Xtec, Inc. v. United States

Sn the Auited States Court of Federal Clans

BID PROTEST
No. 20-1078C
Filed Under Seal: March 1, 2021
Reissued: March 30, 2021*

)
XTEC, INC., )
)
Plaintiff, )
) Post-Award Bid Protest; Judgment Upon
Vv. ) the Administrative Record, RCFC 52.1;
) RCFC 12(b)(1), Subject-Matter
THE UNITED STATES, ) Jurisdiction; Motion To Supplement The
) Administrative Record; Best Value.
Defendant, )
)
Vv. )
)
GUIDEHOUSE LLP, )
)
Defendant-Intervenor. )
)

David S. Cohen, Counsel of Record, John. O’Brien, Of Counsel, Cordatis, LLP,
Arlington, VA, for plaintiff.

Andrew J. Hunter, Trial Attorney, Eric P. Bruskin, Assistant Director, Robert E.
Kirschman, Jr., Director, Jeffrey B. Clark, Acting Assistant Attorney General, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, DC; John
W. Cox, Of Counsel, United States Department of State, for defendant.

Brian G. Walsh, Counsel of Record, Tracye Winfrey Howard, Of Counsel, Moshe B.
Broder, Of Counsel, Sarah B. Hansen, Of Counsel, Nicole E. Giles, Of Counsel, Wiley Rein,
LLP, Washington, DC, for defendant-intervenor.

“ This Memorandum Opinion and Order was originally filed under seal on March 1, 2021. ECF No. 71.
The parties were given an opportunity to advise the Court of their views with respect to what information,
if any, should be redacted from the Memorandum Opinion and Order. On March 30, 2021, the
government filed a joint status report on behalf of the parties indicating that no redactions are necessary.
ECF No. 73. And so, the Court is reissuing its Memorandum Opinion and Order, dated March 30, 2021,
as the public opinion.
MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge
I. INTRODUCTION

Plaintiff, XTec, Inc. (“XTec’”), brings this post-award bid protest action challenging the
United States Department of State’s (“State Department”) evaluation process and decision to
award an indefinite-delivery, indefinite quantity contract for identity and credential management
products and services (the “IDMS Contract’) to Guidehouse, LLP (“Guidehouse’). The parties
have filed cross-motions for judgment upon the administrative record, pursuant to Rule 52.1 of
the Rules of the United States Court of Federal Claims (“RCFC”). See generally Pl. Mot.; Def.
Mot.; Def.-Int. Mot. The government and Guidehouse have also moved to dismiss XTec’s claim
regarding the issuance of a post-award task order to Guidehouse for lack of subject-matter
jurisdiction, pursuant to the Federal Acquisition Streamlining Act and RCFC 12(b)(1). Def.
Mot. at 20-23; Def.-Int. Mot. at 13-19.

In addition, XTec has moved for a preliminary injunction and for a temporary restraining
order seeking to, among other things, enjoin the State Department from continuing with the
performance of the IDMS Contract, pursuant to RCFC 65. See generally Pl. Mot. for TRO; Pl.
Mot. for PI. Finally, XTec has also moved to supplement the administrative record with the

Declaration of Samantha East. See generally Pl. Mot. to Supp.

For the reasons set forth below, the Court: (1) DENIES XTec’s motion to supplement
the administrative record; (2) GRANTS the government’s and Guidehouse’s partial motions to
dismiss; (3) DENIES XTec’s motion for judgment upon the administrative record; (4) GRANTS
the government’s and Guidehouse’s respective cross-motion for judgment upon the
administrative record; (5) DENIES XTec’s motions for a temporary restraining order and fora

preliminary injunction; and (6) DISMISSES the complaint.
II. FACTUAL AND PROCEDURAL BACKGROUND!
A. Factual Background

This bid protest dispute involves a challenge to the State Department’s evaluation process
and decision to award the IDMS Contract to Guidehouse. The contract at issue was awarded
pursuant to the State Department’s Solicitation No. 19AQMM19R0302 (the “Solicitation”.
Compl. at {[5; see generally AR Tab 2; AR Tab 16; AR Tab 22. XTec is an unsuccessful offeror

in connection with that procurement. Compl. at{ 1.

As background, the State Department’s Bureau of Diplomatic Security is responsible for
overseeing department-wide identification systems that are designed to keep the identities and
credentials of agency employees and contractors secure. AR Tab | at2. The State Department’s
current identification system is called One Badge, which is an identity management system and
credential management system solution that uses, among other things, personal identity
verification (“PIV”) cards to control access to agency facilities. /d.; AR Tab 2 at 26. XTec is the
incumbent provider of IDMS products and services to the State Department. AR Tab 6 at 272.

1. The Solicitation

On July 2, 2019, the State Department issued the Solicitation to procure continued IDMS
products and services to support the One Badge system. AR Tab 2 at 118. The Solicitation
provides that the awardee “shall provide all labor, hardware, software, interfaces, cards,
consumables, and services necessary to provide the [State] Department with an end -to-end
identity and credential management solution.” AR Tab 16 at 453. The Solicitation also provides
that the State Department will consider the following criteria during a multi-phase evaluation

process:

PHASE I:

e Factor 1: Performance Confidence Assessment
o Subfactor 1: Relevant Experience
o Subfactor 2: Past Performance

' The facts recited in this Memorandum Opinion and Order are taken from the administrative record
(“AR”); XTec’s motion for judgment upon the administrative record (Pl. Mem.”); and the government’ s
and Guidehouse’s partial motions to dismiss and cross-motions for judgment upon the administrative
record (“Def. Mot.”; “Def. -Int. Mot.”’). Except where otherwise noted, the facts cited herein are
undisputed.
PHASE Il:

e Factor 2: Technical Approach and Demonstrated Functionality/Capability
e Factor 3: Task Orders
e Factor 4: Cost/Price
AR Tab 22 at 670. In addition, the Solicitation provides that, when combined, the non-price

evaluation factors are “significantly more important than price” and that the IDMS Contract will

be awarded on a best value, trade-off basis. Jd.

With regards to the evaluation of proposals, the Solicitation provides that, during Phase I,
the agency will evaluate each offeror’s relevant experience and past performance to determine
each offeror’s perceived ability to successfully perform the Solicitation’s requirements. Jd. at
672. The Solicitation also provides that each offeror will receive a relevant experience rating of

99 ¢¢.

either, “very relevant,” “relevant,” “somewhat relevant” or “not relevant.” AR Tab 14 at 341.

In addition, the Solicitation requires that each offeror will receive a past performance

29 ce 90 ¢¢.

rating of “substantial confidence,” “satisfactory confidence,” “limited confidence,” “no
confidence” or “neutral/unknown confidence.” /d. at 341-42. In this regard, the Solicitation
provides that only those offerors who receive the highest combined ratings during Phase I will be

considered during Phase II and remain eligible for award. AR Tab 22 at 674.

The Solicitation also provides that, during Phase II, each remaining offeror will submit a
technical and cost/price proposal that includes, among other things, performance work
statements for two sample task orders. Jd. at 674-75. Specifically, the Solicitation requires that
the two sample task orders be priced on the basis of “Time and Materials, Labor Hour[,] Firm
Fixed Price, or any combination thereof” and that the agency will evaluate cost and price using
each proposal’s sample task orders. Jd. at 587,677. The Solicitation also provides that each
proposal will be reviewed by, among other entities, a technical evaluation panel (“TEP”) that
will assess each proposal’s strengths, weaknesses, risks and deficiencies and assign each

proposal one of the following four ratings in connection with Factors 2 and 3:

Rating Definition

Superior Proposal meets all solicitation requirements, demonstrates a good
understanding of the requirements and has features that offer
significant advantages to the Government. Advantages/strengths
generally outweigh any disadvantages/weaknesses. Good

probability of success with very low degree of risk of unsuccessful
performance.

Acceptable Proposal meets basic solicitation requirements and demonstrates an
adequate understanding of the requirements but does not offer
significant advantages to the Government over basic RFP
requirements. Disadvantages/weaknesses are not significant, unless
significant advantages are proposed that outweigh significant
disadvantages. Where there were areas of concem, clarifications
given by Offeror, were acceptable. Reasonable probability of
success with low degree of risk of unsuccessful performance.

Marginal Proposal does not clearly meet all requirements, nor does it
demonstrate an adequate approach and understanding of the
requirements. The proposal has one or more weaknesses which
may require correction. Some areas of concern may not have been
fully addressed by Offeror, leaving some ambiguities. Risk of
unsuccessful performance is moderate.

Unacceptable Proposal does not meet requirements and contains one or more
significant deficiencies. Risk of unsuccessful performance is high.
Proposal is unawardable without being rewritten.

Id. at 675-76. In this regard, the Solicitation provides that the ratings for Factors 2 and 3 will be
combined with the ratings for Factor 1 into a single, overall technical rating. Jd. at677. Lastly,
the Solicitation provides that the contracting officer will perform a trade-off analysis to

determine which proposal offers the best value to the government and whether a price premium

is justified. Jd. at 670.
2). The Evaluation Process

The State Department received timely Phase I proposals from several offerors, including
XTec and Guidehouse. See AR Tabs 5 and 6; AR Tab 14 at 346. The agency rated each

offeror’s relevant experience and past performance as follows:

Offeror Performance Confidence Ratings
ICF, Inc. Relevant/Substantial Confidence
Perspecta Very Relevant/Substantial Confidence
Guidehouse Somewhat Relevant/Substantial Confidence
XTec Very Relevant/Substantial Confidence

AR Tab 14 at 343. Based upon these ratings, all of the offerors advanced to Phase II and
submitted technical and cost/price proposals. Jd. at 346; see generally AR Tabs 23-49.

During Phase II of the evaluation process, the State Department rated each offeror’s

technical proposal as follows:

Factor ICF, Inc. Perspecta | Guidehouse XTec
Factor 2: Technical Marginal Marginal Superior Acceptable
Approach and Demonstrated

Functionality/Capability

Factor 3: Task Orders Marginal Marginal Superior Acceptable
Overall Rating Marginal Marginal Superior Acceptable

AR Tab 64 at 1800.

Several statements found in Guidehouse’s Phase II proposal are relevant to this dispute.
First, Guidehouse states in its Phase II proposal that, if “user identity data (biographic and
biometric) transferred from the incumbent to [Guidehouse] is not usable or incomplete due to
format, structure, quality, or content,” Guidehouse “will need to revisit [its] pricing and
approach.” AR Tab 23 at 722. Guidehouse also states in its proposal that, if “personalized card
cryptographic, diversification, or serialization data is incomplete or cannot be provided by the
incumbent, then existing cards cannot be managed by [Guidehouse]” and Guidehouse “will need
to revisit [its] pricing and approach.” /d. In addition, Guidehouse states in its proposal that, “[i]f
any equipment requirements were missed and identified in the [government’s] review of
[Guidehouse’s Bill of Materials, ] Guidehouse may change the material cost requirement and

price of [Task Order #1] accordingly.” AR Tab 26 at 788.

Guidehouse also represents in its proposal that its IDMS solution “is successfully
deployed at 16 Federal agencies, such as the Nuclear Regulatory Commission, the Social
Security Administration (SSA), DHS, and US Intelligence Agencies.” AR Tab 23 at 695. In this
regard, Guidehouse represents that “Team Guidehouse,” which includes Guidehouse and its
proposed subcontractor for the IDMS Contract, Appian, “performed bulk user and card
migrations for organizations of larger size and scale, such as the DHS TWIC program where our
team transitioned more than | million identities (biographic, biometric, and attribute) and
cryptographic data (Gemalto and Idemia/Oberthur) cards to [Guidehouse’s IDMS solution].” Jd.
at 696. Lastly, Guidehouse represents that Team Guidehouse participated in the “DHS HSPD-12
transition of 350,000 cards and identities [from] Xtec’s AuthenX [IDMS solution] to Centech
Security Manager and Radiant Logic.” Jd. at 706.

3. The Price Analysis, Source Selection Decision And Award

After evaluating Factors 1, 2 and 3, the State Department evaluated each offeror’s
proposed price for reasonableness and realism. See generally AR Tab 51. The agency
determined that Guidehouse and XTec were the only two offerors that proposed realistic prices
for their labor rates, subcontractor labor rates, indirect cost rates, material costs and other direct
costs, and the cost elements leading to their proposed firm fixed prices. Jd. at 1722, 1727-28.
And so, the agency concluded that the proposal submitted by XTec and Guidehouse “reflect a
clear understanding of the requirements and [were] consistent with the unique methods of
performance and materials described in [each offeror’s] technical proposal.”? Jd. at 1728.
Because Guidehouse’s proposal was both higher-rated and lower-priced than XTec’s, the
contracting officer did not perform a best value trade-off between the two proposals. See AR
Tab 64 at 1813, 1821-22. And so, the State Department awarded the IDMS Contract to
Guidehouse on March 18, 2020. AR Tab 66 at 1825.

4. XTec’s GAO Protest And Task Order #1

On March 27, 2020, XTec filed a protest before the Government Accountability Office
(“GAO”) challenging the State Department’s evaluation process and award decision. Compl. at
4 24; AR Tab 76 at 1897. The GAO denied XTec’s protest on July 2, 2020. See generally AR
Tab 89

On July 14, 2020, Guidehouse submitted a Time and Materials proposal for Task Order
#1 under the IDMS Contract to the State Department. AR Tab 101 at 2707. On July 16, 2020,
the State Department awarded Task Order #1 to Guidehouse as a Time and Materials task order.
AR Tab 99 at 686, 2684, 2686.

XTec commenced this bid protest action on August 27, 2020. See Compl.

2 The State Department rated each offeror’s price proposal as follows:

Offeror Overall Proposed Price | Realism Determination | Additional Performance
Risk

XTec $49,726,796 Realistic No

Perspecta $41,601,892 Unrealistic Yes

ICF $60,643,132 Unknown Yes

Guidehouse $46,238,736 Realistic No

AR Tab 51 at 1722.
B. Procedural Background

On August 27, 2020, XTec filed the complaint and motions for a temporary restraining
order and fora preliminary injunction. See generally ComplL.; Pl. Mot. for TRO; Pl. Mot. for PI.
On the same date, Guidehouse filed an unopposed motion to intervene, which the Court granted
on August 31,2020. See generally Def.-Int. Mot. to Intervene; Order, dated August 31, 2020.
On August 31, 2020, the Court also entered a Protective Order in this matter. See generally

Protective Order.

On September 25, 2020, the government filed the administrative record, which it
subsequently amended on October 14, 2020, and November 19, 2020. See generally AR. On
October 9, 2020, the government filed an unopposed motion to remand Count I of the complaint
to the State Department for reconsideration, which the Court granted on October 13, 2020. See
generally Def. Mot. to Remand; Order, dated October 13, 2020.

On October 12, 2020, XTec filed a motion for judgment upon the administrative record.
See generally Pl. Mot. On October 20, 2020, XTec filed a motion to supplement the
administrative record. See generally Pl. Mot. to Supp. On November 3, 2020, Guidehouse filed
a response and opposition to XTec’s motion to supplement the administrative record. See
generally Def.-Int. Resp. On November 18, 2020, the government filed a response and
opposition to XTec’s motion to supplement the administrative record. See generally Def. Resp.
On November 23, 2020, XTec filed a reply brief in support of its motion to supplement the

administrative record. See generally Pl. Reply.

On October 26, 2020, the government and Guidehouse filed their respective responses
and oppositions to XTec’s motion for judgment upon the administrative record, partial motions
to dismiss XTec’s claim regarding the issuance of Task Order #1 for lack of subject-matter
jurisdiction and cross-motions for judgment upon the administrative record. See generally Def.

Mot.; Def.-Int. Mot.; Def.-Int. Mem.

On November 2, 2020, XTec filed a response and opposition to the government’s and
Guidehouse’s respective partial motions to dismiss and cross-motions for judgment upon the
administrative record, anda reply in support of its motion for judgment upon the administrative
record. See generally Pl. Resp. On November 9, 2020, the government and Guidehouse filed
their respective reply briefs in support of their motions. See generally Def. Reply; Def.-Int.
Reply.

On November 30, 2020, XTec filed a motion to voluntarily dismiss Count I of the
complaint, which the Court granted on December 4, 2020. See generally Pl. Mot. to Dismiss;
Order, dated December 4, 2020. On February 18, 2020, the Court held oral arguments on the

parties’ cross-motions. See generally Oral Arg. Tr.

These matters having been fully briefed, the Court addresses the pending motions.
Hil. LEGALSTANDARDS

A. Bid Protest Jurisdiction

The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid
protests brought 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). In bid protest cases, this Court reviews agency actions
under the Administrative Procedure Act’s (“APA”) “arbitrary and capricious” standard. See 28
U.S.C. § 1491(b)(4) (adopting the standard of review set forth in the Administrative Procedure
Act). And so, under the APA’s standard, an award may be set aside if, “‘(1) the procurement
official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation
of regulation or procedure.’” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351
(Fed. Cir. 2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238
F.3d 1324, 1332 (Fed. Cir. 2001)).

The United States Court of Appeals for the Federal Circuit has recognized that:

When a challenge is brought on the first ground, the test is whether the
contracting agency provided a coherent and reasonable explanation of its
exercise of discretion, and the disappointed bidder bears a “heavy burden”
of showing that the award decision had no rational basis. When a challenge
is brought on the second ground, the disappointed bidder must show a clear
and prejudicial violation of applicable statutes or regulations.

Id. (citations omitted). In addition, when reviewing an agency’s procurement decision, the Court
should recognize that the agency’s decision is entitled to a “presumption of regularity.” Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,415 (1971), abrogated by Califano v.
Sanders, 430 U.S. 99 (1977). “The [C]ourt should not substitute its judgment for that of a
procuringagency....” Cincom Sys., Inc. v. United States,37 Fed. Cl. 663, 672 (1997). And so,
“It]he protestor must show, by a preponderance of the evidence, that the agency’s actions were
either without a reasonable basis or in violation of applicable procurement law.” Info. Tech. &
Applics. Corp. v. United States, 51 Fed. Cl. 340, 346 (2001), aff'd, 316 F.3d 1312 (Fed. Cir.
2003) (citation omitted).

The Court’s standard of review “is highly deferential.” Advanced Data Concepts, Inc. v.
United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000). As longas there is “‘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.’”” 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)). But, if “the agency ‘entirely fail[s] to consider an important aspect of the problem
[or] offer[s] an explanation for its decision that runs counter to the evidence before the agency,’”
then the resulting action lacks a rational basis and, therefore, is defined as “arbitrary and
capricious.” 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)).

B. RCFC 12(b)(1) And FASA

When deciding a motion to dismiss upon the ground that the Court does not possess
subject-matter jurisdiction pursuant to RCFC 12(b)(1), this Court must assume that all
undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the
non-movant’s favor. Erickson v. Pardus,551 U.S. 89,94 (2007); see also RCFC 12(b)(1). But,
plaintiff bears the burden of establishing subject-matter jurisdiction, and plaintiff must do so by a
preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748
(Fed. Cir. 1988). And so, should the Court determine that “it lacks jurisdiction over the subject
matter, it must dismiss the claim.” Matthews v. United States,72 Fed. Cl. 274, 278 (2006)
(citations omitted); see also RCFC 12(h)(3).

It is well-established that the Court does not possess subject-matter jurisdiction to
consider challenges to the issuance of a post-award task order. Specifically, the Federal

Acquisition Streamlining Act (“‘“FASA”) provides in pertinent part that:

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(1) A protest is not authorized in connection with the issuance or proposed
issuance of a task or delivery order except for—(A) a protest on the ground
that the order increases the scope, period, or maximum value of the contract
under which the orderis issued; or (B) a protest of an order valued in excess
of $10,000,000. (2) Notwithstanding section 3556 of title 31, the
Comptroller General of the United States shall have exclusive jurisdiction
of a protest authorized under paragraph (1)(B).

41 U.S.C. § 4106(f)(1), (2). And so, FASA generally prohibits a plaintiff from bringing a
challenge to the issuance, or proposed issuance, of a task order in this Court. Jd.; see also SRA
Int'l, Inc. v. United States, 766 F.3d 1409, 1413 (Fed. Cir. 2014) (holding that FASA “effectively

eliminates all judicial review for protests made in connection with . . . a task order[.]’”’).
Cc. Judgement Upon The Administrative Record

Unlike a summary judgment motion brought pursuant to RCFC 56, “the existence of
genuine issues of material fact does not preclude judgment on the administrative record” under
RCFC 52.1. Tech. Sys., Inc. v. United States, 98 Fed. Cl. 228, 242 (2011); see RCFC 56.
Rather, the Court’s inquiry is “whether, given all the disputed and undisputed facts, a party has
met its burden of proof based on the evidence in the record”. 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
(Fed. Cir. 2005)).

D. Unstated Evaluation Criteria And Disparate Treatment Claims

The Federal Circuit has held that, to succeed upon an unstated evaluation criteria claim, a
protestor must show that: (1) the agency used a significantly different basis in evaluating its
proposals than was disclosed and (2) that the protestor has been prejudiced as aresult. Banknote
Corp. of Am. v. United States, 56 Fed. Cl. 377, 387 (2003), aff'd, 365 F.3d 1345 (Fed. Cir. 2004).
The Federal Circuit has also held that, to succeed in a disparate treatment claim, “a protestor
must show that the agency downgraded its proposal for deficiencies that were ‘substantively
indistinguishable’ or nearly identical from those contained in other proposals.” Office Design

Grp. v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020).
E. Supplementing The Administrative Record

The Federal Circuit held in Axiom Resource Management, Inc. v. United States, that the

“parties’ ability to supplement the administrative record is limited” and that the administrative

11
record should only be supplemented “if the existing record is insufficient to permit meaningful
review consistent with the [Administrative Procedure Act].” 564 F.3d 1374, 1379-81 (Fed. Cir.
2009); see also Caddell Constr. Co., Inc. v. United States, 111 Fed. Cl. 49, 93 (2013). The
Federal Circuit has also recognized that the Supreme Court held in Camp v. Pitts that “‘the focal
point for judicial review should be the administrative record already in existence, not some new
record made initially in the reviewing court.’” Axiom Res. Mgmt., Inc., 564 F.3d at 1379
(quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)).

This focus is maintained to prevent courts from using new evidence to “convert the
arbitrary and capricious standard into effectively de novo review.” L-3 Comme ‘ns EOTech, Inc.
v. United States, 87 Fed. Cl. 656, 671 (2009) (internal quotation marks omitted); see also
Murakami v. United States, 46 Fed. Cl. 731, 735 (2000). And so, this Court has interpreted the
Federal Circuit’s directive in Axiom, within the context of bid protest matters, to mean that
supplementation of the administrative record is permitted to correct mistakes and fill gaps, but is
not permitted when the documents proffered are unnecessary for an effective review of the

government’s decision. L-3 Comme ’ns EOTech, Inc.,87 Fed. Cl. at 672.
F. Injunctive Relief

Lastly, the Tucker Act authorizes this Court to “award any relief that the court considers
proper, including. . . injunctive relief” in bid protest matters. 28 U.S.C. § 1491(b)(2); see RCFC
65. But, “a preliminary injunction is an extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (emphasis omitted) (citation omitted); Intel Corp. v. ULSI
Sys. Tech., Inc., 995 F.2d 1566, 1568 (Fed. Cir. 1993) (The award of “a preliminary injunction is
a drastic and extraordinary remedy that is not to be routinely granted.”). In deciding whether to
grant emergency injunctive relief, the Federal Circuit has directed that the Court consider: (1)
whether the plaintiff is likely to succeed on the merits of the case; (2) whether the plaintiff will
suffer irreparable harm if the Court withholds injunctive relief; (3) whether the balance of
hardships to the respective parties favors the grant of injunctive relief; and (4) whether it is in the
public interest to grant injunctive relief. PGBA, LLC v. United States, 389 F.3d 1219, 1228-29
(Fed. Cir. 2004); see also FMC Corp. v. United States ,3 F.3d 424, 427 (Fed. Cir. 1993); OAO
Corp. v. United States, 49 Fed. Cl. 478, 480 (2001).

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In addition, the Federal Circuit has held that “[n]o one factor, taken individually, is
necessarily dispositive. ... [T]he weakness of the showing regarding one factor may be
overborme by the strength of the others.” FMC Corp., 3 F.3d at427. Conversely, “the absence
of an adequate showing with regard to any one factor may be sufficient, given the weight or lack
of it assigned the other factors, to justify the denial” of a motion for a preliminary injunction. /d.
And so, the Federal Circuit has held that “a movant is not entitled to a preliminary injunction if
he fails to demonstrate a likelihood of success on the merits.” Nat’/ Steel Car, Ltd. v. Canadian

Pac. Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir. 2004).
IV. LEGAL ANALYSIS

XTec asserts ten challenges to the State Department’s evaluation process and award
decision for the IDMS Contract, namely that: (1) the State Department should have rejected
Guidehouse’s proposal, because Guidehouse transferred substantial risks and costs to the agency
in violation of the Solicitation; (2) Guidehouse improperly omitted necessary equipment from its
proposal; (3) the State Department issued a post-award task order to Guidehouse that, among
other things, violated the terms of the Solicitation and applicable law, provided an unfair
competitive advantage to Guidehouse, constituted unequal discussions with offerors, and resulted
in a cardinal change to the IDMS Contract; (4) the State Department’s price realism analysis is
unsupported and does not account for missing items in Guidehouse’s proposal; (5) Guidehouse’s
proposal contains a material misrepresentation regarding its past experience; (6) the State
Department improperly declined to assign a significant weakness to Guidehouse’s proposal,
because of Guidehouse’s alleged inability to demonstrate symmetric key support; (7) the State
Department improperly awarded a strength to Guidehouse’s proposal for having a “widely
deployed, standards-compliant system” and treated offerors unequally in evaluating this issue;
(8) the State Department failed to assign a weakness to Guidehouse’s proposal and failed to
assign a strength to XTec’s proposal, for operation in degraded network conditions; (9) the State
Department unreasonably assigned a significant weakness to XTec’s proposal and assigned a
superior rating to Guidehouse’s proposal, for the use of proprietary products; and (10) the State
Department improperly assigned a weakness to XTec’s proposal and improperly assigned a
strength to Guidehouse’s proposal regarding the instructions and tools needed to conduct

independent oversight of the proposed IDMS solutions. Pl. Mot. at5-32. And so, XTec

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requests, among other things, that the Court set aside the State Department’s decision to award

the IDMS Contract to Guidehouse. Compl. at 35.

The government and Guidehouse counter that the State Department conducted a rational
evaluation process and that the agency reasonably decided to award the IDMS Contract to
Guidehouse, in accordance with the terms of the Solicitation and applicable law. Def. Mot. at 8-
41; Def.-Int. Mem. at 9-42. The government and Guidehouse have also moved to dismiss
XTec’s claim regarding the issuance of Task Order #1 for lack of subject-matter jurisdiction.
Def. Mot. at 20-23; Def.-Int. Mot. at 13-19. And so, the government and Guidehouse request
that the Court dismiss XTec’s claim challenging Task Order #1 and deny this bid protest. Def.
Mot. at 41; Def.-Int. Mem. at 42.

In addition, XTec has moved to supplement the administrative record in this case with the
Declaration of Samantha East. See generally Pl. Mot. to Supp. Lastly, XTec has also moved for
a preliminary injunction anda temporary restraining order to enjoin the State Department from

continuing with the performance of the IDMS Contract. Pl. Mot. for TRO; Pl. Mot. for PI.

For the reasons set forth below, a careful review of the administrative record shows that
the Court does not possess subject-matter jurisdiction to consider XTec’s claim challenging the
issuance of Task Order #1. XTec also has not shown that supplementing the extensive
administrative record in this case is warranted. In addition, the administrative record makes clear
that the State Department’s evaluation process and decision to award the IDMS Contract to
Guidehouse were reasonable and consistent with the terms of the Solicitation. And so, the Court:
(1) DENIES XTec’s motion to supplement the administrative record; (2) GRANTS the
government’s and Guidehouse’s partial motions to dismiss; (3) DENIES XTec’s motion for
judgment upon the administrative record; (4) GRANTS the government’s and Guidehouse’s
respective cross-motions for judgment upon the administrative record; (5) DENIES XTec’s
motions for a temporary restraining order and for a preliminary injunction; and (6) DISMISSES

the complaint.

A. Supplementation Of The Administrative Record Is Not Warranted

As an initial matter, the Court must deny XTec’s request to supplement the existing
administrative record in this post-award bid protest matter with the Declaration of Samantha

East. See generally Pl. Mot. to Supp. Itis well-established that the “focal point” of judicial

14
review in bid protest matters “should be the administrative record already in existence, not some
new record made initially in the reviewing court.” Camp. v. Pitts, 411 U.S. 138, 142 (1973).
And so, the administrative record should only be supplemented in this case to correct mistake s

and fill gaps, “if the existing record is insufficient to permit meaningful review consistent with
the APA.” Axiom Res. Mgmt. Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009).

XTec argues that supplementing the administrative record with the Declaration of
Samantha East is necessary, because this declaration provides evidence that Guidehouse
misrepresented its past experience. Pl. Mot. to Supp. at 6-7. But, as the government correctly
observes in its opposition to XTec’s motion to supplement, the existing administrative record
contains ample documentation to assess the nature of Guidehouse’s past experience and the
agency’s evaluation of that information. Def. Resp. at 1; see also AR Tab 5 at 265-66; AR Tab
23 at 708, 737-38; AR Tab 123 at 3004-011, 3035-047. And so, the Court DENIES XTec’s

motion to supplement the administrative record.
B. The Court May Not Consider XTec’s Task Order Claim

The government also persuasively argues that the Court must dismiss XTec’s claim
regarding the issuance of Task Order #1 after the award of the IDMS Contract for lack of
subject-matter jurisdiction. Def. Mot. at 20-23. In this bid protest action, XTec argues, among
other things, that the State Department issued Task Order #1 in violation of the terms of the
Solicitation for the IDMS Contract. Pl. Mot. at 14-19. Itis well-established that the Court
generally does not possess subject-matter jurisdiction to consider challenges to the issuance of
task orders. Specifically, the Federal Acquisition Streamlining Act provides in pertinent part

that:

(1) A protest is not authorized in connection with the issuance or proposed
issuance of a task or delivery order except for—(A) a protest on the ground
that the order increases the scope, period, or maximum value of the contract
under which the order is issued; or (B) a protest of an order valued in excess
of $10,000,000. (2) Notwithstanding section 3556 of title 31, the
Comptroller General of the United States shall have exclusive juris diction
of a protest authorized under paragraph (1)(B).

41 U.S.C. § 4106(f)(1), (2). And so, FASA generally prohibits a plaintiff from bringing a

challenge to the issuance, or proposed issuance, of a task order in this Court. Jd.; see also SRA

15
Int’l, Inc. v. United States, 766 F.3d 1409, 1413 (Fed. Cir. 2014) (holding that FASA “effectively

eliminates all judicial review for protests made in connection with . . . a task order[.]’”’).

XTec’s claim in this case does not fall within the limited exceptions to FASA’s
jurisdictional bar. The focus of XTec’s claim related to Task Order #1 is that Guidehouse
changed the type of pricing for this task order for firm -fixed-price to time and materials. PI.
Mot. at 14-16. Because this claim does not involve an increase in the scope, period or maximum
value of the underlying IDMS Contract, the Court must dismiss XTec’s task order claim. 3 RCFC
12(b)(1).

Cc, The Remainder Of XTec’s Claims Are Unsubstantiated

Turning to the merits of XTec’s bid protest claims, a careful review of the administrative
record shows that the State Department’s evaluation process and decision to award the IDMS
Contract to Guidehouse were reasonable and consistent with the terms of the Solicitation. And
so, for the reasons that follow, the Court DENIES XTec’s motion for judgment upon the
administrative record and GRANTS the government’s and Guidehouse’s cross-motions for

judgment upon the administrative record.

As a preliminary matter, to the extent that XTec can demonstrate that any of the alleged
evaluation errors in this case actually occurred, XTec will have difficulty showing that it has
been prejudiced by sucherrors. Bannum, Inc. v. United States, 404 F.3d 1346, 1353 (Fed. Cir.
2005); see also Lyon Shipyard Co. v. United States, 113 Fed. Cl. 347, 354 (2013) (holding that a
protestor must show agency action in violation of a procurement regulation and significant
prejudice as aresult of such error). The administrative record shows that XTec received a lower

overall technical rating of “acceptable” compared to Guidehouse’s overall technical rating

3 XTec’s reliance upon this Court’s decisions in Fluor Intercontinental, Inc. and PAE- Parsons to
overcome FASA’s jurisdictional bar is also misplaced. See Fluor Intercontinental, Inc. v. United States,
147 Fed. Cl. 309, 322 (2020) (holding that FASA’s jurisdictional bar did not preclude the Court from
considering a challenge to a task order that was simultaneously awarded with the underlying IDIQ
contract); PAE-Parsons Global Logistics Services, LLC. v. United States, 145 Fed. Cl. 194, 199 (2019)
(holding that FASA’s jurisdictional bar did not preclude the Court from considering a challenge to a task
order award that was “inextricably linked” to the IDIQ contract at issue in that matter). Unlike the task
orders at issue in those cases, Task Order #1 was not simultaneously issued with the award of the IDMS
Contract. /d.; AR Tab 66 at 1825; AR Tab 99 at 2686. Notably, the State Department issued Task Order
#1 approximately four months after the award of the IDMS Contract. AR Tab 66 at 1825; AR Tab 99 at
686.

16
possible of “superior,” during the State Department’s evaluation process. AR Tab 64 at 1800
(showing that under Factors 2 and 3, Guidehouse received “superior” ratings and XTec received
“acceptable” ratings). The administrative record also shows that Guidehouse proposed a price
that is almost $3 million lower than XTec’s proposed price. AR Tab 51 at 1722. Given this, the
Court has difficulty concluding that, but for the evaluation errors alleged in this case, XTec
would have had a substantial chance of being awarded the IDMS Contract. Bannum, Inc., 404
F.3d at 1353.

Notwithstanding the aforementioned concerns, the administrative record in this case also
fails to support XTec’s claims that the State Department conducted an irrational evaluation
process.

1. Guidehouse Did Not Transfer Substantial
Risks And Costs To The State Department

First, XTec’s claim that the State Department should have rejected Guidehouse’s
proposal, because Guidehouse transferred substantial risks and costs to the agency, is not
supported by the record evidence.* XTec argues that Guidehouse’s price proposal improperly
required the State Department to provide Guidehouse with various forms of data—including
identity source documents, person unique identifiers, chain of trust, card cryptographic
algorithms, card management serialization, PKI user certificates and Cryptographic Management
Syntax signing keys. Pl. Mot. at 5-11; AR Tab 26 at 789-90. But, XTec’s claim is contrary to
the terms of the Solicitation, which makes clear that either the State Department or XTec would

provide this information to Guidehouse.

In this regard, the Solicitation states that XTec (if not the contract awardee) will share the
data that is necessary to perform the IDMS Contract, pursuant to an associate contractor
agreement to be executed after contract award. AR Tab 22 at 655 (stating that XTec “will share

information regarding IDMS with the IDMS awardee). Given this, the record evidence shows

4 The Court observes that XTec is the incumbent provider of IDMS products and services to the State
Department. AR Tab 6 at 272; Oral Arg. Tr. at 42:13-42:17. And so, it is undisputed that XTec has
access to certain data and information necessary to provide the agency’s IDMS solution. AR Tab 6 at
272; Oral Arg. Tr. at 42:17-42:20.

17
that it was reasonable and appropriate for the State Department and Guidehouse to presume that

Guidehouse would receive certain data necessary to perform the IDMS Contract from XTec.°

The Court is also not persuaded by XTec’s argument that Guidehouse failed to comply
with the Solicitation, because it did not account for the risk that XTec may decline to provide this
information. Pl. Mot. at 7-9; Pl. Resp. at 8-11. For example, XTec argues that Guidehouse
improperly passed on risks to the State Department, because XTec will not be able to provide
Guidehouse with certain information needed to manage the PIV cards for certain designated
individuals. Pl. Mot. at8. But, as discussed above, the terms of the Solicitation contemplate that
XTec would provide this information to Guidehouse pursuant to an associate contractor
agreement. AR Tab 22 at655. And so, the Court does not agree that Guidehouse’s failure to

account for this information in its proposal violates the terms of the Solicitation.

The Solicitation also makes clear that Guidehouse was not expected to include PKI
certificates in its price proposal, as XTec suggests. Notably, the Solicitation states that the State
Department “owns and operates its own independent. . . Certificate Authority (CA)” that the
agency uses to issue the PKI certificates. AR Tab 16 at 444. And so, the administrative record
makes clear that the State Department rather than Guidehouse would be responsible for the cost

of issuing PKI certificates. Id.

Lastly, XTec’s argument that Guidehouse improperly omitted from its proposal the cost
of installing new Physical Access Control Systems (“PACS”) readers, or reconfiguring the State
Department’s existing PACS readers, is also unsubstantiated. Again, the record evidence shows
that the State Department will assume the costs associated with the PACS readers, because the

agency will transition to asymmetric card readers during the life of the IDMS Contract. Jd.

Because the record evidence does not substantiate XTec’s claim that Guidehouse
improperly transferred substantial risks and costs to the State Department in its proposal, the

Court must deny XTec’s claim.

> The Solicitation includes technical standards and policies that require the State Department to provide
several forms of data to the awardee of the IDMS Contract. AR Tab 16 at 456-59. As the government
explains, this data is considered government property. Def. Mot. at 11-13.

18
2. Guidehouse Included All
Equipment Necessary For Its IDMS Solution

XTec also argues without persuasion that the State Department’s decision to award the
IDMS Contract to Guidehouse is improper, because Guidehouse omitted certain equipment from
its proposal that is necessary to perform the contract. The parties agree that Guidehouse omitted
certain equipment needed to perform the IDMS Contract from the performance work statements
for its two sample task orders. Pl. Mot. at 12; Def. Mot. at 19. But, a careful review of the
administrative record shows that Guidehouse included all of the equipment necessary to perform
the IDMS Contract elsewhere in its technical and price proposals. AR Tab 23 at 693-94; AR Tab
26 at 787; AR Tab 27. Given this, the record evidence shows that the State Department
reasonably assigned two weaknesses to Guidehouse’s proposal for failing to include all
necessary equipment in its performance work statements and that the agency also rationally
determined that “these weaknesses are significantly outweighed by the advantages associated
with the strengths” found elsewhere in Guidehouse’s proposal. AR Tab 59 at 1742.

3. The State Department Provided
Sufficient Support For Its Price Realism Analysis

XTec’s claim that the State Department’s price realism analysis is fatally flawed is
similarly not supported by the record evidence. XTec argues that the agency’s determination
that Guidehouse’s price was realistic is contradicted by the fact that Guidehouse omitted
necessary equipment fromits proposal. Pl. Mot. at 20. XTec also argues that the agency’s price
realism analysis is flawed, because it does not include any calculations to support the agency’s
conclusions. /d. at 20-21. Again, neither of XTec’s arguments find support in the administrative

record.

As discussed above, the administrative record shows that Guidehouse did not omit the
equipment necessary to perform the IDMS Contract from its proposal, as XTec suggests. AR

Tab 23 at 705; AR Tab 26 at 787; AR Tab 27. The record evidence also shows that the State

Department conducted a reasonable price realism analysis.

In this regard, XTec correctly observes that the State Department’s price realism report
does not contain any calculations. But, a careful review of the analysis shows, nonetheless, that

the State Department reasonably analyzed each offeror’s price proposal in its price realism

19
analysis. Notably, the price realism report shows that the State Department considered every
offeror’s proposed labor rates, subcontractor labor rates, indirect cost rates, material costs and
other direct costs, and the cost elements leading to its proposed firm fixed prices. AR Tab 51 at
1727-28. This report also shows that the State Department determined that Guidehouse’s price
proposal was “realistic, reflecting a clear understanding of the requirements and consistent with
the unique method of performance and materials described in [Guidehouse’ s] technical
proposal.” /d. And so, the administrative record shows that the State Department performed a
reasonable price realism analysis and the Court must also deny this claim.

4, Guidehouse’s Proposal Did Not
Contain A Material Misrepresentation

The Court is also not persuaded by XTec’s argument that Guidehouse’s proposal contains
a material misrepresentation regarding the past experience of Guidehouse and its subcontractor,
Appian. XTec makes two arguments in support of this claim. XTec argues that, among other
things, Guidehouse misrepresents its past experience in its proposal, by stating that Guidehouse
and Appian transitioned 350,000 cards and identities from XTec’s AuthenX system to other
systems. Pl. Mot. at 21; see also AR Tab 23 at 706 (stating that Team Guidehouse transitioned
350,000 cards and identities from XTec’s AuthenX system to Centech’s Security Manager
system and Radiant’s Logic system). But, again, XTec’s argument lacks support in the

administrative record.

The record evidence shows that Guidehouse’s proposal states that Appian helped to
develop the “transition plan, strategy, data model, operations model, tools and systems to
facilitate [the] transition from the XTec AuthenX IDMS/CMS [system] to a Commercial off the
Shelf software environment owned by [the United States Department of Homeland Security] and
managed by federal and contract resources.” AR Tab 5 at265. The record evidence also shows
that Guidehouse states in its proposal that “Appian led the development of [DHS’s] Enterprise
ICAM Architecture and Roadmap which informed the establishment of several Enterprise
services,” including the Trusted Identity Exchange from Radiant Logic. /d. at 265-66.

The aforementioned statements about the prior experiences of Appian are not misleading.
In fact, these statements are confirmed in the resume of Siegfried Young, an individual who is

affiliated with Appian and will serve as the technical lead for Guidehouse in performing the

20
IDMS Contract. AR Tab 23 at 737 (stating that Mr. Young “[l]ed the re-architecture of the DHS
IDMS and CMS (XTec AuthenX), and transition of person, card and crypto data to a
Government Owned Database.”). Given this, the Court does not read Guidehouse’s proposal to

be misleading regarding the prior experience of either Guidehouse or Appian. ®
5, The Agency Reasonably Evaluated Symmetric Key Access

XTec’s disparate treatment claim related to the State Department’s evaluation of
symmetric key access during the operational capability demonstration (“OCD”) phase of the
procurement is also unsubstantiated. XTec argues that the State Department treated Guideho use
and another offeror, Perspecta, disparately, because the agency did not assign a weakness to
Guidehouse’s proposal for allegedly failing to demonstrate symmetric key access capabilities,
but did assign a weakness to Perspecta’s proposal for failing to do so. Pl. Mot. at 24-25; see also
CW Gov ’t Travel, Inc. v. United States, 110 Fed. Cl. 462, 490 (2013) (holding that federal
agencies must “evaluat[e] proposals evenhandedly against common requirements.”). A careful
review of the two offerors’ respective proposals, and the State Department’s technical
evaluation, shows, however, that Guidehouse and Perspecta did not submit “substantively
indistinguishable” proposals with regards to symmetric key access. See Office Design Grp. v.
United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020) (holding that “[a]n agency is under no

obligation to assign dissimilar proposals the same evaluation rating.”).

Notably, the agency’s evaluation of Perspecta’s proposal observes that “neither in the
OCD nor in the technical proposal does [Perspecta] present its approach for [supporting the
development of a symmetric key solution] or the specifics of its relationship with [the provider
of the proposed key card solution].” See AR Tab 61 at 1761. By comparison, the record
evidence shows that Guidehouse explained its approach to putting symmetric keys on its key

cards and that Guidehouse also demonstrates the method for injecting keys onto its key cards,

© To the extent that Guidehouse’s statements about the prior experience of Appian could be viewed as
misleading with respect to the use of PIV cards, the record evidence also makes clear that any
misrepresentation in this regard was not material to the State Department’s award decision. The
administrative record shows that the State Department understood that Appian did not have prior
experience creating PIV cards, or re-using PIV cards. AR Tab 123 at 3007-08 (noting that Appian
previously transitioned the identity and credential data contained within XTec’s AuthenX system to a
commercial-off-the-shelf solution).

21
during the OCD. See AR Tab 97, M2U00043 at 1:24-1:32, see AR Tab 97, M2U00044 at 0:00-
10:45; see also AR Tab 23 at 699 (explaining that Guidehouse would use Global Platform, a
COTS product that would require a “small enhancement for key rotation according to DoS-
specific needs.”). And so the record evidence shows that Guidehouse provided its plan for
providing symmetric key capabilities and its proposed method for doing so, while Perspecta did

not.’

Because XTec has not shown that the proposals submitted by Guidehouse and Perspecta
were “substantially indistinguishable” with regards to symmetric key access, the Court must
deny XTec’s disparate treatment claim. Office Design Grp., 951 F.3d at 1372.

6. The Agency Reasonably Awarded
A Strength To Guidehouse For Wide Deployment

The record evidence similarly does not substantiate XTec’s argument that the State
Department irrationally assigned a strength to Guidehouse for proposing a “sound, feasible,
compliant IDMS solution that has been successfully deployed to more than 90 federal, US[]
intelligence, industry and international governments.” Pl. Mot. at 26 (quoting AR Tab 59 at
1734). While XTec correctly observes that Guidehouse has not previously deployed the exact
IDMS solution that it proposed for the procurement at issue, the record evidence makes clear that
the State Department awarded the strength at issue for Guidehouse’s reliance on the Intercede
MyID product, not the prior implementation of the exact solution proposed in Guidehouse’s
proposal. See AR Tab 59 at 1737 (“While [Guidehouse] identifies where many of [the proposed
technologies] have been deployed in the past, [Guidehouse] does not indicate that it has

implemented this exact solution successfully elsewhere.”). In this regard, the record evidence

? XTec also argues without persuasion that the State Department waived the requirement to demonstrate
symmetric key capabilities, because the Solicitation requires that offerors demonstrate symmetric key
access capabilities during the OCD and that Guidehouse failed to do so. Pl. Mot. at 24. The agency has
discretion in determining how offerors demonstrate such capabilities and the record evidence does not
show that the State Department abused that discretion in this case. See AR Tab 22 at 662 (explaining the
scope of the OCD); AR Tab 59 at 1737 (Overall, the TEP determined that [Guidehouse’s] Technical
Approach and Demonstrated Functionality/Capability meet all solicitation requirements . . . .).

22
shows that Guidehouse highlights its reliance on the MyID product in its technical proposal.’
AR Tab 23 at 691-92. And so, the record evidence shows that the State Department reasonably
assigned a strength for Guidehouse’s reliance on the MyID product, “because it reduces the risk

of unsuccessful deployment.” AR Tab 59 at 1734.

7. The Agency Reasonably Evaluated
Operation In Degraded Network Conditions

The Court must also reject XTec’s disparate treatment claim involving the State
Department’s evaluation of operation in degraded network conditions. XTec argues that the
State Department treated Guidehouse and XTec disparately with regards to the evaluation of
operation in degraded network conditions, because the agency assigned a weakness to XTec’s
proposal for failing to propose a solution that operates in degraded network conditions, but the
agency did not similarly assign a weakness to Guidehouse’s proposal for also failing to do so.?
Pl. Mot. at 27-28. But again, XTec has not shown that the two offerors’ proposals are
“substantially indistinguishable” with regards to operationsin degraded network conditions.

Office Design Grp., 951 F.3d at 1372.

The record evidence shows that Guidehouse’s proposal addressed operation in degraded
network conditions by explaining “[n]etwork limitations, such as degraded environments and
varying power, can be accommodated through appropriate timeout configuration settings in
MyID.” AR Tab 23 at 696. By comparison, the record evidence shows that XTec’s technical
proposal does not address the capabilities of its proposed solution to operate in degraded network
conditions. See AR Tab 28 at 818-61. And so, XTec’s disparate treatment claim is

unsubstantiated.

8 The administrative record also makes clear that the State Department assigned a risk to Guidehouse’s
proposal because Guidehouse “does not indicate that it has implemented this exact solution successfully
elsewhere.” AR Tab 59 at 1737 (citing AR Tab 23 at 705).

° The Solicitation addresses degraded network conditions in technical objective B.1 and requires that
contractors “[p]rovide a secure, scalable role-based solution that operates in both normal and degraded
network conditions with varying power characteristics... , quality, and data traffic capacity
environments. AR Tab 16 at 447-48. The Solicitation also specifies the capabilities that each offeror
must demonstrate during the OCD and make clear that that operation in degraded network conditions is
not one of the enumerated capabilities to be demonstrated during the OCD. See AR Tab 22 at 662.

23
XTec’s argument that the State Department improperly assigned a weakness to its
proposal for failing to address operation in degraded network conditions is equally unavailing.
XTec argues that the weakness at issue is unwarranted, because XTec demonstrated this
capability during the OCD phase of the procurement. Pl. Mot. at 28 (citing AR Tab 94, File
M2U00028.MPG at 13:23-16:52 minutes). But, as the government persuasively argues, XTec’s
argument lacks merit, because the Solicitation does not permit XTec to demonstrate operation in
degraded network conditions during the OCD. Def. Mot. at 35-36; AR Tab 22 at 662. And so,
the record evidence shows that the State Department reasonably assigned the weakness at issue
to XTec’s proposal.

8. The Agency Did Not Treat XTec And Guidehouse
Disparately Regarding Reliance On Proprietary Products

The record evidence also shows that the State Department did not treat XTec and
Guidehouse disparately during the agency’s evaluation of the offerors’ reliance on proprietary
products. XTec contends that the State Department irrationally assigned a weakness to its
proposal for relying on proprietary products for its proposed solution, while declining to also
assign a weakness to Guidehouse’s proposal for also doing so. Pl. Mot. at29-30. XTec’s claim

is unsubstantiated by the record evidence.

The record evidence shows that XTec’s technical proposal provides that five of the 14
components for XTec’s solution are proprietary sole source components. AR Tab 28 at 820. By
comparison, the record evidence shows that Guidehouse’s proposal states that “[n]one of the
components of Team Guidehouse’s solution are sole source.” AR Tab 23 at 705. And so, the
State Department understandably assigned a strength to Guidehouse’s proposal, because

Guidehouse’s proposal “requires no sole source products.” See AR Tab 59 at 1734.

Because the record evidence makes clear that there were significant distinctions between
the proposals submitted by Guidehouse and XTec with regards to proprietary products, the State
Department reasonably rated the two offerors’ proposals with regards to reliance on proprietary

products.

24
9. The Agency Reasonably Downgraded XTec’s
Proposal For Not Providing Operational Instructions And Tools

XTec’s final claim—that the State Department improperly assigned a weakness to its
proposal, and a strength to Guidehouse’s proposal, based upon an alleged unstated requirement
to provide “operational instructions and tools” —is also unavailing. Pl. Mot. at 31 (citing AR
Tab 60 at 1747). XTec argues that the agency irrationally assigned a weakness to its proposal for
failing to provide operational instructions and tools that would allow the State Department to
assess the performance of the IDMS system, because the Solicitation does not require that
offerors provide this information. /d. But, the record evidence shows that sections E.2 and E.3
of the Solicitation’s quality assurance surveillance plan and methods of surveillance provides
that “[t]he Government will perform those quality assurance procedures that may be necessary to
verify that performance is in accordance with the terms of the contract and its task orders” and
that “[t]he Government may usea variety of surveillance methods to evaluate the Contractor’s
performance.” AR Tab 22 at 593. Given this, the Court agrees with the government that XTec
was on notice that the government would assess operational instructions and tools to allow the
agency to evaluate the performance of the IDMS system during the evaluation process. See
Banknote Corp. of Am., Inc. v. United States ,56 Fed. Cl. 377, 387 (2003), aff'd, 365 F.3d 1345
(Fed. Cir. 2004) (quoting Analytical & Research Tech., Inc. v. United States , 39 Fed. Cl. 34, 45
(1997)) [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.”). And so,

XTec’s unstated evaluation claim is unsubstantiated.

The record evidence also shows that the State Department reasonably awarded a strength
to Guidehouse’s proposal for providing “operational instructions and tools” so that the agency
could conduct such independent oversight. The State Department assigned this strength because,
Guidehouse “provides robust solutions and tools for proactive performance monitoring and
auditing.” AR Tab 59 at 1736 (citing AR Tab 23 at 692, 700). Given this, XTec has not shown
that the State Department employed an unstated evaluation criteria, or that the agency treated

offerors disparately, during the evaluation of operational instructions and tools.

25
D. XTec Is Not Entitled To Injunctive Relief

Asa final matter, XTec is not entitled to the injunctive relief that it seeks in this case.
XTec seeks to enjoin the State Department from continuing with the performance of the IDMS
Contract. See generally Pl. Mot. for TRO; Pl. Mot. for PI But, a plaintiff who cannot
demonstrate success upon the merits cannot prevail upon a motion for such emergency injunctive
relief. Nat’l Steel Car, Ltd. v. Canadian Pacific Ry., Ltd. , 357 F.3d 1319, 1325 (Fed. Cir. 2004)
(“[A] movant is not entitled to a preliminary injunction if he fails to demonstrate a likelihood of
success on the merits.”). Because XTec has not succeeded upon the merits of any of its bid
protest claims, the Court DENIES XTec’s motions for a temporary restraining order and fora

preliminary injunction.
V. CONCLUSION

In sum, XTec has not shown that supplementing the existing administrative record is
warranted in this case. A careful review of the administrative record also shows that the Court
does not possess subject-matter jurisdiction to consider XTec’s claim challenging the issuance of
Task Order #1. In addition, the administrative record shows that the State Department’s
evaluation process and decision to award the IDMS Contract to Guidehouse were reasonable and

consistent with the terms of the Solicitation.
And so, for the foregoing reasons, the Court:
1. DENIES XTec’s motion to supplement the administrative record;
2. GRANTS the government’s and Guidehouse’s partial motions to dismiss;
3. DENIES XTec’s motion for judgment upon the administrative record;

4. GRANTS the government’s and Guidehouse’s respective cross-motions for judgment
upon the administrative record;

5. DENIES XTec’s motions for a temporary restraining order and for a preliminary
injunction; and

6. DISMISSES the complaint.
The Clerk shall enter judgment accordingly.

Each party to bear its own costs.

26
Some of the information contained in this Memorandum Opinion and Order may be
considered protected information subject to the Protective Order entered in this matter on August
31,2020. This Memorandum Opinion and Order shall therefore be filed UNDER SEAL. The
parties shall review the Memorandum Opinion and Order to determine whether, in their view,
any information should be redacted in accordance with the terms of the Protective Order prior to
publication. The parties shall FILE a joint status report identifying the information, if any, that
they contend should be redacted, together with an explanation of the basis for each proposed

redaction on or before April 1, 2021.

IT ISSO ORDERED.

s/ Lydia Kay Grigesby
LYDIA KAY GRIGGSBY
Judge

27