Case: 20-1390 Document: 42 Page: 1 Filed: 10/05/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
G4S SECURE SOLUTIONS (USA), INC.,
Plaintiff-Appellant
v.
UNITED STATES, ISS ACTION, INC.,
Defendants-Appellees
______________________
2020-1390
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-01329-TCW, Judge Thomas C. Wheeler.
______________________
Decided: October 5, 2020
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GERALD HOWARD WERFEL, Baker, Cronogue, Tolle &
Werfel, LLP, McLean, VA, for plaintiff-appellant. Also rep-
resented by HENRY TODD WHAY.
LAUREN MOORE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for defendant-appellee United States. Also repre-
sented by JEFFREY B. CLARK, TARA K. HOGAN, ROBERT
EDWARD KIRSCHMAN, JR.
ROBERT JOSEPH SNECKENBERG, Crowell & Moring,
Case: 20-1390 Document: 42 Page: 2 Filed: 10/05/2020
2 G4S SECURE SOLUTIONS (USA) v. UNITED STATES
LLP, Washington, DC, for defendant-appellee ISS Action,
Inc. Also represented by DANIEL RUBEN FORMAN.
______________________
Before DYK, MOORE, and TARANTO, Circuit Judges.
MOORE, Circuit Judge.
G4S Secure Solutions (USA), Inc., appeals a final deci-
sion of the United States Court of Federal Claims granting
the government judgment on the administrative record for
its award to ISS Action, Inc. and denying G4S’s cross-mo-
tion for judgment on the administrative record and its re-
quest for a permanent injunction. G4S Secure Sols. (USA),
Inc. v. United States, 146 Fed. Cl. 265, 267 (2019). Because
the government’s contract award was not arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law, we affirm.
BACKGROUND
The U.S. Department of Homeland Security’s Customs
and Border Protection (CBP) issued a Solicitation for secu-
rity and transportation services on the southwest border of
the United States. J.A. 7. The Solicitation included three
evaluation factors: (1) Experience and Risk Aware-
ness/Mitigation, (2) Oral Presentation, and (3) Pricing
Spreadsheet and Sample Task Order Submission. Id. To
demonstrate experience under the first evaluation factor,
offerors were required to submit a corporate experience
questionnaire (CEQ), identifying “up to three (3) reference
projects . . . demonstrating relevant experience performing
projects similar in size, scope, and complexity” to the pro-
ject in the Solicitation. J.A. 10003; 10012. An offeror was
permitted to include in its CEQ two of its own past con-
tracts and one of a teaming partner (i.e., a subcontractor),
if the submission was under a Contractor Teaming Ar-
rangement (CTA). J.A. 10003; 10012. In that case, the
“Government [would] assess the collective experience in
each vendor’s submittal.” J.A. 10012.
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G4S SECURE SOLUTIONS (USA) v. UNITED STATES 3
G4S Secure Solutions (USA), Inc. and ISS Action, Inc.,
were the only two offerors to respond to the Solicitation. As
part of its submission, G4S’s CEQ identified three of its
own prior contracts. ISS’s CEQ identified two of its own
prior contracts and one of its CTA partner’s prior contracts.
Following the first phase of CBP’s evaluation, both G4S
and ISS received a rating of “High Confidence” and were
invited to participate in the second phase of the evaluation.
J.A. 8. In phase two, G4S received a rating of “Some Con-
fidence” for its technical and management approach (factor
two), while ISS received a “High Confidence” rating. J.A.
15. And although CBP viewed both pricing proposals as
“low performance risks,” ISS’s proposal was $100 million
less than G4S’s (factor three). J.A. 7–8. CBP selected ISS
after determining that the “overall technical approach and
expected performance level is higher for ISS Action and
that level of performance costs much less than [G4S];
therefore, ISS Action offers the best value.” J.A. 10288.
G4S filed a bid protest in the Court of Federal Claims
challenging CBP’s contract award to ISS as arbitrary, ca-
pricious, an abuse of discretion, and as otherwise not in ac-
cordance with the law. ISS intervened. G4S and the
government filed cross-motions for judgment on the admin-
istrative record. G4S also moved to enjoin ISS from com-
mencing work under the contract. The Court of Federal
Claims granted the government’s motion for judgment on
the administrative record and denied G4S’s cross-motion
and its request for a permanent injunction. G4S appeals.
We have jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review de novo Court of Federal Claims decisions
granting judgment on the administrative record in bid pro-
test cases. Bannum, Inc. v. United States, 404 F.3d 1346,
1351 (Fed. Cir. 2005). Under this standard, we consider
whether the agency’s action was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
Case: 20-1390 Document: 42 Page: 4 Filed: 10/05/2020
4 G4S SECURE SOLUTIONS (USA) v. UNITED STATES
law.” See 5 U.S.C. § 706(2)(A); 28 U.S.C. § 1491(b)(4). We
may set aside a procurement decision “if it lacked a rational
basis or if the agency’s decision-making process involved a
clear and prejudicial violation of statute, regulation, or pro-
cedure.” Croman Corp. v. United States, 724 F.3d 1357,
1363 (Fed. Cir. 2013). An agency is “entitled to a high de-
gree of deference when faced with challenges to procure-
ment decisions.” Orion Tech., Inc. v. United States, 704
F.3d 1344, 1351 (Fed. Cir. 2013).
G4S’s only merits challenge is to the trial court’s deter-
mination that “the record . . . supports CBP’s decision that
ISS’s ‘collective experience’ was sufficient to warrant a
High Confidence rating” in phase one of its evaluation. 1
J.A. 13. G4S argues that CBP improperly permitted ISS to
proceed to phase two on the basis of two contracts in ISS’s
CEQ that were not similar in size, scope, and complexity to
the work in the request for quotes. We do not agree. One
of ISS’s contracts involved armed transportation services,
and both contracts involved armed guard and security ser-
vices, like those described in the Solicitation. J.A. 10100–
02. Moreover, G4S concedes that “ISS’s CTA partner had
qualifying experience[.]” G4S Reply Br. at 8. And as the
CEQ explained, CBP assessed “the collective experience in
each vendor’s submittal.” J.A. 10012. Following a phone
interview to evaluate ISS’s factor one submission, CBP
noted several aspects that justified inviting ISS to partici-
pate in phase two, including (1) that ISS’s “contracts reflect
the ability to hire and train personnel and demonstrate
similar contract performance duties”; (2) ISS’s familiarity
with and experience in related work and the direct experi-
ence of its CTA partner’s manager; (3) ISS’s ability to main-
tain and train its staff; and (4) ISS’s policy of maintaining
1 G4S also challenges the trial court’s denial of its
request for a permanent injunction. This challenge is con-
tingent on G4S succeeding in its merits challenge.
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G4S SECURE SOLUTIONS (USA) v. UNITED STATES 5
100% staffing and 100% of its vehicles as mission capable
at all times. J.A. 10132. On this record, we hold that the
Court of Federal Claims did not err in holding that CBP’s
determination that ISS’s experience and risk aware-
ness/mitigation supported a “High Confidence” rating was
not arbitrary, capricious, or in violation of law. Because
the Court of Federal Claims did not err in granting the gov-
ernment judgment on the administrative record, denying
G4S’s request for a permanent injunction was proper.
CONCLUSION
We have considered the parties’ remaining arguments
and do not find them persuasive. Because the Court of Fed-
eral Clams did not err in granting the government judg-
ment on the administrative record and in denying G4S’s
request for a permanent injunction, we affirm the judg-
ment.
AFFIRMED