAC, actually performed. The SSAC found that Constellation West’s proposal did not
represent the best value “due to its significant and other weaknesses” under the
Management/Technical Factor. In particular, it noted that the weaknesses assigned the
proposal under Management/Technical Sub-factor 1 “clearly outweighed” the assigned
strengths and that the weaknesses and significant weaknesses assigned under
Sub-factor 2 outweighed the assigned strengths. Without the weaknesses assigned under
Section M-3.2.1.2e, an element of Sub-factor 1, the four weaknesses Constellation West
would have received under Sub-factor 1 one would still outweigh its two strengths.
Further, the ratio of twenty one weaknesses and six significant weaknesses to thirteen
strengths received by Constellation West’s proposal under Sub-factor 2 would remain
unchanged. Thus, the SSAC’s best-value analysis with regard to Constellation West’s
proposal was not affected by the error under Section M-3.2.1.2e.
14At oral argument, counsel for Constellation West conceded that it could not show that
Constellation West would have received the procurement without showing that the five
weaknesses and six significant weaknesses its proposal received under SOW 3.2.6 were
erroneous.
51
DIA could have determined the prices for the [redacted], admittedly, missing cells in its
pricing spreadsheet based on information in the price volume narrative of Sev1Tech’s
proposal, which stated that Sev1Tech was “keeping the labor escalation at [redacted]%
per year over contract life,” and because Sev1Tech allegedly “used a [redacted]%
escalation rate (with rounding) through most of its proposal.” Sev1Tech argues that DIA,
therefore, could have applied a [redacted]% escalation rate to project the intended labor
rates for the missing cells, or, alternatively, treated the blank cells as “zeros,” which it
argues also would have been reasonable.

Defendant begins by arguing that Sev1Tech has conceded that it did not comply
with the solicitation’s explicit instruction that offerors “must” address all aspects of Section
M relating to price in the solicitation and include ceiling rates for all proposed option years
in the pricing spreadsheet. Defendant then argues that DIA had no obligation to attempt
to fill in Sev1Tech’s missing labor rates. Defendant further argues that DIA, nonetheless,
did make a reasonable attempt to discern the labor rates for Sev1Tech’s missing cells,
but was unable to do so after its analysis determined that Sev1Tech’s proposal did not
actually consistently apply a [redacted]% escalation rate. Defendant dismisses
Sev1Tech’s suggestion that DIA could have treated the missing cells as zeros on the
grounds that there is no evidence in Sev1Tech’s proposal that it intended to perform work
at no cost to the government and that, thus, Sev1Tech would have potentially been
entitled to seek a subsequent price adjustment had DIA done so.

The solicitation warned offerors, repeatedly, that incomplete proposals, particularly
incomplete pricing proposals, risked having the proposal rejected. Section M-1.3 states
that: “If a proposal does not substantially and materially comply with all of the
requirements of this solicitation, it will be rejected and not considered for further
evaluation.” (emphasis added). The portion of the solicitation dealing with pricing, Section
L-4.5, stated that offerors “must ensure that all aspects of the Section M, Price pertaining
to the solicitation are addressed,” and that the price volume of their proposals “must
include the ceiling rates for the base period and all proposed options per the [pricing]
spreadsheet.” (emphasis added). Any doubts as to the meaning of this language should
have been obviated by the following “Question & Answer” included with the April 16, 2014
amendment to the solicitation:

[Question:] Is offeror required to provide the ceiling rates for all group [sic]
for all labor categories or just for the group within its physical location and
labor categories available?

[Answer:] L-4.5 C answers your question. We require all pricing for
completeness.

(emphasis added). Sev1Tech, by its own admission, did not include ceiling rates for all
proposed option years in the pricing spreadsheet. Therefore, under the terms of the
solicitation, DIA was within its rights to reject Sev1Tech’s proposal. Sev1Tech cannot
point to a reason why DIA would have had an obligation to infer its missing rates from
other information in its proposal, absent the existence of disparate treatment, which is
discussed below. As defendant argues, “an agency is not required to sift through a

52
proposal in order to identify information that the offeror failed to include in the correct
place.” ST Net, Inc. v. United States, 112 Fed. Cl. 99, 110 (2013) (citing IBM Corp. v.
United States, 101 Fed. Cl. 746, 758–59 (2011) (holding that agency “was not required
to search for additional information to assist [offeror]”)).

Sev1Tech cites to Dana Corp. v. United States, 200 Ct. Cl. 200, 470 F.2d 1032
(1972), in support of its argument that DIA could have chosen to interpret the missing
cells in Sev1Tech’s proposal as an offer to perform the work at either at a price
[redacted]% greater than the previous cells or at a rate of zero, i.e., for free. In Dana
Corp., a contractor offered three specific prices based on three possible packaging
methods for equipment that was to be shipped to the government. Dana Corp. v. United
States, 200 Ct. Cl. at 205-06. The government treated these three prices as alternative
offers and noted its choice of one of them in its acceptance. See id. at 206, 214-15. By
contrast, the contractor believed it was setting out three alternatives and that the precise
method to be used would be determined by future circumstances. See id. at 206, 214.
The court noted that although the contractor “undoubtedly did not intend to offer the
[government] a choice between three prices,” the nature of the proposal must be
determined objectively rather than on subjective intent. Id. at 214. Because the contractor
failed to prove that the packaging method was dependent on the future circumstances,
as it alleged, or that the government so believed, the court found that the government’s
interpretation of the proposal as offering a choice between three prices “was not only a
reasonable interpretation but probably the only reasonable one.” Id.

Dana Corp. is distinguishable from the present case in that Sev1Tech’s offer, the
pricing spreadsheet, did not provide multiple prices for missing cells, but provided none
whatsoever. Further, the central teaching of Dana Corp., that the nature of an offer is to
be determined objectively based on the evidence available to the offeree at the time the
offer is made, cuts against Sev1Tech’s argument. In the present case, the objective
information DIA had to determine the labor rates Sev1Tech intended to offer for the
missing cells was the statement in Sev1Tech’s proposal that general economic trends
would allow it to “keep[ ] the labor escalation at [redacted]% per year over contract life”
and the labor rates Sev1Tech provided for the other non-missing cells. After finding that
Sev1Tech had not consistently applied a [redacted]% escalation rate throughout the non-
missing cells, and, indeed, that certain of the escalation rates varied by substantially more
than [redacted]%, findings which Sev1Tech does not dispute before this court, DIA, not
unreasonably, concluded that it could not determine that Sev1Tech intended to apply the
[redacted]% escalation rate to the missing cells to complete the missing pricing
information. As to Sev1Tech’s claim that it would have been reasonable for DIA to treat
the missing cells as zeros, Sev1Tech offers no evidence that it would have been
reasonable for DIA to assume that Sev1Tech would have offered to provide labor for the
[redacted] missing cells for free, particularly in light of the fact that Sev1Tech proposed
labor rates greater than zero for every other item in the pricing spreadsheet. Further, as
defendant points out, had DIA made assumptions about Sev1Tech’s missing labor rates
based on the, at best, inconclusive evidence DIA had before it, Sev1Tech would not
necessarily have been bound by the rates DIA had chosen. Instead, Sev1Tech,
potentially, could have sought reformation of the contract based on the doctrine of
unilateral mistake. See Bromley Contracting Co. v. United States, 794 F.2d 669, 672

53
(Fed. Cir. 1986) (noting that a contractor may obtain reformation of a contract after the
contract has been awarded on the grounds of unilateral mistake in circumstances in which
the contractor’s bid contained a “‘clear cut clerical or arithmetical error’” such as the
“[c]omplete omission of a cost item from the bid calculation” (quoting Ruggiero v. United
States, 190 Ct. Cl. 327, 420 F.2d 709, 713 (1970)). Thus, DIA’s decision not to infer any
particular price for the [redacted] cells Sev1Tech left empty was not arbitrary.

DIA’s Refusal to Waive the Missing Cells as a “Minor Irregularity”

Sev1Tech next argues, in the alternative, that DIA acted arbitrarily in failing to
exercise its discretion under Section L.3 of the solicitation and FAR 52.215-1(f)(3), which
both state that: “The Government may waive informalities and minor irregularities in
proposals received.” Sev1Tech alleges that the [redacted] blank cells constituted a minor
irregularity and were not material because they had only a “tiny” impact on Sev1Tech’s
overall price, involving only [redacted] of 2,890 cells in the pricing spreadsheet. According
to Sev1Tech, had it included the rates it allegedly intended to include for these [redacted]
cells, using its [redacted]% escalation rate, Sev1Tech’s total price of $[redacted] would
have increased by only $[redacted], i.e., “8/1,000ths of one percent.” Sev1Tech also
argues that price “[c]learly” was “of minimal importance in DIA’s evaluation” because there
was a “huge range” of total evaluated prices in the proposals accepted by DIA, with the
highest awarded price, $2,317,934,116.00, more than twice the lowest awarded price,
$1,121,408,539.00.

Defendant argues that the requirement that offerors offer ceiling rates in all labor
categories for all contract periods was material because failure to comply would have a
non-negligible effect on price. According to defendant, unless all rates in the pricing
spreadsheet were complete, DIA could not calculate a total proposal price and make a
best-value determination. Defendant also argues that allowing offerors to offer incomplete
pricing spreadsheets, and, thereby, avoid committing to price ceiling rates, would frustrate
DIA’s purpose for requiring offerors to state labor rates up front, which was, as stated in
the E-SITE Acquisition Plan, “to ensure competitive pricing.” Defendant rejects
Sev1Tech’s argument that its omissions were minor because they represented only a
small percentage of its total price on the grounds that the price information was important
to DIA’s overall evaluation of Sev1Tech’s offer.

The government has no obligation to waive a proposal’s defect relating to a
material term. See Bus. Integra, Inc. v. United States, 116 Fed. Cl. 328, 337 (2014). “A
solicitation term is ‘material’ if failure to comply with it would have a non-negligible effect
on the price, quantity, quality, or delivery of the supply or service being procured.”
Furniture by Thurston v. United States, 103 Fed. Cl. 505, 518 (2012) (citing Centech Grp.,
Inc. v. United States, 554 F.3d 1029, 1038 (Fed. Cir. 2009). While, as Sev1Tech points
out, the solicitation stated that price was not the most important factor in selecting
awardees, the fact remains that it was one of only three stated factors that DIA was to
consider in making its best-value determination for small business proposals. Indeed, it
is difficult to understand how a best-value determination could be made without at least
some consideration of price. Proposals were to be evaluated, and compared, on the basis
of their total price, which was to be determined by multiplying each of the labor rates

54
provided by the offerors by a corresponding quantity of hours determined by the
government for each labor category. Thus, DIA’s inability to determine Sev1Tech’s labor
rates for the [redacted] missing cells from the face of its proposal had a non-negligible
impact because it meant that a total price could not be determined for Sev1Tech’s
proposal and, therefore, the proposal could not be evaluated in the manner described in
the solicitation. Further, as defendant points out, DIA’s purpose for requiring offerors to
commit to labor rate ceilings in the pricing spreadsheet was to ensure “competitive pricing
over the course of the contract.” This goal would have been frustrated by allowing
Sev1Tech to omit labor rates for even a small number of the required labor categories.
See Bus. Integra, Inc. v. United States, 116 Fed. Cl. at 336 (finding that a solicitation’s
purpose of “providing a basis for robust competition within a pool of small businesses that
are ready and willing to provide” certain services would be frustrated if its requirement
that offerors commit to ceiling rates in all labor categories for all years were to be
considered immaterial).

DIA’s Decision Not to Seek a Clarification from Sev1Tech and Disparate Treatment

Sev1Tech also alleges that DIA acted arbitrarily when it declined to seek a
clarification from Sev1Tech regarding its missing cells pursuant to FAR 15.306(a)(2),
which states:

If award will be made without conducting discussions, offerors may be given
the opportunity to clarify certain aspects of proposals (e.g., the relevance of
an offeror's past performance information and adverse past performance
information to which the offeror has not previously had an opportunity to
respond) or to resolve minor or clerical errors.

FAR 15.306(a)(2). In its April 23, 2015 MFR regarding Sev1Tech’s missing prices, DIA
decided not to seek clarification from Sev1Tech, stating: “It is . . . the Government’s
opinion that this is a material deficiency and is not a minor or clerical error that can be
resolved during clarification since the intended offer is not apparent on the face of the
proposal.” Sev1Tech recognizes that that FAR 15.306(a)(2), as well as the three
references to clarifications in the solicitation in Sections L.3, M.2b, and M-1.8 are worded
permissively. Sev1Tech, however, cites BCPeabody Construction Services, Inc. v. United
States, 112 Fed. Cl. at 512, for the proposition that this court will review such discretion
to ensure that it was reasonably based on the particular circumstances of the
procurement. Sev1Tech argues that the present case involves an abuse of discretion
because Sev1Tech’s omissions were “obviously” clerical errors and any correction could
have been tested against its statements in its price volume and the other cells in the
spreadsheet.

As conceded by Sev1Tech, FAR 15.306(a)(2) is worded permissively, providing
that the government “may” grant offerors the opportunity to provide clarifications of “minor
or clerical errors.” Indeed, “[t]his court has repeatedly recognized the permissive nature
of this regulation in the context of negotiated procurements.” ST Net, Inc. v. United States,
112 Fed. Cl. at 109-10 (citing Mil–Mar Century Corp. v. United States, 111 Fed. Cl. 508,
534–35 (2013); Linc Gov't Servs., LLC v. United States, 96 Fed. Cl. 672, 715 (2010);

55
Chenega Mgmt., LLC v. United States, 96 Fed. Cl. 556, 586 (2010)). While this discretion
may not be total, at the very least it means that the government has no obligation to seek
clarifications when it justifiably determines that an offeror has made a material omission.
See Bus. Integra, Inc. v. United States, 116 Fed. Cl. at 337; ST Net, Inc. v. United States,
112 Fed. Cl. at 110-11. The case cited by defendant, BCPeabody Construction Services,
Inc. v. United States, 112 Fed. Cl. 502, is not to the contrary, as it involved an omission
relating to the offeror’s past work experience that “did not impair the contracting officer's
ability to evaluate [the offeror’s] fitness or price quote for the contract.” Id. at 512. Indeed,
BCPeabody explicitly distinguished ST Net, Inc. v. United States, which held that the
government had reasonably exercised its discretion not to seek a clarification, on the
grounds that “in ST Net, the protestor had omitted material pricing information.” Id. at 511
(citing ST Net, Inc. v. United States, 112 Fed. Cl. at 109-10). As discussed above,
Sev1Tech’s failure to complete the pricing spreadsheet was reasonably considered by
the agency to be a material error, which prevented DIA from evaluating the price of its
proposal in the best-value analysis in the manner described in the solicitation. Because
the omission was material, DIA did not have an obligation to request a clarification from
Sev1Tech and its decision not to do so was not arbitrary, capricious, or an abuse of
discretion. See ST Net, Inc. v. United States, 112 Fed. Cl. at 111 (“Given the clear
importance DHS placed on offerors carefully and properly providing the required
information, the court cannot say that DHS was obligated under FAR 1.602–2(b) and
15.306(a) to seek clarifications where information was missing or wrong, or that DHS's
decision to forgo clarifications was arbitrary, capricious or an abuse of discretion.”).

Sev1Tech also argues that DIA’s decision to request a clarification from the other
seven offerors, two of whom were ultimately awarded contracts, whose proposals
contained incomplete pricing spreadsheets, but not from Sev1Tech, amounted to
impermissible, disparate treatment. In its April 27, 2015 MFR titled “Contracting Officer’s
Record of Decisions to Clarify Incomplete Price Volumes for the Enhanced Solutions for
the Information Technology Enterprise (E-SITE) solicitation,” DIA stated that, for these
seven other offerors, “the Government could ascertain the Offerors’ intended prices by
calculating the intended escalation rates to the hundredth of the percentage. . . . The
intended prices were apparent from the face of the proposal. Clarifications were
conducted with these Offerors.” The memorandum went on to state:

3. The Government was unable to ascertain the intended unit ceiling prices
for the Offeror Sev1Tech.

4. The Government attempted to estimate the missing unit ceiling prices for
the Offeror Sev1Tech using three different estimation methods. All three
methods were unsuccessful.

a. The price proposal summary was researched, and the Offeror stated
that and [sic] escalation of [redacted]% was chosen. When the
Government attempted to verify this for the Systems Architect labor
category, escalation rates varied from [redacted]% to [redacted]%.

56
 b. Next, five random overseas labor categories and five CONUS labor
categories were selected for analysis from Sev1Tech’s Price
spreadsheet. It was found, with consideration for minor rounding
errors being acceptable, that the majority of the labor categories
randomly sampled yielded an approximate [redacted]% escalation
as proposed. However, there were numerous anomalies found within
multiple labor categories and at least one group/location within each
of those labor categories that deviated from the proposed
[redacted]% escalation. There was no discernable pattern among the
randomly sampled labor rates for the Government to determine
exactly what the escalation for all incomplete rates was intended to
be.

c. Lastly, escalation rates for all Group 5 labor category ceiling rates
were estimated to determine if there was a discernable pattern
among those rates. It was again found that the majority of rates in
the Group 5 location adhered to the proposed [redacted]% escalation
but there were nine (9) instances of anomalies within the Group 5
escalation rates found. The escalation rates determined to be
anomalies ranged from [redacted]% to [redacted]%. There was no
discernable pattern among the Group 5 escalation rates for the
Government to determine exactly what the escalation for all the
incomplete rates was intended to be.

5. Based on the inconsistencies in escalation rates among all three
methods, the Government determined that Sev1Tech’s intended price could
not be ascertained from the face of the proposal. The Contracting Officer
determined this to be a material deficiency and did not conduct clarifications
with Sev1Tech.

Sev1Tech argues that this explanation for the different treatment of Sev1Tech and
the other seven offerors with missing labor rates was neither coherent nor reasonable
and, therefore, DIA abused its discretion in failing to request a clarification from
Sev1Tech. As evidence of DIA’s alleged, unequal treatment, Sev1Tech points to findings
DIA made regarding AiNET, DKW, and Progressive. With respect to AiNET, Sev1Tech
notes that DIA found that “a large majority” of the overseas labor rates it sampled did not
adhere to the [redacted]% escalation rate for which DIA ultimately requested a
clarification, and that AiNET, unlike Sev1Tech did not include a narrative statement in its
proposal stating its intended escalation rate. With respect to DKW, Sev1Tech argues its
situation and DKW’s were “identical, except that DKW had many more blank cells.” 15
DKW provided an escalation rate in its proposal of [redacted]%, but, according to
Sev1Tech, in the non-blank cells, DKW’s escalation rate was sometimes more than
[redacted]%, and sometimes less than [redacted]%. With respect to Progressive,
Sev1Tech argues that, unlike for itself, DIA found that there was no escalation rate pattern
for the majority of the non-missing labor rates. Sev1Tech does not specifically address

15 As noted above, DKW’s proposal was missing [redacted] cells.
57
the other four offerors of the seven offerors from which clarification was sought, i.e.,
Jupiter, RiiTE, Sotera, and Syneren, whose proposals also contained missing labor rates.
Sev1Tech also argues that any clarification request to it from DIA would not have
amounted to impermissible discussions, rather than clarifications, because, Sev1Tech
argues, the omissions were minor or clerical errors and the United States Court of Federal
Claims has “repeatedly and expressly stated that agency communications with an offeror
to allow correction of minor mathematical errors in an offeror’s proposal are clarifications
and not discussions.” (citing DynCorp Int'l LLC v. United States, 76 Fed. Cl. at 545; Galen
Med. Assocs., Inc. v. United States, 369 F.3d at 1333; Int'l Res. Recovery, Inc. v. United
States, 64 Fed. Cl. 150, 162 (2005). Sev1Tech argues that, based on this precedent, the
government cannot argue that asking Sev1Tech whether the [redacted]% escalation rate
it allegedly stated in its price volume was meant to apply to the [redacted] missing cells
would have amounted to anything but a permissible clarification under FAR 15.306(a)(1).

Defendant responds by arguing that DIA carefully examined the price proposals of
each of the eight offerors with missing labor rates to determine whether the intended rates
for the missing cells were “apparent form the face of the proposal.” DIA allegedly did so
using the same methodology for each of the eight, looking to see if there were consistent
patterns in the offerors’ escalation rates. According to defendant, in the case of each of
the seven other offerors, DIA was able to reasonably conclude that there was sufficient
consistency to calculate the intended rates for the missing cells. In the case of Sev1Tech,
however, defendant argues that DIA reasonably concluded that they were not able to
make the necessary calculations because of the “anomalies” in Sev1Tech’s escalation
rates DIA discovered applying its methodology. According to defendant, DIA reasonably
concluded it could not determine Sev1Tech’s missing prices from the face of its proposal
as it could for the other seven offerors, and, therefore, Sev1Tech was not treated
disparately vis-à-vis any other offeror.

Defendant cites to GAO decisions which have “held that when missing prices are
not ‘apparent from the face of the proposal,’ agencies cannot allow offerors to fill-in the
missing prices through ‘clarifications,’ pursuant to FAR 15.306(a), but rather, allowing
offerors to fill-in the missing prices in this circumstance would constitute ‘discussions.’”
(citing gMg Mgmt., Inc., B-409628.2, 2014 CPD ¶ 206, 2014 WL 3427148, at *3 (Comp.
Gen. July 8, 2014); Manthos Eng’g, LLC, B-401751, 2009 CPD ¶ 216, 2009 WL 3723138,
at *2 (Comp. Gen. Oct. 16, 2009)). The gMg Mgmt., Inc. case, a recent GAO decision,
involved circumstances closely analogous to those of the present case. There, as in the
above captioned case, the solicitation required offerors to complete a pricing spreadsheet
with proposed rates for various labor categories, and a disappointed offeror inadvertently
omitted rates for a number of cells in the version of spreadsheet it submitted with its
proposal. See gMg Mgmt., Inc., 2014 WL 3427148, at *1-2. The GAO held that, because
it was not clear “from the face of the proposal” what rates the offeror, gMg, intended to
propose for the omitted cells in pricing spreadsheet, “allowing gMg to correct its proposal
would represent the correction of a material proposal defect and, therefore, would have
constituted discussions.” Id. at *3. The court also notes that the GAO’s “from the face of
the proposal” standard was cited approvingly by the United States Court of Federal
Claims in an opinion cited by Sev1Tech. See DynCorp Int'l LLC v. United States, 76 Fed.
Cl. at 545 (“‘An agency may allow an offeror to correct a clerical error in a cost or price

58
proposal through clarifications, as opposed to discussions, where the existence of the
mistake and the amount intended by the offeror is clear from the face of the proposal.’”
(quoting IPlus, Inc., B298020, 2006 WL 1702640, at *4 (Comp. Gen. June 5, 2006))).
Defendant argues that, even if the court does not follow the GAO’s decisions on this issue,
it was “inherently reasonable” for DIA to have followed GAO precedent because it would
have provided disappointed protestors with a viable protest ground at the GAO, and
probably in this court as well, which according to defendant, treats GAO decisions as
“expert opinions,” quoting Am. Auto Logistics LP v. United States, 117 Fed. Cl. 137, 182
(2014), a case decided by the undersigned judge.16 The court agrees that DIA exercised
its discretion in a reasonable and not arbitrary manner, when, after trying unsuccessfully
to fill in the missing cells, DIA declined to offer Sev1Tech an opportunity to clarify its offer.

As to the protestor’s disparate treatment argument, clearly, “it is beyond
peradventure that a contracting agency must treat all offerors equally, evaluating
proposals evenhandedly against common requirements and evaluation criteria.”
Banknote Corp. of Am. v. United States, 56 Fed. Cl. at 383 (citing Seattle Sec. Servs.,
Inc. v. United States, 45 Fed. Cl. 560, 569 (2000) (citing cases)); see also Chenega
Mgmt., LLC. v. United States, 96 Fed. Cl. at 585 (“[U]nequal treatment claims are the
‘quintessential example of conduct which lacks a rational basis.’” (emphasis in original)
(quoting Hunt Building Co., Ltd. v. United States, 61 Fed. Cl. 243, 273)). “Equal treatment,
however, does not require that all proposals be treated the same.” Chenega Mgmt., LLC.
v. United States, 96 Fed. Cl. at 585 (citing FAR 1.102–2(c)(3) (“All contractors and
prospective contractors shall be treated fairly and impartially but need not be treated the
same.”)). Instead, “‘an agency action is arbitrary when the agency offered insufficient

16 While it is true that the undersigned reviews with respect GAO decisions and the
expertise offered, it is also true that this court is not bound by decisions of the GAO. See
CBY Design Builders v. United States, 105 Fed. Cl. 303, 341 (2012) (citing Centech Grp.,
Inc. v. United States, 554 F.3d at 1038 n.4 (GAO decisions are “not binding” authority,
but may be “instructive in the area of bid protests.”)); Kingdomware Techs., Inc. v. United
States, 107 Fed. Cl. at 230 n.2; Orion Tech., Inc. v. United States, 102 Fed. Cl. 218, 229
n.17 (2011) ( “While the decisions of the Comptroller General and the boards of contract
appeals are not binding on the Court of Federal Claims, their analyses may be
instructive.”), aff'd, 704 F.3d 1344 (Fed. Cir. 2013); see also Thompson v. Cherokee
Nation of Oklahoma, 334 F.3d 1075, 1084 (Fed. Cir. 2003) (“[T]he opinions of the
Comptroller General . . . while not binding, are ‘expert opinion[s], which we should
prudently consider.’” (quoting Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 201 (D.C.
Cir. 1984))), aff'd and remanded sub nom. Cherokee Nation of Oklahoma v. Leavitt, 543
U.S. 631 (2005); Glenn Def. Marine (Asia) PTE Ltd. v. United States, 97 Fed. Cl. 568,
577, dismissed, 459 F. App’x 906 (Fed. Cir. 2011); Global Computer Enters., Inc. v.
United States, 88 Fed. Cl. 350, 412 (2009) (“‘Although not binding on this court, GAO
opinions are properly used for information and guidance, given the GAO's experience and
expertise.’” (quoting Career Training Concepts, Inc. v. United States, 83 Fed. Cl. 215, 232
(2008))); Femme Comp Inc. v. United States, 83 Fed. Cl. 704, 746 (2008); Consol. Eng’g
Servs., Inc. v. United States, 64 Fed. Cl. 617, 623 (2005).

59
reasons for treating similar situations differently.’” Redland Genstar, Inc. v. United States,
39 Fed. Cl. 220, 234 (1997) (quoting Transactive Corp. v. United States, 91 F.3d 232,
237 (D.C. Cir. 1996)).

In its April 27, 2015 MFR, DIA stated that it had found Sev1Tech’s intended prices
for its missing cells were not apparent on the face of Sev1Tech’s proposal after it had
unsuccessfully “attempted to estimate the missing unit ceiling prices for the Offeror
Sev1Tech using three different estimation methods.” The three methods, as described in
the April 27, 2015 MFR, were as follows: 1) the escalation rates used in the same labor
category and geographic location as the missing prices were examined to determine if
they were the same as the escalation rates stated in the narrative of the offeror’s price
volume (Same Labor Category Method); 2) five random overseas and five random United
States labor categories were examined to determine if there was a discernable escalation
rate pattern and if it was the same as the stated escalation rate (Random Labor
Categories Method); and 3) the escalation rates for all labor categories within the same
geographic location as the missing cells were examined to determine if there was a
discernable pattern and if it was same as the stated escalation rate (Same Geographic
Area Method). An examination of the MFRs that DIA prepared for each of the eight
proposals with missing pricing cells, including Sev1Tech’s proposal, demonstrates that
DIA consistently applied the same three methods to evaluate each of the proposals, with
the exception that, for those offerors that did not state an escalation rate in their pricing
proposal, DIA looked to see if a pattern existed. For all offerors except Syneren and
Sev1Tech, DIA discerned a consistent application of a single escalation rate or a pattern
of escalation rates using at least one of these methods. In the MFR prepared for
Syneren’s proposal, DIA noted that Syneren was missing pricing cells for two different
labor categories: System Administrator in the U.S. Group 4 location and Network
Engineer in the United Kingdom location. With regard to the missing System Administrator
cells, DIA determined that all three methods showed Syneren had applied a consistent
escalation rate that was consistent with the rate stated in Syneren’s proposal. With regard
to the missing Network Engineer cells, DIA was not able to discern a consistent pattern
of escalation rates using the first two methods. Using the Same Geographic Area Method,
DIA found “an apparent lack of consistency within the United Kingdom labor rates,” but
that the escalation rate used for all option year four cells was [redacted]%. Because the
missing labor rates all came from option year four, DIA determined Syneren intended to
use a [redacted]% escalation rate.

In the April 23, 2015 MFR prepared for Sev1Tech’s proposal, however, DIA found
that it was not able to discern Sev1Tech’s intended escalation rate for the missing cells
using any of the three estimation methods employed. Although the vast majority of
escalation rates were consistent with Sev1Tech’s stated rate of [redacted]%, using each
of three methods there were at a number of what DIA referred to as “anomalies,”
escalation rates significantly greater or less than [redacted]%. The following chart,
prepared by the court, summarizes DIA’s findings described in the MFRs for each of the
eight offerors using each of the three estimation methods (the escalation rates DIA found
to be consistently applied are highlighted in gray):

60
 Offeror # of Stated Same Labor Random Same
Miss- Escala- Category Labor Geographic
ing tion Rate Escalation Categories Area Escalation
Cells Rates Escalation Rates
Rates
Sev1Tech [re- [redact- [redacted]% to Majority Majority
dact- ed]% [redacted]%, [redacted]%, [redacted]%, but
ed] with one but “numerous nine “anomalies”
anomaly of anomalies . . . between
[redacted]% within multiple [redacted]% and
labor [redacted]%
categories,”
between
[redacted]%
and
[redacted]%
AiNET [re- [redact- All “[L]arge All [redacted]%
dact- ed] [redacted]% majority”
ed] [redacted]%
DKW [re- [redact- All All [redacted]% All [redacted]%
dact- ed]% [redacted]% to
ed] [redacted]%
Jupiter [re- [redact- [redacted]%, All [redacted]%, All [redacted]%,
dact- ed] N/A,17 N/A, [redacted]%, [redacted]%,
ed] N/A [redacted]%, [redacted]%,
[redacted]% [redacted]%
Progres- [re- [redact- [redacted]% to “[V]aried All [redacted]%,
sive dact- ed]% [redacted]%, between the [redacted]%,
ed] [redacted]% to different option [redacted]%,
[redacted]% years, labor [redacted]%
[redacted]% to categories, and
[redacted]%, locations.”
[redacted]% to
[redacted]%
RiiTE [re- [redact- [redacted]%, All [redacted]%, All [redacted]%,
dact- ed]%, N/A, N/A, [redacted]%, [redacted]%,
ed] [redact- [redacted]% [redacted]%, [redacted]%,
ed]%, [redacted]% [redacted]%
[redact-
ed]%,
[redact-
ed]%

17 N/A = No data available.
61
 Sotera [re- [redact- All “[V]aried All [redacted]%,
dact- ed]% [redacted]%, between the [redacted]%,
ed] [redacted]%, different option [redacted]%,
[redacted]%, years, [redacted]%
[redacted]% locations, and
groups”
Syneren: [re- [redact- All All [redacted]% All [redacted]%
System dact- ed] [redacted]%
Admin- ed]
istrator,
U.S.
Group 4
Syneren: [re- [redact- [redacted]%, Majority Almost all
Network dact- ed] [redacted]%, [redacted]%, [redacted]%,
Engineer, ed] [redacted]%, [redacted]%, [redacted]%,
United N/A [redacted]%, [redacted]%,
Kingdom [redacted]%; [redacted]%;
however “a however, one
number of rates labor category
. . . did not “followed a
follow this straight
pattern and [redacted]%
appeared to be escalation rate
random in between all levels
nature” and option years.”

To reach its conclusion, DIA applied consistent evaluation methods to each of the
eight offerors to determine if the values of their missing labor rates could be determined
“from the face of the proposal.” Based on these findings, DIA determined that the intended
prices for the missing price cells for the other seven, non-Sev1Tech, offerors could be
determined “from the face of” their proposals using the escalation rates or pattern
calculated with at least one of the three estimation methods. For Sev1Tech, however,
DIA determined that “[b]ased on the inconsistencies in escalation rates among all three
[estimation] methods” Sev1Tech’s intended price could not be estimated “from the face
of” its proposal. The clarification request sent to the other seven offerors, but not to
Sev1Tech, had only two questions as follows:

Clarification 1. The Government found [ ] individual labor category rate[s]
[was/were] not proposed. [Describes missing rates]

Question: Did you intend to provide pricing for [this/these] cell[s]?
YES or NO

(Note: If the response is NO, then a response is not required to be
provided for Clarification 2.)

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 Clarification 2. Based on the information provided in your proposal, the
Government believes you intended to propose [an] escalation rate[s] of [ ]%.
Using [this/these] escalation rate[s], it is apparent to the Government that
you intended to propose the rates identified below.

Question: Is the pricing that you intended to propose correctly listed
in the table below? YES or NO[18]

(emphasis and capitalization in original). The seven other offerors were not given any
opportunity to provide any further information. It was because DIA concluded that, while
it could project the intended values for the seven offerors from whom it eventually
requested clarifications, it could not do so for Sev1Tech. Therefore, as noted in the April
23, 2015 MFR, DIA did not request a clarification from Sev1Tech because it was
concerned that, due to its inability to determine Sev1Tech’s intended rates for its missing
cells, the types of answers necessary for the evaluation would constitute “discussions,”
which were excluded by the solicitation, and would not be clarifications, which were
allowed by the solicitation and FAR 15.306(a)(2).

Based on the facts presented, it was not unreasonable or arbitrary for DIA to have
concluded that it must limit its clarifications requests to offerors whose missing pricing
information was apparent “from the face of the proposal.” The record before the court also
demonstrates that, during its evaluation, DIA attempted to fill in the missing labor rates in
a uniform manner for all eight offerors at issue in the case. Although Sev1Tech was not
given an opportunity to clarify, that decision was based on a studied, consistent, analytical
approach, after which DIA concluded that it could not determine Sev1Tech’s intended
rates for its missing cells based on the contents of its price proposal. Although protester
clearly disagrees, and the results may seem harsh to Sev1Tech, DIA exercised its
discretion, perhaps even in a generous attempt, to give each of the eight offerors the
benefit of trying to discern their missing price information from the balance of their
proposals. Based on all of the above discussions, the court concludes that DIA did not
act arbitrarily, capriciously, or not in accordance with the law when it declined to offer
Sev1Tech an opportunity to answer the two clarification questions sent to the seven other
offerors.

CONCLUSION

In case number 15-876C, DIA did not base its evaluation of protestor Constellation
West’s proposal improperly on unstated criteria and its error in assigning one weakness
to Constellation West’s proposal did not prejudice Constellation West. Therefore,
Constellation West’s motion for judgment on the administrative record is DENIED and
defendant’s cross motion is GRANTED. Constellation West’s complaint is DISMISSED.

In case number 15-923C, DIA did not act arbitrarily, capriciously, or contrary to law
when it excluded protestor Sev1Tech’s proposal on the grounds that its total price could

18As noted above, the wording in the clarification request to AiNET varied slightly, but the
two questions asked were identical.
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not be determined or when it declined to engage in clarifications with Sev1Tech regarding
its proposal. Therefore, Sev1Tech’s motion for judgment on the administrative record is
DENIED and defendant’s cross motion is GRANTED. Sev1Tech’s complaint is
DISMISSED.

The Clerk shall enter JUDGMENTS in case numbers 15-876C and 15-923C
consistent with this opinion, dismissing both complaints.

IT IS SO ORDERED.

s/Marian Blank Horn
MARIAN BLANK HORN
Judge

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