Aegis Technologies Group, Inc. v. United States

In the United States Court of Federal Claims
No. 16-863C
(Filed: September 28, 2016)*
*Opinion originally filed under seal on September 23, 2016

)
AEGIS TECHNOLOGIES GROUP, )
INC., )
)
Plaintiff, )
)
v. ) Post-Award Bid Protest; Motion for
) Judgment on the Administrative
THE UNITED STATES, ) Record; RCFC 52.1; Organizational
) Conflict of Interest; Cost Realism;
Defendant, ) Technical Risk; Past Performance;
) Unequal Evaluation
and )
)
COLE ENGINEERING SERVICES, )
INC., )
)
Defendant-Intervenor. )
)

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

James R. Sweet, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, with whom were Douglas K. Mickle, Assistant
Director, Robert E. Kirschman, Jr., Director, and Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, for defendant. Sean M. Hannaway, Chief, Theater C2
Programs Division, Office of the Staff Judge Advocate, Hanscom Air Force Base, MA,
of counsel.

Jon D. Levin, Huntsville, AL, for defendant-intervenor. W. Brad English,
J. Andrew Watson, III, and Emily J. Chancey, Huntsville, AL, of counsel.

OPINION
 Pending before the court in this post-award bid protest are a motion for judgment

on the administrative record and for permanent injunctive relief filed by AEgis

Technologies Group, Inc. (“AEgis”) and cross-motions for judgment on the

administrative record filed by defendant the United States (“the government”) and

defendant-intervenor Cole Engineering Services, Inc. (“Cole”), pursuant to Rule 52.1 of

the Rules of the Court of Federal Claims (“RCFC”), in connection with the decision of

the Air Force Material Command, Air Force Life Cycle Management Center, Hanscom

Air Force Base, Massachusetts (“the Air Force”) to award a contract to Cole under

solicitation no. FA8730-15-R-0026 (“the solicitation”). The award is for an indefinite

delivery indefinite quantity (“IDIQ”) contract of up to $67.32 million over five years to

provide support services for the Air Force Modeling and Simulation Training Toolkit

(“AFMSTT”) program. Administrative Record (“AR”) 345.

In its complaint and pending motion, AEgis, which was the incumbent contractor

for the past six years, argues that the Air Force’s award of the IDIQ contract to Cole must

be overturned on several grounds. AR 78, 650, 2403, 2407, 3077-81.1 First, AEgis

claims that the award needs to be set aside because one of Cole’s proposed

subcontractors, Booz Allen Hamilton (“Booz Allen”), has a significant organizational

conflict of interest (“OCI”) that the Air Force has failed to address in violation of Federal

Acquisition Regulation (“FAR”) subpart 9.5. Second, AEgis claims that the Air Force

1
At the July 25, 2016 status conference, government represented that work under the
current contract will continue with AEgis’s existing employees until September 30, 2016.

2
failed to adequately explain its cost realism assessment of Cole’s proposal or consider

Cole’s lower cost in assigning technical risk ratings. Finally, AEgis argues that the Air

Force erred in its past performance evaluation by giving too much weight to the past

performance of Cole’s proposed subcontractors and by failing to give AEgis sufficient

credit for its more relevant past performance.

For the reasons below, the court finds that AEgis has not provided hard facts

showing significant OCI that would warrant further review by the contracting officer and

that the Air Force’s cost realism, technical risk, and past performance evaluations are all

supported by the administrative record. Accordingly, AEgis’s motion for judgment on

the administrative record and for permanent injunctive relief is DENIED. The

government’s and Cole’s cross-motions for judgment on the administrative record are

GRANTED.

I. BACKGROUND

A. Solicitation Background

The AFMSTT program “is a set of software tools that provide a complete

constructive simulated theater-level air warfare environment.” AR 302. The AFMSTT

“allows the [Air Force] to execute training exercises and mission rehearsal activities

within a Joint Forces and cooperative partnership environment.” AR 302. “AFMSTT

tools continue to evolve to accommodate warfighting doctrine and environment,

exercise/event frequency, type, and stakeholder needs. Some exercises/events are

recurring and scheduled in advance while others may be one-time engagements.” AR

302. The Air Force updates the AFMSTT program based on “change requests” and

3
“deficiency reports” submitted by the AFMSTT’s operational users to the Air Force

Agency for Modeling and Simulation (“AFAMS”). AR 302-04.2

As noted above, AEgis was the incumbent AFMSTT contractor for the past six

years and was responsible for maintaining and making updates to the AFMSTT software.

AR 78, 650, 2403, 2407, 3077-81. Under a separate contract (contract no. GS-23-F-

0025K, task order nos. GST0009AJ0018 and GSQ0015AJ0011), one of Cole’s proposed

subcontractors under the AFMSTT solicitation, Booz Allen, provided technical support to

AFAMS by collecting and tracking change requests and deficiency reports, which were

then provided to the AFMSTT contractor. AR 302, 3011, 3015, 3177. Booz Allen had

its AFAMS contract from August 2009 to August 2015. AR 3007, 3011.

The Air Force issued the AMSTT solicitation on September 3, 2015. AR 7, 213,

2662.3 The solicitation was a small business set-aside and provided that the Air Force

would make an award of one IDIQ contract on the basis of a “best value, tradeoff source

selection conducted in accordance with FAR Part 15, as supplemented by the Defense

Federal Acquisition Regulation Supplement (DFARS) Part 215, Department of Defense

2
The solicitation explained that a “change request” is “[a] formal proposal from a user
for a modification to the AFMSTT baseline. The Government will prioritize all [change
requests] and provide them to the contractor. Operational or technical requirements drive all
[change requests].” AR 302. The solicitation also stated that a “deficiency report” is “[a] formal
proposal from a user identifying a deficiency resulting in a modification to the baseline. The
Government will prioritize all [deficiency reports] and provide them to the contractor.
Operational or technical [deficiencies] drive all [deficiency reports].” AR 302.
3
The Air Force issued an amendment with administrative corrections on October 2, 2015
and another amendment with administrative corrections on November 4, 2015, after receiving
proposals. AR 7, 492, 528.

4
(DoD) Source Selection Procedures, Air Force Federal Acquisition Regulation

Supplement (AFFARS) Part 5315, and AFFARS Mandatory Procedures (MP) 5315.3.”

AR 395.

The solicitation consisted of a mix of nine cost-plus-fixed-fee, cost-plus-fixed-fee

level-of-effort, firm-fixed-price, and cost-reimbursable contract line item numbers

(“CLINs” or “line items”). AR 216-23. The solicitation also included a model delivery

order. AR 445. The solicitation provided that the government would evaluate offerors’

proposed prices for the delivery order and issue the delivery order when it awarded the

AFMSTT IDIQ contract. AR 534, 540.

The solicitation explained that the Air Force’s award would be based on the

evaluation of each offeror’s proposed technical approach (including subfactors related to

system development and sustainment, exercise/event support, and test and integration),

cost/price, and past performance. AR 535. Recognizing that offerors would need the

AFMSTT software code and similar information to make a proposal, the solicitation also

included a “bidder’s library” with all of the documents referenced in the solicitation,

including AFMSTT future requirements and software code. AR 347, 349, 369, 3012,

3023.

The solicitation included the guidance described below regarding the Air Force’s

evaluation process. First, the solicitation stated that the Air Force would perform a cost

realism analysis in accordance with FAR § 15.404-1(d) for each line item. AR 538-39.4

4
FAR § 15.404-1(d)(1) explains that “[c]ost realism analysis is the process of
independently reviewing and evaluating specific elements of each offeror’s proposed cost

5
The solicitation further stated that the Air Force would create a “government estimate of

most probable cost” (“GEMPC”), as determined by the cost realism assessment, for each

line item based on the offeror’s technical proposal. AR 539. The solicitation stated that

the Air Force’s cost realism evaluation would “consider the extent to which proposed

costs indicate a clear understanding of solicitation requirements, and determine whether

the proposal reflects an effective approach to satisfying those requirements and whether

the proposed labor escalation and indirect factors are reasonable.” AR 539. The

solicitation noted that the cost realism evaluation for the cost-plus-fixed-fee level of

effort line items “will be based on the skill mix but will not be adjusted above the

Government directed Level of Effort (LOE) identified in the cost formats or the

applicable H Clause.” AR 539. The solicitation also noted that “[a] significant

difference between the Offeror’s proposed Cost/Price for cost type CLINs and the

GEMPC will be considered an indicator that the Offeror does not understand the

requirement and will be reflected in the Government’s cost realism analysis.” AR 539.

The solicitation concluded that “[t]he GEMPC for the cost type CLINs, not the

Contractor’s proposed cost, will be used for the purpose of evaluation to determine the

best value.” AR 539.

In its evaluation of offerors’ technical proposals, the Air Force assigned “technical

ratings” and “technical risk ratings” for each subfactor. AR 535. The solicitation stated

estimate to determine whether the estimated proposed cost elements are realistic for the work to
be performed; reflect a clear understanding of the requirements; and are consistent with the
unique methods of performance and materials described in the offeror’s technical proposal.”

6
that a technical rating “provides an assessment of the quality of the Offeror’s solution for

meeting the Government’s requirement.” AR 535. A technical rating of “good” means

that the “[p]roposal meets requirements and indicates a thorough approach and

understanding of the requirements.” AR 536. A technical rating of “acceptable” means

that the “[p]roposal meets requirements and indicates an adequate approach and

understanding of the requirements.” AR 536.5

With regard to technical risk ratings, the solicitation stated that the Air Force

would assess the level of risk for each technical subfactor based on the “potential for

disruption of schedule, increased costs, or degradation of performance, the need for

increased Government oversight, or the likelihood of unsuccessful contract

performance.” AR 536. The solicitation provided that “[f]or any weakness identified,

the evaluation shall address the Offeror’s proposed mitigation and why that mitigation

approach is or is not manageable.” AR 536. Therefore, to earn a “low” risk rating on a

technical subfactor, an offeror needed to show that its technical approach had “little

potential to cause disruption of schedule, increased cost, or degradation of performance”

and that “[n]ormal contractor effort and normal Government monitoring will likely be

able to overcome any difficulties.” AR 536.6

5
The solicitation also defined technical ratings of “outstanding” for exceptional
proposals, “marginal” for proposals that did not clearly meet requirements, and “unacceptable”
for proposals that did not meet requirements and were unawardable. AR 536.
6
A “moderate” risk rating meant that the offeror’s proposed technical approach “[c]an
potentially cause disruption of schedule, increased cost, or degradation of performance,”
requiring “[s]pecial contractor emphasis and close Government monitoring . . . to overcome
difficulties.” AR 536. A “high” risk rating meant that the offeror’s proposed technical approach
was “likely to cause significant disruption of schedule, increased cost, or degradation of

7
 Finally, the solicitation stated that the Air Force would assign each offeror a

performance confidence rating based on an assessment of the quality of recent, relevant

past performance in accordance with FAR § 15.305 and DFARS § 215.305. AR 540.

The highest performance confidence rating, “substantial confidence,” meant that “[b]ased

on the Offeror’s recent/relevant performance record, the Government has a high

expectation that the Offeror will successfully perform the required effort.” AR 541. The

solicitation explained that the government would make a single, overall quality

assessment for each recent and relevant instance of past performance based on “an in-

depth evaluation of all past performance information available, regardless of its source.”

AR 542. The solicitation stated that the Air Force’s assessment of whether cited past

performance was relevant would include “major and critical subcontractor(s).” AR 542.

FAR § 15.305(a)(2)(iii) provides that a past performance evaluation “should take into

account past performance information regarding . . . subcontractors that will perform

major or critical aspects of the requirement.” Accordingly, the solicitation required each

offeror to submit information about past performance “for the Offeror and all

subcontractors at any tier, Inter-Divisional Transfers (IDT), teaming partners, and/or joint

venture partners proposed to perform 25% or more of the effort based on the total

proposed price, or proposed to perform aspects of the effort the Offeror considers critical

to overall successful performance.” AR 355.

performance,” making the approach “unlikely to overcome any difficulties, even with special
contractor emphasis and close Government monitoring.” AR 536.

8
 B. Offers, Evaluation, and Award

The Air Force received six proposals in response to the solicitation. AR 2879.

After an initial evaluation, the Air Force determined that AEgis’s proposal, Cole’s

proposal, and another proposal were considered to be awardable without discussions. AR

2879. The Air Force’s ratings for AEgis and Cole are summarized as follows:

AEgis Cole
Technical Subfactors
System Development Good Good
and Sustainment7 Low Risk Low Risk
Exercise/Event Acceptable Acceptable
Support8 Low Risk Low Risk
Acceptable Good
Test and Integration9
Low Risk Low Risk

7
For the system development and sustainment technical subfactor, the Air Force
identified “two strengths, no weaknesses or significant weaknesses” in AEgis’s proposal and
assigned AEgis a “low” technical risk rating. AR 2879. The Air Force assigned Cole a “low”
technical risk rating for the system development and sustainment technical subfactor although
the Air Force recognized that Cole’s proposal required a cost adjustment, under the Air Force’s
cost realism evaluation, related to transitioning into the contract. AR 2880. However, the Air
Force determined that this adjustment “was not meaningful enough to raise the risk rating above
low as it only pertains to the first 90 day transition period and not the full 5-year contract period
of performance.” AR 2880.
8
The Air Force found that AEgis and Cole had “no strengths, weaknesses or significant
weaknesses” for the exercise/event support technical subfactor. AR 2882.
9
The Air Force found that AEgis’s “standard approach” under the test and integration
technical subfactor presented “no strengths, weaknesses or significant weaknesses,” and assigned
AEgis an “acceptable” technical rating. AR 2883. The Air Force assigned Cole a “good”
technical rating for the test and integration technical subfactor based on “two strengths, no
weaknesses or significant weaknesses.” AR 2883. The first strength was “that [Cole] proposed
to create a representative environment (testbed) to perform realistic testing and allow for a stable
AFMSTT system participation in the M&S federation testing cycles,” which the Air Force found
“will significantly reduce the risk to the Government and avoid[] rework.” AR 2883-84. The
second strength was related to Cole’s proposed “comprehensive approach to the LINK-
16/TADIL interface test and integration,” which the Air Force found “will provide immediate
feedback to the test team on the new TDL service functionality.” AR 2884.

9
 AEgis Cole
Past Performance10 Substantial Confidence Substantial Confidence
Cost/Price
Proposed Cost/Price $3.87 million $2.97 million
Cost/Price Realism
0 $0.42 million11
Adjustment
Government Estimate
$3.87 million $3.39 million
of Most Probable Cost
Reasonable Reasonable
Other Cost/Price
Balanced Balanced
Criteria
Realistic Realistic

AR 2885, 2887.

10
AEgis earned a past performance rating of “substantial confidence” “based on three
“Very Relevant” efforts (all three evaluated at a quality level of ‘Very Good’) and one
‘Somewhat Relevant’ effort (evaluated at a quality level of ‘Very Good’).” AR 2885-86. The
Air Force noted that AEgis’s “subcontractor performed one of the ‘Very Relevant’ efforts.” AR
2886. The Air Force further noted that AEgis and its subcontractor had “shown experience with
DoD M&S federations as well as experience in a Live, Virtual, and Constructive environment.”
AR 2886. Therefore, “[t]he Government has a high expectation that the AEgis will successfully
perform the required effort.”

Cole earned a past performance rating of “substantial confidence” “based on three ‘Very
Relevant’ efforts (all three evaluated at a quality level of ‘Satisfactory’), four ‘Relevant’ efforts
(one evaluated at a quality level of ‘Exceptional’ and three at ‘Very Good’), and two ‘Somewhat
Relevant’ efforts (one evaluated at a quality level of ‘Very Good’ and one at ‘Satisfactory’).”
AR 2886. The Air Force noted that Cole’s “subcontractors have shown relevant work with
‘Exceptional’ and ‘Very Good’ ratings, and ‘Very Relevant’ work with ‘Satisfactory’ ratings.”
In addition, the Air Force found that Cole and its subcontractors had “shown extensive
experience with DoD M&S federations as well as experience in a Live, Virtual, and Constructive
environment.” AR 2886. Therefore, “[t]he Government has a high expectation that [Cole] will
successfully perform the required effort.” AR 2886.
11
The cost adjustment for Cole’s proposal was based on the addition of 2,340 hours, at a
cost of $368,212, for transitioning into the contract under line item 1 and 320 hours, at a cost of
$54,472, for training and management under line item 3. AR 2515-19 (initial evaluation), 2843-
45 (proposal analysis report), 2761 (source selection authority decision brief), 2887-88 (source
selection decision showing overall adjustment and specifically discussing the addition of
transition costs).

10
 On March 4, 2016, the source selection authority, Michael G. Therrien,

determined to award the AFMSTT contract (contract no. FA8730-16-D-0001) to Cole.

AR 2889. Mr. Therrien found that Cole’s proposal offered “advantages . . . in the Test

and Integration Technical Subfactor and Cost/Price Factor.” AR 2888. Mr. Therrien also

found that AEgis’s proposal and the other awardable proposal offered “no advantages . . .

that would justify the higher cost over the [Cole] proposal.” AR 2888. Mr. Therrien

therefore concluded that “[Cole’s] proposal clearly presents the best value for the

Government.” AR 2888. The Air Force awarded the contract and delivery order to Cole

on March 11, 2016. AR 6-7.

C. Protest before the Government Accountability Office

AEgis and another unsuccessful bidder filed protests before the Government

Accountability Office (“GAO”). AR 3143 (B-412884; B-412884.2; B-412884.3; B-

412884.4). AEgis filed its initial protest on March 21, 2016, AR 77, and a supplemental

protest on April 27, 2016, AR 2950.

In its initial protest before the GAO, AEgis argued, among other things, that the

Air Force had erred by assigning Cole a “low” technical risk rating for the system

development and sustainment technical subfactor on the grounds that a low risk rating

required “little potential to cause . . . increased cost” and that “the Air Force made an

upward adjustment of [Cole’s] cost proposal for the Technical Subfactor of System

Development & Sustainment of 64% based on cost realism.” AR 80-81. AEgis also

argued in its initial protest that the Air Force unreasonably assigned both AEgis and Cole

a past performance rating of “substantial confidence,” “ignoring the significant

11
difference” that AEgis had more “recent/relevant performance” as the incumbent

contractor. AR 100-01.

In its supplemental protest, AEgis asserted that Booz Allen had a significant OCI

arising from its performance of the AFAMS support services contract. AR 2968-72.

Specifically, AEgis argued that “[i]f, in its waning months as an AFAMS support

contractor, [Booz Allen] was scheming to joining [Cole’s] team to perform AFMSTT,”

Booz Allen might have provided policy advice to the Air Force that could have benefited

Cole and itself. AR 2972. AEgis also stated that Booz Allen might have had unequal

access to non-public information or might have impaired objectivity. AR 2972.12 AEgis

12
In support of its OCI arguments, AEgis relied on a description, from Cole’s proposal,
of Booz Allen’s past performance in providing modeling and simulation mission support services
for AFAMS, AR 1538, and a declaration from Stephen J. Swenson, AEgis’s Vice President of
Eastern Operations, who was responsible for the performance of the predecessor contract
awarded to AEgis for the AFMSTT program, AR 3077-81. In his declaration, Mr. Swenson
stated that Booz Allen “participated directly in the authorship and adjudication of AFMSTT user
requirements” as part of its responsibility for “designing, implementing and overseeing AFAMS’
Modeling and Simulation Warfighter Operational Database (MSWORD).” AR 3079. Mr.
Swenson also stated that Booz Allen might have “influenc[ed] . . . work orders” for the
AFMSTT program in providing technical advice under its AFAMS contract. AR 3080. Mr.
Swenson continued that Booz Allen “had direct access to price/cost data, pricing/estimation
models, and business processes” and was “also made aware of portions of AEgis’s strategic
plan” through participation in AEgis program management reviews or through its support of
AFAMS business operations. AR 3078-79. Mr. Swenson further stated that because Booz Allen
“participated in the configuration management process” and “oversaw testing” of the AFMSTT
program, Booz Allen would have had “insight into AEgis’s proprietary software development
processes” and “insight into AEgis’s internal testing capabilities, software development, and
systems engineering processes.” AR 3079. Mr. Swenson stated that Booz Allen “was
potentially unable to be impartial” as an AFAMS support contractor and potential AFMSTT
subcontractor and “may have been reluctant to impose stringent user requirements on AFMSTT
procurements knowing that those stringent requirements would soon be a burden to [Cole]/[Booz
Allen].” AR 3080. Mr. Swenson also stated that Booz Allen “was potentially unable to be
impartial in . . . their technical and operational advice” and “could potentially . . . indirectly
posture the incoming AFMSTT developer to receive more work as well as the more profitable
work.” AR 3080. Finally, Mr. Swenson stated that Booz Allen “had an incentive to be unduly

12
also argued in its supplemental protest before the GAO that the Air Force’s cost realism

evaluation was inadequate because the Air Force did not compare Cole’s proposed costs

to the government cost estimate. AR 2951. Finally, AEgis objected in its supplemental

protest to Cole’s “substantial confidence” past performance rating on the grounds that the

Air Force gave too much weight to the past performance of Cole’s proposed

subcontractors. AR 2973.

The Air Force filed lengthy responses to AEgis’s initial protest and supplemental

protest before the GAO. First, with regard to AEgis’s objection to the Air Force’s

technical risk analysis on the grounds that the Air Force’s cost realism adjustment for

Cole’s proposal required a higher risk rating for the system development and sustainment

technical subfactor, the contracting officer stated that the cost adjustment “was not

meaningful enough to raise the risk rating above low, as it only pertains to the first 90 day

transition period, and not the full 5-year contract period of performance.” AR 41

(citation to the record omitted); see also supra note 7 (discussing the Air Force’s

rationale for this rating in the source selection decision). The contracting officer then

explained that the Air Force’s “low” technical risk rating for Cole’s proposal was

consistent with the standards described in the solicitation because “[t]he Air Force

determined that [Cole’s] transition plan and normal Air Force monitoring will likely

overcome any difficulties associated with transition execution during the 90 day period.”

critical of AEgis’s performance” to make it “easier for [Cole] and [Booz Allen] to replace AEgis
as the [AFMSTT] contractor.” AR 3080.

13
AR 41 (citations to the record omitted). Thus, the contracting officer stated that because

“[Cole] demonstrated a thorough understanding of the requirements it was properly rated

as ‘Good (Purple)’ with a ‘Low’ risk for this Subfactor in accordance with the Evaluation

Criteria.” AR 41 (citation to the record omitted).

Second, with regard to AEgis’s argument that the Air Force unreasonably assigned

both AEgis and Cole a past performance rating of “substantial confidence” despite

AEgis’s experience as the incumbent contractor, the contracting officer stated that

“[w]hile [AEgis] was the incumbent of the AFMSTT contract, and the Air Force fully

considered its past performance, [AEgis’s] incumbency does not disqualify other offerors

from also receiving substantial confidence assessments.” AR 70-71.

Third, with regard to AEgis’s OCI allegations, the contracting officer stated that

“[w]hile [Booz Allen] held the M&S Mission Support Services contract at AFAMS, there

was unequivocally no conflict of interest determined by the Air Force.” AR 3008. The

contracting officer noted that Booz Allen’s work under the AFAMS contract “had no

effect on the AFMSTT source selection.” AR 3008. The contracting officer indicated

that the Air Force had reviewed Booz Allen’s role in supporting AFMSTT exercises and

testing and concluded that it “clearly does not provide any conflict of interest.” AR 3011.

The contracting officer found that “[Booz Allen’s] participation in these events reflect

how they supported efforts on the current AFMSTT contract in accordance with the

requirements under their own AFAMS support contract, but were in no way affiliated

with the [AFMSTT] source selection process.” AR 3011.

14
 The contracting officer, in the response, also stated that Booz Allen was not

involved in drafting requirements or evaluating proposals under the AFMSTT solicitation

“and therefore did not have a conflict of interest, specifically concerning impaired

objectivity.” AR 3008, 3010. The contracting officer further determined that Booz Allen

“had no conflicts of interest specifically involving unequal access or biased ground rules

regarding any documentation, since all requirements, draft or otherwise, were released to

the public as they were made available by the Air Force Program Office.” AR 3010. In

this connection, the contracting officer noted that “information regarding the

requirements was released serially throughout their development to all interested parties”

and “the program office made an extensive bidder’s library containing business,

planning, and technical data, and software available to potential offerors in the run up to

the source selection.” AR 3012.

The contracting officer also addressed in the response whether Booz Allen might

have had access to AEgis’s proprietary information. AR 3012. The contracting officer

noted that “[a]ll AFMSTT technical data is possessed with no less than Government

Purpose rights, and all software is either Unlimited Rights licensed or is commercial

software, none of which is proprietary to [AEgis].” AR 3012. The contracting officer

also stated that “[t]he only proprietary data [AEgis] would have generated under the

incumbent contract would have been financial or business information necessary to

15
administer a cost contract” and that “[t]here simply would be no reason to disclose this

information to [Booz Allen] in performance of its AFAMS contract.” AR 3012.13

Fourth, with regard to AEgis’s cost realism argument, the contracting officer

explained that AEgis’s objection was based on the faulty assumption that the solicitation

required the Air Force to compare Cole’s proposed costs to the government cost estimate.

AR 2996-99. The contracting officer acknowledged that Cole’s proposed cost was lower

than the government cost estimate but explained that “comparing [Cole’s] cost proposal

to the Government Estimate or [AEgis’s] proposed cost . . . would be categorically

incorrect and not in accordance with the solicitation.” AR 2998 (citations to the record

omitted).14 The contracting officer stated that the Air Force evaluated each proposal

independently “based on the content of the proposal,” based on “the DoD Source

Selection Procedures.” AR 2998 (citation to the record omitted). The Air Force did not

13
Cole also submitted a response to the GAO addressing AEgis’s OCI allegations. AR
3126-31. Cole’s response included declarations from Scott C. Johnston, lead associate at Booz
Allen and task lead for Booz Allen’s AFAMS contract, AR 3135-37, and Matthew J. Thompson,
Cole’s chief operating officer, AR 3139-41. In his declaration, Mr. Johnston stated that Booz
Allen “did not generate [change requests] or [deficiency reports]; did not write or review
AFMSTT source code; did not have access to AFMSTT contractor price/cost data, pricing
estimation models, or source code; and did not draft any aspect of [Cole’s] proposal in response
to the AFMSTT Solicitation.” AR 3137. Mr. Thompson stated in his declaration that Cole
signed a teaming agreement with Booz Allen on July 29, 2015, months after Booz Allen ended
performance on the AFAMS contract. AR 3140. Mr. Thompson also stated that “[Cole]
personnel drafted its proposal in response to the AFMSTT Solicitation,” relying “on information
contained in the AFMSTT Solicitation, including the source code contained in the bidder’s
library, to develop its approach.” AR 3141. At oral argument, the government clarified that the
contracting officer in conducting her OCI evaluation did not rely on these declarations, which
were submitted after the Air Force’s response to the GAO.
14
Instead, the government cost estimate “was used primarily as a baseline to determine
balanced [line item] prices.” AR 2996 (citation to the record omitted).

16
compare proposals to other proposals. AR 2998. The contracting officer explained that

the Air Force’s cost realism analysis and adjustments were based on the Air Force’s

assessment of “whether an offeror’s proposal was understaffed (not enough hours),

staffed with incorrect skill mixes, or otherwise required an adjustment” in light of the

offeror’s technical approach and “actual performance in prior years on the program or

other analogous programs.” AR 2996-97 (citation to the record omitted). The

contracting officer then described the Air Force’s cost adjustments for Cole’s proposal,

which the contracting officer stated were “based on the subjective, professional

judgement of the evaluators.” AR 2997-98 (citations to the record omitted).

Finally, with regard to AEgis’s argument that the Air Force’s past performance

evaluation gave too much weight to the past performance of Cole’s subcontractors, the

contracting officer explained that offerors were required to submit past performance “for

the offeror and all subcontractors who will perform in excess of 25% or were proposed to

perform aspects of the effort the Offeror considers critical to overall successful

performance.” AR 3015-16. The contracting officer explained that although Cole’s

proposed subcontractors would perform less than 25% of the work for the initial delivery

order, the Air Force determined that “[e]ach of the four [subcontractors] that [Cole]

proposed is estimated to complete 10% of the work over the life of the 5 year ID/IQ

contract totaling 40% of the effort.” AR 3016.

D. GAO Decision Denying AEgis’s Protest

On June 28, 2016, the GAO denied AEgis’s protest. AR 3143-54; Pl.’s Mot. for J.

on the Admin. R. (“MJAR”) 2; Def.’s MJAR 11. With regard to AEgis’s argument that

17
the Air Force did not explain its cost realism analysis, the GAO found the Air Force’s

cost realism evaluation was supported by the record. AR 3146-47 n.5. The GAO also

found that AEgis’s objection to Cole’s “low” technical risk rating for the system

development and sustainment technical subfactor was unfounded. AR 3148 (citations to

the record and GAO cases omitted). With regard to AEgis’s arguments regarding past

performance evaluations, the GAO found that “[a]lthough AEgis had more contracts than

Cole that were assessed as very relevant with very good past performance, AEgis has

failed to show how the [Air Force] was remiss in assigning an overall rating of

substantial confidence to Cole.” AR 3149. Because AEgis did not allege any violation

of the solicitation or the FAR, or object to “the underlying relevance or performance

ratings” for the Air Force’s past performance evaluation, the GAO found “no basis to

sustain the protest.” AR 3149.

The GAO found that AEgis’s remaining objections, including its OCI objections,

did not provide a basis to sustain the protest. AR 3146. The GAO did not however

discuss AEgis’s OCI arguments in its decision. AR 3146.

E. Procedural History

AEgis filed its complaint in this case on July 21, 2016. On the same day, AEgis

filed a motion for preliminary injunction. On July 22, 2016, defendant-intervenor Cole

filed an unopposed motion to intervene. On July 25, 2016, the court granted Cole’s

unopposed motion to intervene and based on the government’s representations that work

under the current contract will continue with AEgis’s existing employees until September

30, 2016, AEgis’s motion for a preliminary injunction was denied as moot.

18
 Briefing on cross-motions for judgment on the administrative record was

completed on September 8, 2016. The court heard oral argument on September 16, 2016.

II. JURISDICTION AND LEGAL STANDARDS

Under the Tucker Act, as amended, this court has “jurisdiction to render judgment

on an action by an interested party objecting to a solicitation by a Federal agency for bids

or proposals for a proposed contract or to a proposed award or the award of a contract or

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

proposed procurement.” 28 U.S.C. § 1491(b)(1). It is undisputed that AEgis is an

interested party because AEgis was an actual offeror whose direct economic interest is

affected by the award of the contract to Cole. See Tinton Falls Lodging Realty, LLC v.

United States, 800 F.3d 1353, 1358 (Fed. Cir. 2015).

In a bid protest action, the court reviews an agency’s procurement decision

pursuant to the standards set forth in the Administrative Procedure Act, 5 U.S.C. § 706.

28 U.S.C. § 1491(b)(4). An agency’s procurement decision is to be set aside only if the

decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” E.g., Per Aarsleff A/S v. United States, No. 2015-5111, 2016 WL 3869790, at

*3 (Fed. Cir. June 23, 2016) (citing PAI Corp. v. United States, 614 F.3d 1347, 1351

(Fed. Cir. 2010); NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir.

2004)). This standard is “highly deferential.” Advanced Data Concepts, Inc. v. United

States, 216 F.3d 1054, 1058 (Fed. Cir. 2000). The court must determine “whether the

procurement official’s decision lacked a rational basis or the procurement procedure

involved a violation of a regulation or procedure.” Tinton Falls, 800 F.3d at 1358 (citing

19
Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282, 1285–86 (Fed.Cir.2010)); see

also PAI Corp., 614 F.3d at 1351 (Fed. Cir. 2010) (citing Weeks Marine, Inc. v. United

States, 575 F.3d 1352, 1358 (Fed. Cir. 2009)). An agency’s decision is “arbitrary and

capricious when the agency ‘entirely failed to consider an important aspect of the

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

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

in view or the product of agency expertise.’” Ala. Aircraft Indus., Inc.-Birmingham v.

United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). If the court finds that “the

government acted without rational basis or contrary to law when evaluating the bids and

awarding the contract . . . 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 1346,

1351 (Fed. Cir. 2005). RCFC 52.1 provides for review of agency action based upon an

administrative record.

III. DISCUSSION

A. AEgis Has Not Provided Hard Facts Showing Significant OCI.

AEgis argues that the award to Cole must be set aside because Booz Allen is

ineligible to serve as a subcontractor for Cole due to significant OCI. AEgis makes three

arguments regarding OCI. The court examines each in turn.

1. Biased Ground Rules OCI under FAR § 9.505-1

“The biased ground rules category of OCIs focuses on the concerns that a

company may, by participating in the process of setting procurement ground rules, have

20
special knowledge of the agency’s future requirements that may skew the competition in

its favor.” Turner Const. Co. v. United States, 645 F.3d 1377, 1382 (Fed. Cir. 2011).

Under FAR § 9.505-1(a), “[a] contractor that provides systems engineering and technical

direction for a system but does not have overall contractual responsibility for its

development, its integration, assembly, and checkout, or its production shall not . . . be a

subcontractor or consultant to a supplier of the system or any of its major components.”15

FAR § 9.505-1(b) states that “[i]n performing these activities, a contractor occupies a

highly influential and responsible position in determining a system’s basic concepts and

supervising their execution by other contractors.” To show a violation under FAR

§ 9.505-1, the FAR requires that a bidder or subcontractor be “in a position to make

decisions favoring its own products or capabilities” by providing “systems engineering”

and “technical direction” for the relevant program. FAR § 9.505-1. FAR § 9.505-1(b)

defines “systems engineering” as “a combination of substantially all of the following

activities: determining specifications, identifying and resolving interface problems,

developing test requirements, evaluating test data, and supervising design.” FAR

§ 9.505-1(b) then defines “technical direction” as “a combination of substantially all of

the following activities: developing work statements, determining parameters, directing

other contractors’ operations, and resolving technical controversies.”16

15
The government does not dispute that the AFMSTT program is a “system” for the
purposes of FAR § 9.505-1.
16
FAR § 9.508 provides the following examples of OCI arising from a contractor
providing systems engineering and technical direction:

21
 AEgis argues that Booz Allen provided systems engineering and technical

direction on AFMSTT based on a description, from Cole’s proposal, of Booz Allen’s past

performance in providing modeling and simulation mission support services for AFAMS.

AR 1538. AEgis asserts that Booz Allen provided systems engineering and technical

direction for the AFMSTT program, such as by “exploring new Warfighter concepts,

roles, and missions”; “establishing architectures, interoperable databases, protocols, and

standards”; and providing technical and operational subject matter expertise to AFAMS

on training models and simulations including the AFMSTT program. AR 1538-42.

AEgis also relies on the declaration of Stephen J. Swenson, AEgis’s Vice

President of Eastern Operations, who was responsible for the performance of the

predecessor contract awarded to AEgis for the AFMSTT program. AR 3077-81. In his

declaration, Mr. Swenson stated that Booz Allen “participated directly in the authorship

and adjudication of AFMSTT user requirements” as part of its responsibility for

“designing, implementing and overseeing AFAMS’ Modeling and Simulation Warfighter

(a) Company A agrees to provide systems engineering and technical direction for
the Navy on the powerplant for a group of submarines (i.e., turbines, drive shafts,
propellers, etc.). Company A should not be allowed to supply any powerplant
components. Company A can, however, supply components of the submarine
unrelated to the powerplant (e.g., fire control, navigation, etc.). In this example,
the system is the powerplant, not the submarine, and the ban on supplying
components is limited to those for the system only.

(b) Company A is the systems engineering and technical direction contractor for
system X. After some progress, but before completion, the system is canceled.
Later, system Y is developed to achieve the same purposes as system X, but in a
fundamentally different fashion. Company B is the systems engineering and
technical direction contractor for system Y. Company A may supply system Y or
its components.

22
Operational Database (MSWORD).” AR 3079. Mr. Swenson also stated that Booz Allen

might have “influenc[ed] . . . work orders” for the AFMSTT program in providing

technical advice under its AFAMS contract. AR 3080.

The government, relying on the Air Force’s response to AEgis’s supplemental

protest before the GAO, argues that the contracting officer considered and rejected the

possibility that Booz Allen’s work supporting AFAMS involved a potential for biased

ground rules under FAR § 9.505-1. According to the government, the administrative

record before the court shows that Booz Allen did not have a role in providing systems

engineering or technical direction for the AFMSTT, which is necessary to show a

violation of FAR § 9.505-1(b). The government argues that regardless of how Cole

presented Booz Allen’s role under its prior AFAMS contract, AEgis has failed to present

any hard facts demonstrating that Booz Allen provided systems engineering and technical

direction on AFMSTT or was otherwise in a position to set biased ground rules for the

AFMSTT solicitation through the AFAMS contract.

The court finds that AEgis has failed to provide hard facts to show that Booz

Allen’s potential participation as a Cole subcontractor would violate FAR § 9.505-1.

There is no indication in the record that Booz Allen was in the type of “highly influential

and responsible position in determining a system’s basic concepts,” that could create

biased ground rules OCI under FAR § 9.505-1. For example, the portion of the record

quoted by AEgis to show that Booz Allen provided systems engineering and technical

direction on AFMSTT expressly states that Booz Allen “served in an observation and

requirements capturing role” in supporting AFAMS. AR 1538. The fact that Booz Allen

23
collected and tracked the change requests and deficiency reports used in the AFMSTT

program is not proof that Booz Allen developed work statements or determined

parameters for the AFMSTT program, directed the operations of other contractors such as

AEgis, or resolved technical controversies. To the contrary, the record shows that Booz

Allen, under its AFAMS contract, did not determine specifications, develop test

requirements, or supervise design for the AFMSTT program. See, e.g., AR 3176 (“This

[AFAMS task order] does not support the development of the simulations [used by the

Air Force for testing the AFMSTT program], but provides support to both the developers

and the users.”). As such, there is no proof that Booz Allen could have played a role in

designing specifications or developing test requirements that could result in biased

ground rules. Accordingly, there is no proof that Booz Allen’s potential role as one of

Cole’s proposed subcontractors violates the OCI rules set in FAR § 9.505-1.

In Turner Construction Co. v. United States, 645 F.3d at 1387 (quoting PAI Corp.,

614 F.3d at 1352), the Federal Circuit held that “an OCI must be based on ‘hard facts; a

mere inference or suspicion of an actual or apparent conflict is not enough.’” At bottom,

AEgis’s biased ground rules OCI arguments are assertions based on “mere inference or

suspicion” are therefore inadequate to establish OCI under this Federal Circuit precedent.

AEgis has failed to establish OCI based on a violation of FAR § 9.505-1.

2. Unequal Access OCI

In order to establish an unequal access OCI, there must be “access to non-public

information that is competitively useful.” Turner Constr., 645 F.3d at 1387 (citing

Axiom, 564 F.3d at 1377 n.1); see also FAR §§ 9.505(b)(2) (“[A]n unfair competitive

24
advantage exists where a contractor competing for award for any Federal contract

possesses . . . [s]ource selection information . . . that is relevant to the contract but is not

available to all competitors, and such information would assist that contractor in

obtaining the contract.”), 9.505-4 (providing general rules for obtaining access to

proprietary information).

AEgis relies on Mr. Swenson’s declaration in support of its unequal access OCI

argument. AR 3077-81. Mr. Swenson stated in his declaration that Booz Allen “had

direct access to price/cost data, pricing/estimation models, and business processes” and

was “also made aware of portions of AEgis’s strategic plan” through participation in

AEgis program management reviews or through its support of AFAMS business

operations. AR 3078-79. Mr. Swenson further stated that because Booz Allen

“participated in the configuration management process” and “oversaw testing” of the

AFMSTT program, Booz Allen would have had “insight into AEgis’s proprietary

software development processes” and “insight into AEgis’s internal testing capabilities,

software development, and systems engineering processes.” AR 3079. In other words,

AEgis argues that Booz Allen had “insider information” about the structure of the

AFMSTT program and future requirements based on Booz Allen’s access to change

requests and deficiency reports submitted by AFMSTT users. Pl.’s Reply 5.

The government argues that the contracting officer addressed the issue of unequal

access in the Air Force’s response to AEgis’s supplemental protest before the GAO. In

that response, the contracting officer explained that “information regarding the

requirements was released serially throughout their development to all interested parties”

25
and “the program office made an extensive bidder’s library containing business,

planning, and technical data, and software available to potential offerors in the run up to

the source selection.” AR 3012. Before the GAO, the Air Force argued that it created

the bidder’s library specifically “to blunt any informational edge and ensure a fair

competition.” AR 3014.

The government also argues that the contracting officer expressly rejected AEgis’s

claim that Booz Allen might have had access to AEgis’s proprietary information. AR

3012. The contracting officer noted that “[a]ll AFMSTT technical data is possessed with

no less than Government Purpose rights, and all software is either Unlimited Rights

licensed or is commercial software, none of which is proprietary to [AEgis].” AR 3012.

The contracting officer also stated that “[t]he only proprietary data [AEgis] would have

generated under the incumbent contract would have been financial or business

information necessary to administer a cost contract” and that “[t]here simply would be no

reason to disclose this information to [Booz Allen] in performance of its AFAMS

contract.” AR 3012. In view of the foregoing, the government contends that AEgis has

failed to provide hard facts demonstrating unequal access to information.

The court agrees with the government that AEgis has failed to provide hard facts

showing that Booz Allen gained an unfair competitive advantage through unequal access

to non-public information. The court recognizes that Booz Allen, as part of its AFAMS

contract, had access to change requests and deficiency reports submitted by AFMSTT

users. However, in the AFMSTT solicitation, the Air Force recognized that different

offerors might have had different access to information and thus provided information

26
about AFMSTT future requirements and the AFMSTT software code to all offerors in a

bidder’s library. AR 347, 349, 369, 3012, 3023. “It is well-established that an

appropriate measure for an agency to take to remedy a potential ‘unequal access to

information’ OCI is to disclose the nonpublic information.” Ala. Aircraft Indus., 83 Fed.

Cl. at 690 (citing Sierra Military Health Servs., Inc. v. United States, 58 Fed. Cl. 573, 583

(2003)). Even if Booz Allen had a better understanding of the AFMSTT program by

virtue of its earlier access to the change requests and deficiency reports, “[t]he mere

existence of a prior or current contractual relationship between a contracting agency and

a firm does not create an unfair competitive advantage, and an agency is not required to

compensate for every competitive advantage gleaned by a potential offeror’s prior

performance of a particular requirement . . . ” PAI Corp., 614 F.3d at 1353-54 (citing

Ala. Aircraft Indus., 83 Fed. Cl. at 686; ARINC Eng’g Servs., LLC v. United States, 77

Fed. Cl. 196, 203 (2007)). Therefore, AEgis’s unequal access OCI argument on this

ground fails.

In addition, the court finds that AEgis has not presented hard facts showing that

Booz Allen had access to AEgis’s proprietary information. As discussed above, the

contracting officer in the response before the GAO stated that the only proprietary

information AEgis would have generated under its incumbent contract would have been

financial or business information. AR 3012. While Booz Allen provided business

operations support to AFAMS, AR 3180-85, the contracting officer concluded that there

was no reason AEgis’s financial or business information would have been disclosed to

Booz Allen under Booz Allen’s AFAMS contract. AR 3012. AEgis has not presented

27
any hard evidence to refute this conclusion. As such, AEgis’s unequal access OCI

argument on this ground also fails.

3. Impaired Objectivity OCI

In order to show an “impaired objectivity” OCI, there must be hard facts showing

that “a government contractor’s ‘work under one government contract could entail its

evaluating itself, either through an assessment of performance under another contract or

an evaluation of proposals.’” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 83

Fed. Cl. 666, 687-88 (2008) (quoting Aetna Gov’t Health Plans, Inc., Found. Health Fed.

Servs., Inc., B-254397 (Comp. Gen. July 27, 1995)), rev’d on other grounds, 586 F.3d

1372 (Fed. Cir. 2009); see also FAR § 9.505(a) (providing that an underlying principle of

the FAR’s OCI rules is “[p]reventing the existence of conflicting roles that might bias a

contractor’s judgment”). See generally Daniel I. Gordon, Organizational Conflicts of

Interest: A Growing Integrity Challenge, 35 Pub. Cont. L.J. 25, 32 (2005) (discussing

OCI issues raised in bid protests).

AEgis asserts, again based on Mr. Swenson’s declaration, that Booz Allen “was

potentially unable to be impartial” as an AFAMS support contractor and potential

AFMSTT subcontractor and “may have been reluctant to impose stringent user

requirements on AFMSTT procurements knowing that those stringent requirements

would soon be a burden to [Cole]/[Booz Allen].” AR 3080. AEgis also argues that Booz

Allen “was potentially unable to be impartial in . . . their technical and operational

advice” and “could potentially . . . indirectly posture the incoming AFMSTT developer to

receive more work as well as the more profitable work.” AR 3080. Finally, AEgis

28
argues that Booz Allen “had an incentive to be unduly critical of AEgis’s performance”

to make it “easier for [Cole] and [Booz Allen] to replace AEgis as the [AFMSTT]

contractor.” AR 3080.

The contracting officer, in the Air Force’s response to AEgis’s protest before the

GAO, stated that Booz Allen “did not have a conflict of interest, specifically concerning

impaired objectivity,” mainly because Booz Allen was not involved in evaluating

proposals under the AFMSTT solicitation. AR 3008.

AEgis’s allegations with respect to Booz Allen’s allegedly impaired objectivity are

based on “mere inference or suspicion” and are therefore also insufficient to prove OCI

under Turner Construction, 645 F.3d at 1387. AEgis has not presented any hard facts to

show that Booz Allen actually imposed stringent requirements on AFMSTT

procurements, postured the incoming AFMSTT developer to receive more work or more

profitable work, or was unduly critical of AEgis’s performance. Instead, as discussed

above, the record shows that Booz Allen did not draft requirements or determine changes

to the AFMSTT program. AR 1538-42, 3155-3215. There is also no evidence of undue

criticism; the Air Force’s evaluation of AEgis’s past performance in the AFMSTT

competition resulted in an overall assessment of “substantial confidence.” AR 2384; see

also AR 2380-2420 (initial evaluations of AEgis’s past performance), 2943-44

(discussing the Air Force’s rationale for rating AEgis’s past performance of the AFMSTT

29
contract as “very good”). In short, there is no indication that Booz Allen was in a

position to favor or evaluate itself with respect to the AFMSTT contract.17

B. The Air Force’s Cost Realism Assessment and Technical Risk Rating
for Cole’s System Development and Sustainment Technical Subfactor
were not Arbitrary or Capricious.

AEgis argues that the Air Force’s cost realism analysis was arbitrary and

capricious on the grounds that the record does not adequately explain the Air Force’s

$0.42 million in adjustments to Cole’s proposed costs, in particular in light of the gap

between Cole’s proposed costs of $2.97 million and the government cost estimate of

$6.36 million. In addition, AEgis asserts that the Air Force violated the terms of the

solicitation by assigning Cole’s system development and sustainment technical approach

a “low” risk rating, which required little potential of increased cost, because the Air Force

acknowledged in its cost realism analysis that Cole’s proposed cost needed to be adjusted

and because Cole’s proposed cost was significantly less than the government estimate.

As AEgis’s counsel conceded at oral argument, AEgis’s argument is essentially that the

Air Force’s cost realism analysis and technical risk analysis were not thorough enough,

17
Because the court finds no support in the record for AEgis’s argument that Booz Allen
has a significant conflict of interest, the court finds no merit in AEgis’s additional argument that
the contracting officer violated FAR § 9.504 by failing to identify and evaluate potential OCI as
early in the acquisition process as possible and avoid, neutralize, or mitigate significant potential
OCI before contract award. The court finds that the OCI evaluation done in response to the
GAO protest satisfies the contracting officer’s obligations. See Turner Constr., 645 F.3d at
1386-87 (finding that the court “did not err by considering the [contracting officer’s] post-protest
investigation and analysis” and noting that “[c]ourts reviewing bid protests routinely consider
post-award OCI analyses and consider evidence developed in response to a bid protest”).

30
mainly because the Air Force did not consider the difference between the government

cost estimate and the Air Force’s cost adjustments to Cole’s proposal.

The government argues that the Air Force’s cost realism analysis was consistent

with the terms of the solicitation and is explained adequately in the record. In addition,

the government argues that the Air Force would have violated the terms of the solicitation

if the Air Force had compared Cole’s costs to the government cost estimate in its cost

realism analysis or technical risk assessment. The government also argues that its

technical risk evaluation is supported and that the Air Force’s adjustment to Cole’s costs

did not mean that Cole’s proposed approach presented more than “little potential to cause

disruption of schedule, increased cost, or degradation of performance” and that “[n]ormal

contractor effort and normal Government monitoring” would not “likely be able to

overcome any difficulties.” AR 536; see also supra note 7 (discussing the Air Force’s

rationale for this rating in the source selection decision).

The court finds, as did the GAO, that AEgis’s arguments are without merit. To

begin, it is clear, as the GAO found, that the Air Force documented its cost realism

evaluation. AR 3146-47 n.5; see also AR 2516-17 (initial evaluation), 2844 (proposal

analysis report), 2761 (source selection authority decision brief), 2880, 2887 (source

selection decision). AEgis’s contention that the Air Force should have noted that Cole’s

costs were significantly lower than the government cost estimate does not alter the

court’s conclusion. First, as the GAO noted, “the arguments presented suggest that

AEgis may have conflated the government estimate, i.e., the agency’s initial projection of

the cost of performing the first delivery order, with individual offeror[s’] GEMPCs,

31
where the agency adjusted each offeror’s estimated costs based on its proposed technical

approach.” AR 3146-47 n.5. Second, the court will not second guess the depth of the Air

Force’s cost realism analysis. “[T]he nature and extent of a price realism analysis is

ultimately within the sound exercise of the agency’s discretion, unless the agency

commits itself to a particular methodology in a solicitation.” Afghan Am. Army Servs.

Corp. v. United States, 90 Fed. Cl. 341, 358 (2009).

With regard to AEgis’s objection to the Air Force’s technical risk analysis, the

court agrees with the government. The Air Force’s risk evaluation is well documented.

See AR 2441 (initial evaluation), 2818 (proposal analysis report), 2879 (source selection

decision); see also AR 2696 (source selection authority decision brief discussion of the

strengths and weaknesses identified for Cole’s technical approach). In addition, the Air

Force’s technical risk evaluation expressly took into account the cost realism adjustment

and found that the adjustment “was not meaningful enough to raise the risk rating above

low.” AR 2880.

Because the Air Force’s cost realism evaluation and technical risk evaluation of

Cole’s proposal are consistent with the requirements of the solicitation and are supported

by the record, the court finds that AEgis’s arguments must be rejected.

C. The Air Force’s Past Performance Evaluation Was Not Arbitrary or
Capricious.

Finally, AEgis asserts that Cole’s score of “substantial confidence” for past

performance was unreasonable because the rating was based on a “bait and switch.”

Specifically, AEgis contends that Cole’s high score was predominantly attributable to the

32
past performance of Cole’s subcontractors even though the subcontractors will be

performing less than 25% of the work. In addition, AEgis argues that the Air Force

unequally evaluated AEgis’s past performance and Cole’s past performance by assigning

the same past performance rating of “substantial confidence” to AEgis and Cole although

AEgis had more contracts evaluated as “very relevant” and “very good.” AEgis claims

that this violated the terms of the solicitation, which stated that the government would

consider the relevancy of past performance, AR 541, and FAR § 15.305(a)(2)(i), which

generally requires an agency to consider the “currency and relevance” of past

performance information, among other things, in evaluating past performance. AEgis

also cites Johnson Controls World Servs., Inc.; Meridian Mgmt. Corp., B-281287.5

(Comp. Gen. June 21, 1999), in which the GAO found that an agency unreasonably gave

identical past performance scores to offerors with “significant differences” in relevant

experience.

The government argues that the solicitation did not require the Air Force to give a

specific weight to past performance by Cole as opposed to past performance by Cole’s

proposed subcontractors. Moreover, the government asserts that the Air Force’s past

performance ratings for Cole and AEgis are supported by the record.

The court agrees with the government. Agencies have “‘broad discretion’ in

evaluating past performance information, including the extent to which a prior contract is

considered ‘relevant.’” Innovative Test Asset Sols. LLC v. United States, 125 Fed. Cl.

201, 226 (2016) (quoting Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d

901, 910-11 (Fed. Cir. 2013). The Air Force’s “determination of relevance is owed

33
deference as it is among ‘the minutiae of the procurement process,’ which this court ‘will

not second guess.’” Glenn Def. Marine, 720 F.3d at 911 (quoting E.W. Bliss Co. v.

United States, 77 F.3d 445, 449 (Fed. Cir. 1996); Linc Gov’t Servs., LLC v. United States,

96 Fed. Cl. 672, 718 (2010); PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 539

(2010)).

Here, AEgis has not shown any violation of the FAR or solicitation requirements

in the Air Force’s evaluation of past performance. The solicitation, AR 355, 540-42, and

FAR § 15.305, expressly envision that the Air Force would consider recent, relevant past

performance by offerors’ proposed subcontractors. In the Air Force’s response to

AEgis’s supplemental protest before the GAO, the contracting officer acknowledged that

Cole’s proposed subcontractors would perform less than 25% of the work for the initial

delivery order. AR 3016. However, the contracting officer explained that the Air Force

determined that “[e]ach of the four [subcontractors] that [Cole] proposed is estimated to

complete 10% of the work over the life of the 5 year ID/IQ contract totaling 40% of the

effort.” AR 3016. The solicitation did not limit the Air Force’s past performance

evaluation to matters concerning only the initial delivery order. AR 540-43. AEgis

cannot, at this stage in the procurement process, challenge the requirements of the

solicitation itself. See Bannum, Inc. v. United States, 779 F.3d 1376, 1380 (Fed. Cir.

2015) (“A bidder that challenges the terms of a solicitation in the Court of Federal Claims

generally must demonstrate that it objected to those terms ‘prior to the close of the

bidding process.’” (citing Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315

(Fed. Cir. 2007)).

34
 The court also finds that AEgis’s reliance on Johnson Controls, B-281287.5

(Comp. Gen. June 21, 1999), to support its contention that Cole should not have received

the same rating as AEgis is misplaced. In Johnson Controls, the GAO found that an

agency unreasonably gave identical past performance scores to one offeror that

“demonstrated successful prior performance on contracts of the same or greater

complexity on every one of the major functions” and another offeror that “fail[ed] to

identify experience in many of the major functions,” while downgrading the past

performance rating for a third offeror that failed to identify a particular type of contract

experience. Id. (concluding that this error “effectively removed the evaluation weight

assigned this subfactor”). In this case, AEgis received a past performance rating of

“substantial confidence” based on three “very relevant” contracts and one “somewhat

relevant” contract that were each evaluated to be “very good.” AR 2885-86. One of

AEgis’s “very relevant” efforts was performed by a proposed subcontractor. AR 2886.

Cole received a rating of “substantial confidence” based on three “very relevant”

contracts, evaluated as “satisfactory” quality; four “relevant” contracts, evaluated as

“exceptional and “very good” quality; and two “somewhat relevant” contracts that were

evaluated as “very good” and “satisfactory.” AR 2886. The source selection authority

noted that Cole’s proposed subcontractors were responsible for some of Cole’s “very

relevant” past performance and past performance that earned “exceptional” and “very

good” ratings. Cole had identified more very relevant and relevant past performance and

therefore was found to have “a slight advantage over AEgis.” AR 2888. Based on this

record, the court cannot say that the Air Force “entirely failed to consider an important

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

evidence before the agency, or [the decision] is so implausible that it could not be

ascribed to a difference in view or the product of agency expertise.” Ala. Aircraft Indus.,

586 F.3d at 1375 (citation omitted). The Air Force’s past performance rating is supported

by the record. AEgis’s objection to the rating amounts to nothing more than a

disagreement with the Air Force’s assessment and thus must be rejected.

IV. CONCLUSION

For the reasons above, AEgis’s motion for judgment on the administrative record

is DENIED.18 The government’s and Cole’s cross-motions for judgment on the

administrative record are GRANTED. The clerk is directed to enter judgment

accordingly.

IT IS SO ORDERED.

s/Nancy B. Firestone
NANCY B. FIRESTONE
Senior Judge

18
AEgis’s pending motion requested permanent injunctive relief under 28 U.S.C. §
1491(b)(2). In addition, AEgis filed a motion (ECF No. 34) to strike the declaration of Joshua G.
Hurst, program manager for AFMSTT, which the government relied on in its opposition to
AEgis’s request for permanent injunctive relief. Because AEgis has failed to establish success
on the merits, it is not entitled to permanent injunctive relief. See, e.g., PGBA, LLC v. United
States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004). In addition, because the court finds that AEgis
is not entitled to permanent injunctive relief, AEgis’s motion to strike is DENIED AS MOOT.

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