Rev, LLC v. United States

In the United States Court of Federal Claims
No. 21-1011C

(E-Filed: March 21, 2022) 1

)
REV, LLC, )
)
Plaintiff, )
)
v. )
)
THE UNITED STATES, )
)
Defendant, ) Post-Award Bid Protest; Motion for
) Judgment on the Administrative Record;
and ) RCFC 52.1; Standing; Prejudice.
)
APTIVE RESOURCES, LLC, )
)
and )
)
DECISIVE POINT CONSULTING )
GROUP, LLC, )
)
Intervenor-defendants. )
)

Jon D. Levin, Huntsville, AL, for plaintiff. W. Brad English, Emily J. Chancey, J. Dale
Gipson, of counsel.

Eric. J. Singley, Trial Attorney, with whom were Brian M. Boynton, Acting Assistant
Attorney General, Martin Hockey, Acting Director, and Reginald T. Blades, Jr., Assistant
Director, Commercial Litigation Branch, Civil Division, United States Department of
Justice, Washington, DC, for defendant. Frank V. DiNicola, Desiree A. DiCorcia, Tara

1
This opinion was issued under seal on March 1, 2022. See ECF No. 104. Pursuant to ¶ 4
of the ordering language, the parties were invited to identify source selection, proprietary or
confidential material subject to deletion on the basis that the material was protected/privileged.
The parties’ proposed redactions were acceptable to the court. See ECF No. 106. All redactions
are indicated by brackets ([ ]).
T. Nash, and Christopher Murphy, United States Department of Veterans Affairs,
Eatontown, NJ, of counsel.

John R. Prairie, Washington, DC, for intervenor-defendant Aptive Resources, LLC. Cara
L. Lasley and Jennifer Eve Retener, of counsel.

Jonathan D. Shaffer, Tysons Corner, VA, for intervenor-defendant Decisive Point
Consulting Group, LLC.

OPINION

CAMPBELL-SMITH, Judge.

Plaintiff filed this bid protest challenging the Department of Veterans Affairs’
(VA) decision to exclude plaintiff from the competitive range in a procurement for
information technology (IT) services. See ECF No. 47 (amended complaint). Plaintiff
filed a motion for judgment on the administrative record (AR) in this case, ECF No. 78;
and defendant and intervenor-defendants each filed cross-motions for judgment on the
AR, ECF No. 80; ECF No. 83; ECF No. 85. After the initial briefing was complete, the
court ordered the parties to submit supplemental briefs on the issue of standing. See ECF
No. 97. The parties did so. See ECF No. 98; ECF No. 99; ECF No. 100; ECF No. 102.

In ruling on the motions, the court has considered: (1) the AR, ECF No. 45; 2 (2)
plaintiff’s amended complaint, ECF No. 47; (3) plaintiff’s motion for judgment on the
AR, ECF No. 78; (4) intervenor-defendant Decisive Point Consulting Group, LLC’s
cross-motion for judgment on the AR and response to plaintiff’s motion, ECF No. 80; (5)
intervenor-defendant Aptive Resources, LLC’s cross-motion for judgment on the AR and
response to plaintiff’s motion, ECF No. 83; (6) defendant’s cross-motion for judgment on
the AR and response to plaintiff’s motion, ECF No. 85; (7) plaintiff’s reply in support of
its motion and response to the cross-motions, ECF No. 89; (8) intervenor-defendant
Decisive Point’s reply in support of its cross-motion, ECF No. 91; (9) intervenor-
defendant Aptive’s reply in support of its cross-motion, ECF No. 93; (10) defendant’s
reply in support of its cross-motion, ECF No. 95; (11) intervenor-defendant Decisive
Point’s supplemental brief, ECF No. 98; (12) intervenor-defendant Aptive’s supplemental
brief, ECF No. 99; (13) defendant’s supplemental brief, ECF No. 100; and (14) plaintiff’s
response to defendant’s and intervenor-defendants’ supplemental briefs, ECF No. 102.

2
When defendant initially filed the administrative record (AR) on March 15, 2021, see
ECF No. 41, it “inadvertently omitted information,” and therefore moved to complete the AR on
March 17, 2021, ECF No. 43 at 1 (defendant’s motion to complete the AR). The court granted
the motion and directed defendant to file the completed AR. See ECF No. 44 (order). Defendant
filed the completed AR on March 19, 2021, superseding its original AR. See ECF No. 45.

2
 The motions are now fully briefed, and ripe for decision. The parties did not
request oral argument, and the court deems such argument unnecessary. The court has
considered all of the parties’ arguments and addresses the issues that are pertinent to the
court’s ruling in this opinion. For the following reasons, plaintiff’s motion for judgment
on the AR is DENIED, and defendant’s and intervenor-defendants’ cross-motions for
judgment on the AR are GRANTED.

I. Background 3

A. The Solicitation

On November 12, 2019, the VA issued solicitation number 36C10B19R0046, for
IT services as part of the Transformation Twenty-One Total Technology Next Generation
(T4NG) contract on-ramp program (the solicitation). 4 See ECF No. 45-2 at 300-436
(solicitation). The procurement provides for a five-year contract base period and one
five-year option period, with a maximum value of $22.3 billion. See id. at 315. The
solicitation explained the scope of the procurement as follows:

The Contractor shall provide total IT services solutions including the
following functional areas: program management, strategy, enterprise
architecture and planning; systems/software engineering; software
technology demonstration and transition; test and evaluation; independent
verification and validation; enterprise network; enterprise management
framework; operations and maintenance; cybersecurity; training; IT
facilities; and other solutions encompassing the entire range of IT and Health
IT requirements, to include software and hardware incidental to the solution.
Accordingly, Task Orders may include acquisitions of software and IT
products . . . . These services, as well as related IT products, may encompass
the entire life-cycle of a system. Moreover, services and related products
covered under this contract shall be global in reach and the Contractors must
be prepared to provide services and deliverables worldwide.

Id. at 311.

The solicitation was intended to “replenish the pool of [service-disabled veteran-
owned small businesses (SDVOSBs)],” “anticipating that a large number of the current

3
This case involves considerable detail. For purposes of deciding these motions the court
will relate only those details that are necessary to the instant analysis.
4
The copy of the solicitation included in the AR is not dated, but the index filed by
defendant, see ECF No. 45-1 at 3, and presentation slides from the Source Selection Advisory
Council’s May 27, 2020 initial evaluation briefing, see ECF No. 45-5 at 64, indicate that the
solicitation was issued on November 12, 2019.
3
SDVOSB contract-holders would no longer qualify as a SDVOSB at the end of the initial
five-year [contract] period.” ECF No. 85 at 19 (citing ECF No. 45-2 at 262). The
solicitation also explained that “[t]his competition is being conducted pursuant to the on-
ramp clause of the T4NG basic contract. The Government intends to award seven (7)
contracts to verified [SDVOSBs].” ECF No. 45-2 at 431. The VA, however, reserved
the right to adjust that number in its discretion. See id. Awards were to be made on a
best-value basis, considering five evaluation factors, including “Technical, Past
Performance, Veterans Employment, Small Business Participation Commitment Factor
(SBPC), and Price.” Id. Those factors were valued as follows:

The Technical Factor is significantly more important than the Past
Performance Factor, which is slightly more important than the Veterans
Employment Factor which is slightly more important than the SBPC Factor,
which is slightly more important that the Price Factor. The Technical Factor
has two (2) Sub-factors: Sample Task Sub-Factor and Management Sub-
factor. Within the Sample Task Sub-factor, Sample Task 1 and Sample Task
2 are equally important. The Sample Task Sub-factor is significantly more
important than the Management Sub-factor. All non-price factors, when
combined, are significantly more important than the Price Factor. To receive
consideration for award, a rating of no less than “Acceptable” must be
achieved for the Technical Factor, all Technical Sub-factors, and the SBPC
Factor. Offerors are cautioned that the awards may not necessarily be made
to the lowest Price offered or the most highly rated technical proposals.

Id.

To promote an efficient evaluation process, the solicitation contemplated that “the
evaluation [would] be conducted in phases, Step One and Step Two.” Id. For Step One,
the offerors were directed to submit a technical proposal and price proposal responding to
Sample Task 1. See id. at 422-23. Following an evaluation of the Sample Task 1
response, the VA was to establish a competitive range, and select the offerors eligible to
proceed to Step Two. See id. at 431. Offerors that did not advance to Step Two would
be excluded from the competition, and those that proceeded were to submit a response to
“Sample Task 2, the Management Sub-Factor, Past Performance Factor, Veterans
Employment Factor, SBPC Factor, and Solicitation, Offer & Award Documents,
Certifications & Representations and Terms and Conditions.” See id. at 432. Following
evaluation of Step Two proposals, the VA “may establish a competitive range and
conduct discussions with all Offerors within the competitive range, or proceed directly to
award without discussions.” Id.

The sample tasks were intended to test the “Offeror’s expertise and innovative
capabilities to respond to the types of situations that may be encountered in performance
of a contract resulting from this solicitation.” Id. at 433. For this reason, “the Offerors

4
[were not] given an opportunity to correct or revise a Sample Task response.” Id.
Responses to the sample tasks were evaluated in accord with the following:

(1) Understanding of Problems—The proposal will be evaluated to
determine the extent to which the Offeror demonstrates a clear understanding
of all features involved in solving the problems and meeting the requirements
presented by the Sample Task; and the extent to which uncertainties are
identified and resolutions proposed.

(2) Feasibility of Approach—The proposal will be evaluated to determine
whether the Offeror’s methods and approach to meeting the Sample Task
requirements provides the Government with a high level of confidence of
successful completion.

Id. And, considering the foregoing criteria, each sample task response was assigned one
of the following overall adjectival ratings:

a. Outstanding—A proposal that meets or exceeds all of the
Government’s requirements, contains extensive detail, demonstrates a
thorough understanding of the problems, and is highly feasible (low risk).

b. Good—A proposal that meets or exceeds all of the Government’s
requirements, contains at least adequate detail, demonstrates at least an
understanding of the problems, and is at least feasible (low to moderate
degree of risk).

c. Acceptable—A proposal that at least meets all of the Government’s
requirements, contains at least minimal detail, demonstrates at least a
minimal understanding of the problems, and is at least minimally feasible
(moderate to high degree of risk).

....

e. Unacceptable—A proposal that contains a major error(s),
omission(s), or deficiency(ies) that indicates a lack of understanding of the
problems or an approach that cannot be expected to meet requirements or
involves a very high risk; and none of these conditions can be corrected
without a major rewrite or revision of the proposal. A proposal that fails to
meet any of the Government’s requirements after the final evaluation shall
be ineligible for award regardless of whether it can be corrected without a
major rewrite or revision of the proposal.

ECF No. 45-4 at 418 (subsection d is omitted because it is inapplicable to evaluations of
the sample tasks).

5
 B. Sample Task 1

In Sample Task 1, the VA sought responses to the following hypothetical scenario:

The U.S. Department of Veterans Affairs (VA) signed a multi-year contract
to modernize its electronic health record (EHR) system and to replace its
legacy Veterans Information Systems and Technology Architecture (VISTA)
system. VA’s infrastructure/Information Technology (IT) components will
need to be analyzed, reported, prioritized, remediated, and tracked to prepare
VA for the new EHR system. Using the T4NG Performance Work
Statement, describe in detail your approach to analyze, remediate, and report
VA infrastructure/IT deficiencies across the organization to prepare VA
facilities for the new EHR system.

ECF No. 45-2 at 502. The language of Sample Task 1 incorporated by reference the
requirements included in the performance work statement (PWS), which is part of the
solicitation. See id. at 307-70. The VA gave offerors seven business days to submit their
responses, which were limited to a maximum of twenty-five pages. See id. at 269.

To assist in evaluating the Sample Task 1 responses, the VA “developed a model
solution for Sample Task 1 to identify the areas that the agency deemed necessary for its
successful completion.” ECF No. 85 at 21 (citing ECF No. 45-12 at 1093). In
developing this evaluation tool, the VA “identified all of the high level focus areas . . .
that an offeror would need to address to successfully execute the effort, as well as the
lower-level focus areas . . . that were intrinsic to each high level focus area.” Id.

The Sample Task 1 responses were assigned strengths, weaknesses, or deficiencies
in each of the five high level focus areas, according to the following criteria:

Strength. Any aspect of a proposal that, when judged against a stated
evaluation criterion, enhances the merit of the proposal or increases the
probability of successful performance of the contract. A significant strength
appreciably enhances the merit of a proposal or appreciably increases the
probability of successful contract performance.

Weakness. A flaw in a proposal that increases the risk of unsuccessful
contract performance. A significant weakness in a proposal is a flaw that
appreciably increases the risk of unsuccessful contract performance.

Deficiency. A material failure of a proposal to meet a Government
requirement, or a combination of significant weaknesses in a proposal that
increases the risk of unsuccessful contract performance to an unacceptable
level.

6
ECF No. 45-4 at 419. Strengths and weaknesses were to be assigned only for the high
level focus areas. See ECF No. 45-12 at 1093.

The VA subsequently issued an amendment to the solicitation to “1) Revise
portions of the Proposal Format requirements as provided within Section L.10 of the
Solicitation; and, 2) Allow for resubmittal of only the Sample Task 1 as necessary to
ensure the instructions are met as described below.” ECF No. 45-2 at 510-11. The VA
stressed that:

The Technical Evaluation Approach, as stated within Section M.C.1.a of the
Solicitation, remains unchanged; Offerors are only being provided this
limited opportunity to resubmit Sample Task 1 to ensure compliance with
Section L.10.2.a, Format, as amended herein. Future opportunities to correct
or revise a Sample Task response will not be provided.

Id. at 511. It further noted that, “Offerors are reminded and cautioned that all Solicitation
requirements, as amended herein, to include proposal formatting, must be strictly adhered
to.” Id. In response to the amendment, all offerors resubmitted their proposals. See ECF
No. 45-4 at 56-352 (offerors’ revised Sample Task 1 proposals).

C. Organizational Conflict of Interest Determination

Because Sample Task 1 involved the electronic health record modernization
(EHRM) system and, in 2018, the VA signed a multi-year contract with Cerner
Corporation to replace that system, the contracting officer reviewed the task to
“determine if Cerner Corporation or any of its subcontractors performing under the
EHRM contract would have an Organizational Conflict of Interest (OCI) with the T4NG
On-Ramp solicitation as a result of information that may cause an unfair competitive
advantage.” ECF No. 45-20 at 2. The contracting officer considered Federal Acquisition
Regulation (FAR) 9.505(b), which defines OCIs, and consulted the Source Selection
Evaluation Board (SSEB) Chairperson “who led the effort in developing Sample Task 1
and its corresponding solution.” Id. at 1-2. The contracting officer “confirmed that in
order to provide a response to the Sample Task 1 question, Offerors do not need any non-
public knowledge of [EHRM] end state requirements, nor would access to any non-public
information pertaining to EHR provide an Offeror with a competitive advantage.” Id.
Instead, Sample Task 1 required a detailed overview of the offeror’s approach to
“analyze, remediate, and report VA infrastructure/IT deficiencies,” which “would be
essentially the same for any other major IT system similar in size and scope; therefore,
[it] is not specific to the EHR system.” Id. at 2.

The contracting officer concluded that, because “the solution to Sample Task 1
does not require the Offerors to have any non-public knowledge of Cerner or []EHRM
end state requirements, any proprietary information Cerner or any of its subcontractors
have as a result of the EHRM contract, would not present an unfair competitive
7
advantage.” Id. (footnote omitted). This conclusion “extends to other contractors that
may have indirectly supported EHRM efforts through contracts and orders beyond the
Cerner EHRM contract.” Id. at n.1. Thus, the contracting officer determined that no OCI
existed “that would preclude Cerner or any of its subcontractors from participating in the
solution.” Id.

D. First Competitive Range Determination

Of the ninety-four proposals evaluated by the VA, “61 proposals were rated
‘Unacceptable;’ 21 proposals were rated ‘Acceptable;’ eight (8) proposals were rated
‘Good;’ and four (4) proposals were rated ‘Outstanding.’ The evaluated prices of the 94
offerors ranged from a low of $6.13 Billion to a high of $16.33 Billion.” ECF No. 45-5
at 239 (June 4, 2020 Source Selection Authority (SSA) memorandum for record making
competitive range determination); see also id. at 196 (May 27, 2020 SSA Step One
Evaluation Summary). In determining the competitive range, the SSA excluded all
offerors with “unacceptable” Sample Task 1 ratings. See id. at 239. The SSA
determined that excluding the sixty-one unacceptable proposals was appropriate because
“Sample Task 1 was significantly more important than Price.” Id. at 240. The SSA also
noted that “there was ample competition among Offerors with ‘Acceptable’ or better
technical proposals with low evaluated prices.” Id. The contracting officer concurred
with the SSA’s conclusion and thirty-three offerors were included in the competitive
range for evaluation in Step Two. See id.

E. Step Two Evaluation and Competitive Range Determination

The VA released Sample Task 2 to the offerors in the competitive range on June
30, 2020; proposals were due on July 10, 2020. See id. at 255 (email releasing Sample
Task 2); ECF No. 45-12 at 1084 (October 20, 2020 SSA Interim Evaluation Briefing).
Offerors were required to provide, in addition to their response to Sample Task 2, the
management proposal—including all contractor teaming agreements (CTAs)—and past
performance, Veterans employment, and small business participation proposal volumes.
See ECF No. 45-2 at 425-26. The SSEB then evaluated the proposals and presented the
results of its evaluation to the Source Selection Advisory Council (SSAC) and the SSA in
a “detailed slide presentation and thorough discussion of the evaluation assessments
pertaining to each Step Two proposal.” ECF No. 45-12 at 1286. In summary, the
proposals were rated as follows:

24 proposals were rated “Acceptable,” eight (8) proposals were rated
“Good,” and one (1) proposal was rated “Outstanding” in the Technical
Factor. All 33 proposals were rated “Low Risk” in the Past Performance
Factor. In the Veterans Employment Factor, the 33 proposals ranged from
eight (8) to 18,182 employees and one (1) to 4,574 Veteran employees, and
the percentage of Veterans employed ranged from 4.41 percent to 71.08

8
 percent. For the SBPC Factor, four (4) proposals were rated “Susceptible to
Being Made Acceptable,” two (2) proposals were rated “Acceptable,” ten
(10) were rated “Good,” and 17 were rated “Outstanding.” The evaluated
prices ranged from a low of $6.62 billion to a high of $10.48 billion.

ECF No. 45-12 at 1286-87 (October 23, 2020 SSA Memorandum for Record re: Step
Two Competitive Range Determination); see also id. at 1282-83 (SSEB Step Two
Evaluation Summary).

The SSA considered “all factors and sub-factors and their relative importance,”
and determined that offerors rating “Acceptable” in the technical factor should be
excluded from the competitive range because “they were not among the most highly rated
proposals with a realistic prospect for award.” Id. at 1288. The SSA determined that
“reviewing the detailed findings” of the offerors’ evaluations revealed that those rated
“Acceptable” “presented a higher degree of risk in the Sample Task responses than those
Offerors rated ‘Good’ or better in the Technical Factor.” Id. The SSA also considered
the offerors’ past performance—the second most important factor as defined by the
solicitation—and determined that, although they were each “assessed a varying number
of weaknesses, each was considered Low Risk and therefore essentially equal in that
Factor.” Id.

The SSA also “considered the fact” that some of the offerors rated “Acceptable” in
the technical factor “were stronger in the remaining factors . . . and/or proposed lower
evaluated prices” than higher rated offerors. Id. The SSA determined that, given the
relative importance of the technical factor and past performance factor, “none of these
differences were significant enough to outweigh the ‘Good’ or better ratings received for
the Technical Factor.” Id. The contracting officer concurred with the SSA’s
determination that the nine offerors that received “Good” or better ratings in the technical
factor would compose the competitive range for discussions. Id. at 1289.

After discussions and final proposal revisions, the SSEB presented the SSA with
the final results of evaluation on November 18, 2020. See ECF No. 45-19 at 729
(Memorandum re: Fair and Reasonable Price Determination). The SSA determined to
award contracts to all nine offerors in the competitive range for award, see id., the
contracting officer determined that all nine offerors proposed fair and reasonable prices,
see id. at 730, and the VA issued its Source Selection Decision awarding contracts to
each of the nine offerors in the competitive range, see id. at 768-72.

F. Plaintiff’s Evaluation

Plaintiff was given a “Good” rating for Sample Task 1, “Acceptable” for Sample
Task 2, and “Good” for the Management subfactor. ECF No. 45-12 at 836 (the VA’s
Technical Factor Initial Evaluation Report for plaintiff’s proposal). Plaintiff’s Sample
Task 1 rating was based on an assessment of two significant strengths, one strength, and
9
two weaknesses. See id. at 837-41. The weaknesses resulted from the agency’s
assessment that plaintiff provided “minimal detail on analyzing and remediating” various
infrastructure deficiencies of a VA facility, id. at 839, and wireless capability and security
requirements, see id. at 840. The agency concluded that plaintiff’s approach “increases
the risk that a VA facility may not have the infrastructure capacity required for the end-
state IT equipment, causing intolerable latency delays or possible shutdowns of IT
equipment, disrupting delivery of patient care.” Id. And that plaintiff’s “minimal
understanding of security requirements adds risk that the Offeror will not be able to
provide a secure operational environment, safe from wireless security vulnerabilities,”
leading to users “experienc[ing] sub-optimal performance.” Id. at 841.

Plaintiff’s acceptable rating for Sample Task 2 was based on three strengths, four
weaknesses, and one significant weakness. See id. at 842-46. The significant weakness
was the result of plaintiff’s proposal “demonstrat[ing] a lack of understanding on how to
depict its overall software architecture” because it failed to depict certain services that
were included in its proposal narrative and did not “clearly depict” all of the
environments plaintiff used in its proposal. Id. at 846. The evaluation explained that this
“appreciably increase[d] the risk that the Offeror will not be able to create applications
utilizing cloud platforms, environments, and cloud services.” Id. Plaintiff’s weaknesses
arose out of its “minimally feasible approach” to using and configuring “an automated
integration and deployment pipeline,” id. at 844, to describing and processing a change
request, see id. at 845, and to describing its software engineer “readme file” and code
structure, id., and plaintiff’s “minimal understanding of how to create a product one
pager,” id. at 846. Each of these weaknesses added risk to the agency. See id. at 842-46.

“Based on the relative importance of the sample tasks, wherein each sample task
was of equal importance, and considering the qualitative evaluation results of the
individual sample tasks,” plaintiff received an overall “Sample Task Subfactor rating of
ACCEPTABLE.” Id. at 836 (emphasis in original). Plaintiff received a management
subfactor rating of “Good,” based on two assessed strengths. Id. at 849-50 (the VA’s
Technical Factor Management Subfactor Initial Evaluation Report for plaintiff)
(emphasis in original). “Based on the evaluation results of the Technical subfactors and
with due consideration given to the weights for those subfactors,” plaintiff received an
overall rating for the technical factor of “ACCEPTABLE.” Id. at 830 (emphasis in
original).

Plaintiff was rated “Low Risk” on the past performance factor, id. at 851-54, had a
veterans employment percentage of [ ], see id. at 855, and received a rating of “GOOD”
for its small business participation factor, id. at 856-57 (emphasis in original). Plaintiff
also proposed the third lowest price “compared to the nine awardees,” ECF No. 78 at 18,
but the SSA and contracting officer determined that the evaluated price was not low
enough to consider plaintiff “amongst the most highly rated proposals.” ECF No. 45-12
at 1289. And, the SSA determined that “it was clear in reviewing the detailed findings

10
[about plaintiff’s proposal], they presented a higher degree of risk in the Sample Task
responses than those Offerors rated ‘Good’ or better in the Technical Factor.” Id. at
1288.

G. Procedural History

The VA informed plaintiff that it was not included in the competitive range and
had, therefore, been eliminated from the competition on October 23, 2020. See ECF No.
45-13 at 5-6. Plaintiff requested a debriefing on its evaluation, which the VA provided
on November 3, 2020. See id. at 67-123. Plaintiff filed a protest of its exclusion from
the competitive range with the Government Accountability Office (GAO) on November
16, 2020. See ECF No. 45-14 at 1244-72. The GAO denied the protest on February 18,
2021, see ECF No. 45-15 at 1311-18. Plaintiff filed its initial complaint in this court on
March 1, 2021, see ECF No. 1, and amended its complaint on March 22, 2021, see ECF
No. 47.

II. Legal Standards

In its amended complaint, plaintiff invokes this court’s bid protest jurisdiction.
See ECF No. 47 at 2. This court’s bid protest jurisdiction is based on the Tucker Act,
which gives the court authority:

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. . . . without regard to whether suit is instituted before or after
the contract is awarded.

28 U.S.C. § 1491(b)(1). The Tucker Act also states that the court may grant “any relief
the court considers proper . . . including injunctive relief.” 28 U.S.C. § 1491(b)(2).

To establish jurisdiction, a plaintiff must therefore demonstrate that it is an
“interested party.” 28 U.S.C. § 1491(b)(1). The Federal Circuit has held that the
“interested party” requirement “imposes more stringent standing requirements than
Article III.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009).
Though the term “interested party” is not defined by the statute, courts have construed it
to require that a protestor “establish that it ‘(1) is an actual or prospective bidder and (2)
possess[es] the requisite direct economic interest.” See id. (quoting Rex Serv. Corp. v.
United States, 448 F.3d 1305, 1308 (Fed. Cir. 2006)) (alteration in original).

Once jurisdiction is established, the court’s analysis of a “bid protest proceeds in
two steps.” Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005). First,
the court determines, pursuant to the Administrative Procedure Act standard of review,

11
5 U.S.C. § 706, whether the “agency’s action was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with [the] law.” Glenn Def. Marine (ASIA),
PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir. 2013) (citing 28 U.S.C.
§ 1491(b)(4) (adopting the standard of 5 U.S.C. § 706)). If the court finds that the agency
acted in error, the court then must determine whether the error was prejudicial. See
Bannum, 404 F.3d at 1351.

To establish prejudice, “a protester must show ‘that there was a substantial chance
it would have received the contract award but for that error.’” Alfa Laval Separation, Inc.
v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999) (quoting Statistica, Inc. v.
Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996)). “In other words, the protestor’s
chance of securing the award must not have been insubstantial.” Info. Tech. &
Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003) (citations
omitted). The substantial chance requirement does not mean that plaintiff must prove it
was next in line for the award but for the government’s errors. See Sci. & Mgmt. Res.,
Inc. v. United States, 117 Fed. Cl. 54, 62 (2014); see also Data Gen. Corp. v. Johnson, 78
F.3d 1556, 1562 (Fed. Cir. 1996) (“To establish prejudice, a protester is not required to
show that but for the alleged error, the protester would have been awarded the contract.”).
But plaintiff must, at minimum, show that “had the alleged errors been cured, . . . ‘its
chances of securing the contract [would have] increased.’” Precision Asset Mgmt. Corp.
v. United States, 125 Fed. Cl. 228, 233 (2016) (quoting Info. Tech., 316 F.3d at 1319).

Given the considerable discretion allowed contracting officers, the standard of
review is “highly deferential.” Advanced Data Concepts, Inc. v. United States, 216 F.3d
1054, 1058 (Fed. Cir. 2000). As the Supreme Court of the United States has explained,
the scope of review under the “arbitrary and capricious” standard is narrow. See
Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974). “A
reviewing court must ‘consider whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment,” and “[t]he court is
not empowered to substitute its judgment for that of the agency.’” Id. (quoting Citizens
to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)); see also Weeks Marine,
575 F.3d at 1368-69 (stating that under a highly deferential rational basis review, the
court will “sustain an agency action ‘evincing rational reasoning and consideration of
relevant factors’”) (citing Advanced Data Concepts, 216 F.3d at 1058).

III. Analysis

According to plaintiff, “[h]ad the Agency not evaluated proposals irrationally,
arbitrarily, and capriciously [plaintiff] would have stood a substantial chance of receiving
award.” ECF No. 78 at 18. Specifically, plaintiff argues that the VA’s evaluation was
flawed because: (1) it “failed to consider whether two offerors . . . were ineligible for
award due to an immitigable OCI,” id. at 16, 18-23; (2) it failed to “consider
conformance with Solicitation requirements,” id. at 16, 23-27; (3) it conducted a “faulty

12
past performance evaluation,” id. at 16, 27-33; (4) it failed “to evaluate proposals
equally,” id. at 16, 33-40; (5) it failed “to give [plaintiff’s] proposal a fair reading,” id. at
16, 41-46; and (6) it made a “flawed competitive range determination,” id. at 16, 46-48.

Defendant responds that, “[a]s an initial matter, [plaintiff] cannot establish
standing to bring this protest.” ECF No. 85 at 31. Plaintiff, defendant contends, cannot
establish that it had a substantial chance of inclusion in the competitive range because
“the solicitation . . . did not require a set number of awards,” and therefore another
offeror’s exclusion did not make plaintiff “any more likely to receive an award.” Id. at
37; see also id. at 37-38. Further, defendant argues, even if plaintiff had standing, the
agency’s competitive range determination “was supported by substantial evidence and
[was] in accordance with law and regulation.” Id. at 39.

Intervenor-defendant Decisive Point, echoes defendant’s arguments and adds that
plaintiff’s arguments “amount[ ] to mere disagreement with the agency’s judgment,” ECF
No. 80 at 9, which does not meet the “heavy burden to overturn the agency’s well-
reasoned evaluative judgments,” id. Similarly, intervenor-defendant Aptive notes that, in
addition to defendant’s arguments, plaintiff could not have been prejudiced by Aptive’s
evaluation because Aptive’s “inclusion in the competitive range did not prevent
[plaintiff] from also making the competitive range.” ECF No. 83-2 at 5. Put another
way, “if Aptive were excluded from the competitive range, it would not mean that
[plaintiff] would be included.” 5 Id.

A. Plaintiff Has Standing to Protest Its Exclusion from the Competitive Range

The record is clear that, for standing purposes, plaintiff was an actual offeror in the
subject procurement. See Weeks Marine, 575 F.3d at 1359; see also ECF No. 47 at 11;
ECF No. 45-2 at 794-850. Thus, to establish standing plaintiff must demonstrate that it
has a direct economic interest in the procurement. See Weeks Marine, 575 F.3d at 1359.
To demonstrate a direct economic interest sufficient to support standing, plaintiff must
both show that it had a substantial chance of award and show that it was prejudiced by
the agency’s action. See Wis. Physicians Serv. Ins. Co. v. United States, 151 Fed. Cl. 22,
30 (2020). In short, plaintiff “must show that there was a ‘substantial chance’ it would
have received the contract award but for the alleged error in the procurement process.”
Info. Tech., 316 F.3d at 1319 (citing Alfa Laval, 175 F.3d at 1367). To make the
appropriate showing, plaintiff must demonstrate “more than a bare possibility of
receiving the award.” Precision Asset, 125 Fed. Cl. at 233 (citing Bannum, 404 F.3d at
1358) (affirming the trial court’s determination that the plaintiff had not demonstrated a

5
Because intervenor-defendants’ arguments track closely with defendant’s arguments, the
court will not separately discuss each intervenor-defendant’s arguments unless they are both
different from the arguments made by defendant and pertinent to this decision.

13
substantial chance of award when its “argument rest[ed] on mere numerical possibility,
not evidence”).

An offeror that was properly eliminated from the competition as “untimely,
technically unacceptable, or otherwise failing to merit consideration as a finalist,” only
has standing to challenge its elimination from the competition and lacks standing to
challenge any agency action subsequent to its elimination. Wis. Physicians, 151 Fed. Cl.
at 30-31 (citing Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1380-81 (Fed.
Cir. 2009)). In Wisconsin Physicians, the court held that an offeror eliminated from
competition as technically unacceptable had standing to challenge its own proposal
evaluation. 6 See id. at 32. After it found that the agency’s evaluation and plaintiff’s
elimination as technically unacceptable were appropriate, the court went on to hold that
plaintiff did not have standing to challenge any agency action after its elimination,
including a potential OCI. See id. at 43-44.

Defendant concedes that under the standing test, and applying the reasoning in
Wisconsin Physicians, plaintiff has standing to challenge “the agency’s evaluation of its
proposal,” but argues that it does not have standing to bring the rest of its claims. ECF
No. 100 at 11; see also id. at 11-18. Plaintiff, however, argues that it has standing to
pursue each of its challenges because “[e]very single argument [plaintiff] has raised
relates to the evaluation of proposals prior to the Agency’s competitive range
determination,” and plaintiff was “either next in line for admission to the competitive
range or the second company in line.” ECF No. 102 at 6.

The court agrees that plaintiff has standing to challenge its own evaluation and to
challenge its alleged disparate treatment during the evaluation process. In the court’s
view, plaintiff has demonstrated that it had a substantial chance of being included in the
competitive range. Plaintiff need not show actual causation to make such a showing. See
Bannum, 404 F.3d at 1358 (“This test is more lenient than showing actual causation.”).
Plaintiff’s alleged position as “either next in line” or second in line for inclusion in the
competitive range, along with the alleged flaws in the VA’s evaluation, are sufficient to
establish plaintiff’s substantial chance of inclusion in the competitive range. ECF No.
102 at 6; see also Info. Tech., 316 F.3d at 1319. Thus, as in Wisconsin Physicians,
plaintiff has alleged errors in its technical evaluation and error in the consideration of the
past performance factor that, if valid, could have placed plaintiff within the final
competitive range. See Wis. Physicians, 151 Fed. Cl. at 32.

The court, however, cannot make a determination about plaintiff’s standing to
protest the agency’s actions subsequent to plaintiff’s elimination until it has determined
whether the agency appropriately evaluated plaintiff’s proposal. See id. at 30.

6
While not binding, the court finds the reasoning in Wisconsin Physicians Service
Insurance Co. v. United States, 151 Fed. Cl. 22 (2020), persuasive.
14
 B. The VA’s Evaluation of Plaintiff’s Proposal Was Not Arbitrary or
Capricious

1. The VA Appropriately Evaluated the Offerors’ Past Performance

Plaintiff argues that in evaluating the offerors’ past performance, “nothing in the
record shows that the Agency looked at the underlying evaluations, differentiated
between marginal and unsatisfactory ratings, differentiated the seriousness of the
compound ratings, considered contractor responses and the reviewing agency’s findings,
or even asked for [pertinent task orders].” ECF No. 78 at 30. Instead, plaintiff contends,
the VA “assigned scores and copied and pasted the same word-for-word finding that
formed the basis for a ‘low risk’ rating,” id., and “conducted no analysis,” id. at 31. “Had
the Agency performed any analysis,” plaintiff argues, “it would not likely have deemed
[four of the awardees] Low Risk,” and plaintiff’s “low risk rating would have given it a
significant advantage over these four companies.” Id. at 33.

Review of the record reveals that the VA’s evaluation was detailed and reasoned,
including its assessment of each of the offerors’ past performance. See ECF No. 45-12 at
1288-89. The VA’s evaluation included:

(1) A detailed overview of each offeror’s past performance and weaknesses,
see ECF No. 45-12 at 772-76, 800-02, 824-26, 851-54, 877-79, 904-06,
929-31, 953-60, 982-87, 1009-11, 1033-38, 1060-63;

(2) A more than 200-slide presentation that included a detailed review of each
offeror’s past performance, see id. at 1136-1221; and

(3) A final competitive range determination memorandum explaining the
SSA’s and contracting officer’s review of the evaluation and rationale for
their decision-making, see id. at 1284-89, 1288 (noting that “although each
of the 33 Offerors that submitted Step Two proposals were assessed a
varying number of weaknesses, each was considered to be Low Risk”).

Reviewing each of these evaluations, it appears to the court that the VA
specifically considered all of the relevant factors in assigning the past performance
ratings.

Taking into account the detail of the VA’s evaluation, the court cannot credit
plaintiff’s assertion that the VA “conducted no analysis.” ECF No. 78 at 31. It is not in
the court’s purview to “‘substitute its judgment for that of the agency.’” Bowman, 419
U.S. at 285 (quoting Citizens to Preserve Overton Park, 401 U.S. at 416). If, as it has
here, the VA has “articulate[d] a ‘rational connection between the facts found and the
choice made’” the court will uphold the decision. Id. (quoting Burlington Truck Lines v.
United States, 371 U.S. 156, 168 (1962)). The court perceives no failure to consider

15
relevant factors for evaluation or clear error of judgment by the VA that would support
overturning the agency’s conclusions. See Bowman, 419 U.S. at 285. Instead, it appears
that plaintiff’s challenges to the VA’s past performance evaluation amount to
disagreements with the VA’s conclusions.

2. The VA Applied the Evaluation Criteria Equitably

According to plaintiff, the VA treated several offerors more favorably than
plaintiff for similar issues in their Sample Task and management proposals. See ECF No.
78 at 33-35, 36-39, 39-41. Specifically, plaintiff argues that the agency assigned plaintiff
one significant weakness and two weaknesses for its Sample Task 2 proposal, when it
“understood” that plaintiff’s proposal was more “accurate and complete,” id. at 34, than
offerors that were rated more favorably for the same areas of the proposal, see id. at 34-
35. And, for its Sample Task 1 evaluation, plaintiff argues that the VA assigned it two
weaknesses while two other offerors received strengths despite “fail[ing] to address
various aspects of these high level focus areas in the same way the Agency determined
[plaintiff] did.” Id. at 40. Plaintiff further contends that it “proposed the same features”
that garnered significant strengths for other offers in their management proposals but
plaintiff received only strengths. Id. at 37; see also id. at 37-39.

Defendant responds that plaintiff’s complaints “amount to nothing more than mere
disagreement with the agency’s technical determinations.” ECF No. 85 at 43. Defendant
asserts that the differences in rating resulted from differences in the proposals. See id. at
49-52 (pointing out the differences in Sample Task 2 proposals that merited different
ratings); id. at 56-57 (arguing that plaintiff’s Sample Task 1 weaknesses were the result
of overall lack of detail while other offerors provided detail in areas that plaintiff did
not); id. at 57 (arguing that plaintiff’s allegations of disparate treatment with respect to its
management proposal can be “traced to valid distinctions” in its proposal).

To prevail on its claims of disparate treatment, plaintiff must demonstrate that the
VA “unreasonably downgraded its proposal for deficiencies that were ‘substantively
indistinguishable’ from or nearly identical to those contained in other proposals.” Office
Design Grp. v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020) (quoting Enhanced
Veterans Sols., Inc. v. United States, 131 Fed. Cl. 565, 588 (2017)). If plaintiff fails to
demonstrate that the proposals at issue are “indistinguishable for purposes of the
evaluation, then the exercise instead crosses the line and involves the second guessing of
‘minutiae,’” which is an inappropriate exercise for the court to undertake. Enhanced
Veterans, 131 Fed. Cl. at 588 (quoting E.W. Bliss Co. v. United States, 77 F.3d 445, 449
(Fed. Cir. 1996)).

A careful review of plaintiff’s cited examples of allegedly disparate treatment
demonstrates that plaintiff has not made the requisite showing that its proposal is
“substantively indistinguishable” from the other quoters’ proposals. See Office Design

16
Grp., 951 F.3d at 1372. Plaintiff’s examples represent granular similarities between the
proposals that do not account for differences between the overall proposals and overall
evaluations. 7 See, e.g., ECF No. 78 at 33-34 (addressing plaintiff’s example of the
agency’s evaluation of its architecture/network diagram). Compare, e.g., ECF No. 45-12
at 846, with id. at 899 (the agency’s evaluation of each offeror’s architecture/network
diagram). When taking into account the entirety of the proposals and the entirety of the
evaluations, the proposals that plaintiff asserts are “substantively indistinguishable,”
become readily distinguishable. Office Design Grp., 951 F.3d at 1372.

The court will not involve itself in the inappropriate “second guessing of
‘minutiae’” for which plaintiff presses. Enhanced Veterans, 131 Fed. Cl. at 588 (quoting
E.W. Bliss, 77 F.3d at 449). The court is satisfied that the agency closely reviewed each
proposal and that any differences in evaluation outcome are not the result of disparate
treatment of “indistinguishable” proposals. Id. Rather, in the court’s view, the
evaluation flaws and disparate treatment of which plaintiff complains amount to a strong
disagreement with the conclusions the VA drew during its evaluation. The court cannot
and will not substitute its judgment for that of the agency when the agency has clearly
articulated a rational connection between facts and conclusions about distinguishable
proposals. See Bowman, 419 U.S. at 285; Office Design Grp., 951 F.3d at 1372.
Plaintiff’s claims related to the VA’s evaluation of its proposal must, therefore, fail.

3. The VA Reasonably Reviewed Plaintiff’s Proposal

Plaintiff goes on to argue that the agency failed to “give its proposal a fair
reading,” ECF No. 78 at 46, when it assigned unreasonable weaknesses to plaintiff’s
Sample Task proposals and failed to “recognize numerous strengths,” see id. at 41.
According to plaintiff, in its evaluation of plaintiff’s Sample Task 1 proposal the VA
assigned unreasonable weaknesses when it recognized elements of plaintiff’s proposal
but failed to credit them, see id. at 41, “misread” plaintiff’s proposal, id. at 42, and failed
to acknowledge certain of plaintiff’s proposal details, see id. Likewise, plaintiff alleges
that the agency unreasonably evaluated its Sample Task 2 proposal when the agency
incorrectly noted that plaintiff failed to provide information that it did, in fact, provide.
See id. at 43-46. Defendant responds that plaintiff’s assertions amount to disagreements
with the VA’s evaluation and that plaintiff “has not identified any legitimate basis to

7
For example, while, as plaintiff points out, offeror 57 and plaintiff both received
diminished ratings for their failure to fully depict their services in their architecture/network
diagrams, and plaintiff received a significant weakness, while offeror 57 received a weakness,
the agency notes some differences in its evaluations of each proposal. Compare ECF No. 45-12
at 899 with id. at 846. Specifically, the agency noted that plaintiff failed to “clearly depict the [ ]
. . . it used,” id. at 846, while offeror 57 showed one environment and at least parts of a second,
see id. at 899. The court carefully reviewed each of plaintiff’s examples and cites just this one as
an exemplar of what it found for each cited example.
17
question the VA’s discretionary analysis” of plaintiff’s proposal. ECF No. 85 at 43; see
also id. at 43-48, 52-56.

The record reveals that the agency conducted a thorough evaluation of each
proposal. See ECF No. 45-12 at 1284-89 (detailing the evaluation). The VA’s review
included:

(1) An initial 147-slide briefing related to the evaluation of Sample Task 1,
which included information about the strengths and weaknesses of each
offeror and a detailed price evaluation, see ECF No. 45-5 at 49-196;

(2) An initial competitive range determination memorandum, and a
confirmation of that determination after items for negotiation were
considered, see id. at 239-42;

(3) Evaluation reports for each offeror that included a detailed overview of the
assessed strengths and weaknesses for the sample tasks and management
proposal, the past performance summary and weaknesses, the veterans
employment calculation, and the strengths and weaknesses of the small
business participation levels, see ECF No. 45-12 at 752-1066;

(4) A second, more than 200-slide, presentation that included details about the
strengths and weaknesses of each offeror’s Sample Task 2 and management
proposals, a detailed review of each offeror’s past performance, a
calculation of each offeror’s veterans employment percentage, and a review
of each offeror’s small business participation, see id. at 1069-1283; and

(5) A final competitive range determination memorandum explaining the
SSA’s and contracting officer’s review of the evaluation and rationale for
their decision-making, see id. at 1284-89.

Taking into account the detail of the VA’s evaluation, the court cannot credit
plaintiff’s assertion that the VA failed to “give its proposal a fair reading.” ECF No. 78
at 46. It is not in the court’s purview to “‘substitute its judgment for that of the agency.’”
Bowman, 419 U.S. at 285 (quoting Citizens to Preserve Overton Park, 401 U.S. at 416).
If, as it has here, the VA has “articulate[d] a ‘rational connection between the facts found
and the choice made’” the court will uphold the agency’s decision. Id. (quoting
Burlington Truck Lines, 371 U.S. at 168). The court perceives no failure to consider
relevant factors for evaluation or clear error of judgment by the VA that would support
overturning the agency’s conclusions. See Bowman, 419 U.S. at 285. Instead, it appears
that plaintiff’s challenges to the VA’s evaluation of its proposal amount to disagreements
with the VA’s conclusions.

18
 C. Plaintiff Does Not Have Standing to Pursue Its Challenges to the Agency’s
Actions Subsequent to Its Elimination

Having found that the VA did not act arbitrarily or capriciously in evaluating
plaintiff’s proposal, and that plaintiff was thereby appropriately eliminated from the
competition, the court now turns to the question of plaintiff’s standing to pursue its
claims regarding the agency’s actions subsequent to plaintiff’s elimination.

Defendant argues that plaintiff does not have standing to bring its remaining
claims because it cannot establish prejudice. See ECF No. 100 at 13, 16, 18. Defendant
further argues that, because the solicitation provided for multiple awards rather than a set
number of awards, any errors in the evaluation of those offerors included in the
competitive range—and the eventual awardees—cannot have prejudiced plaintiff. See id.
at 13-18.

Plaintiff responds that if it had received the scores it “should have received,” it
would have been “well above four companies in the second competitive range,” and
“would have received award.” ECF No. 102 at 9. Further, plaintiff argues, it has
“advanced non-frivolous allegations that five of the nine [awardees] should have been
removed from consideration entirely,” would have ensured plaintiff was “within the final
seven companies to whom the Agency contemplated making award.” Id.; see also id. at
10 (making the same argument related to the “immitigable OCIs the Agency never
considered”). Thus, plaintiff contends, it has standing to raise each of these issues. See
id. at 10-17.

In the court’s view, each of plaintiff’s remaining challenges constitutes a challenge
to the agency’s actions subsequent to plaintiff’s elimination from the competition. As
such, plaintiff could not have been prejudiced by the agency’s actions and lacks standing
to bring the claims. The court will explain how this principle applies to each claim, in
turn.

1. Plaintiff Was Not Prejudiced by Any Alleged Failure to Exclude
Intervenor-Defendant Aptive

Plaintiff argues that the VA should have excluded intervenor-defendant Aptive
from the competition for two reasons: (1) Aptive made substantive revisions to its
Sample Task 1 proposal in response to Amendment 1 “that the Solicitation prohibited,”
ECF No. 78 at 23; and (2) Aptive failed to submit its required CTAs as part of its
management proposal, see id. at 26-27. Likewise, four other awardees failed to submit
signed veterans employment certifications. See id. at 25. According to plaintiff, by
permitting Aptive and the other awardees to proceed with proposals that failed to
conform to the solicitation requirements, the VA treated them more favorably than
plaintiff. See id. at 26-27. Plaintiff contends that if the other offerors had been
“evaluated . . . according to the Solicitation’s requirements, [plaintiff] had a substantial
19
chance of receiving an award.” Id. at 27. Plaintiff further argues that it has standing to
pursue this claim because had the agency properly evaluated these proposals and
eliminated them, “there would have been fewer than seven companies in that range, [and
plaintiff] would have been included.” ECF No. 102 at 13 (emphasis in original).

Defendant responds that because plaintiff “cannot establish that it was improperly
eliminated from the competitive range . . ., there is no basis for [plaintiff] to argue that it
was prejudiced by the VA’s alleged failures to eliminate nonresponsive proposals.” ECF
No. 85 at 72. Defendant further argues that “Aptive’s inclusion [in the competitive
range] is independent and distinct from [plaintiff’s] elimination.” ECF No. 100 at 12.
And, because the “solicitation did not establish that the agency would make a certain
number of awards,” “the removal of one Offeror” from the group of the “most highly
rated proposals” “does not elevate another offeror . . . to the most highly rated.” Id. at 12.

To succeed on its argument that the VA should have excluded other offerors,
plaintiff must demonstrate that it was prejudiced—meaning, at minimum, show that “had
the alleged errors been cured, . . . ‘its chances of securing the contract [would have]
increased.’” Precision Asset, 125 Fed. Cl. at 233 (quoting Info. Tech., 316 F.3d at 1319).
The court agrees with defendant that plaintiff has not done so. In the court’s view, the
VA’s evaluation of the proposals, whether inappropriately revised or missing required
components, did not affect the VA’s evaluation of plaintiff’s proposal. Plaintiff has
neither explained how—nor pointed to any record evidence that—a change in the VA’s
evaluation of Aptive’s proposal would have changed how the VA viewed plaintiff’s
proposal. Simply stating that its proposal “was either next in line for admission to the
competitive range or the second company in line,” is insufficient under the multi-award
circumstances here. ECF No. 102 at 6; see also Wis. Physicians, 151 Fed Cl. at 43
(noting that it would be “illogical” for an agency to “reverse course and reinstate an
offeror that had been eliminated from the competition as technically unacceptable”
merely because another offeror’s proposal was deficient). As defendant noted, there was
no guaranteed number of awards, and the exclusion of one offeror from the competitive
range did not necessarily ensure the inclusion of another. See ECF No. 100 at 12.
Therefore, regardless of the VA’s evaluation of the other proposals, plaintiff cannot
establish prejudice sufficient to confer standing, and its claim on this point must fail. See
Alfa Laval, 175 F.3d at 1367 (noting that to establish prejudice, “a protester must show
‘that there was a substantial chance it would have received the contract award but for that
error’”) (quoting Statistica, 102 F.3d at 1582).

2. Plaintiff Was Not Prejudiced by the VA’s Alleged Improper Use of
Competitive Range Procedures

Plaintiff argues that the VA “neither gave meaningful consideration to all
evaluation criteria nor had any reason to conduct discussions,” making its use of a

20
competitive range inappropriate. 8 ECF No. 78 at 47. According to plaintiff, the VA’s
establishment of the competitive range “was a disguised source selection decision.” Id.
Plaintiff contends that the IFNs the agency issued for discussions were “intended to cure
Solicitation compliance defects” and to request information about past performance “that
the Agency already knew the answers to and for which it performed an entirely
perfunctory and undocumented evaluation.” Id. This, plaintiff argues, demonstrated that
the VA did not “intend to use the competitive range determination to cull out additional
offers,” id., and made the VA’s source selection decision “defective,” ECF No. 89 at 27.

Defendant responds that the agency properly utilized competitive range
procedures, and plaintiff lacks standing to advance this claim. See ECF No. 85 at 61-64;
ECF No. 100 at 15-16. Defendant notes that the agency actions were reasonable, in
compliance with the regulations, and within its discretion. See ECF No. 85 at 62-63.
The VA, defendant contends, appropriately issued specific items for discussion in the
IFNs, see id. at 62, acknowledged that proposal revisions may be necessary, see id., and
ultimately permitted offerors “to make any revision permitted by the solicitation that they
desired,” id. at 63. Thus, according to defendant, the VA’s use of the competitive range
was “proper and should be upheld,” id. at 64, and plaintiff’s “unsupported speculation
about the agency’s intent should be rejected by the Court,” id. at 63. Defendant further
contends that plaintiff could not have been prejudiced by the agency’s use of the
competitive range after it was properly excluded from the range because changing the use
of the competitive range “would have no bearing on [plaintiff’s] chances to improve its
proposal or its chances for award.” ECF No. 100 at 16.

In the court’s view, the VA’s use of the competitive range—even if an
inappropriate use due to the lack of discussions—did not affect the VA’s evaluation of
plaintiff’s proposal. Plaintiff has neither pointed to any record evidence nor explained
how the VA’s view of plaintiff’s proposal would have changed had the VA not used
competitive range procedures. Simply stating that its proposal “was either next in line for
admission to the competitive range or the second company in line,” is insufficient. ECF
No. 102 at 6; see also Wis. Physicians, 151 Fed. Cl. at 43. There was no guaranteed
number of awards in this procurement, and the solicitation contemplated only seven
awards. See ECF No. 45-2 at 431. Plaintiff’s proposal was effectively the tenth or
eleventh highest rated proposal. See ECF No. 102 at 6 (stating that plaintiff’s proposal
was “either next in line for admission to the competitive range or the second company in
line”); ECF No. 45-19 at 729 (noting that there were nine offerors included in the
competitive range). The agency exercised its appropriate discretion to identify the
offerors providing the best value for this solicitation. Plaintiff does not explain, nor can

8
To the extent plaintiff’s argument on this point re-asserts its prior argument that the VA
failed to properly evaluate the proposals, the court has already reviewed that argument and
determined that the agency’s evaluation of the proposals was reasonable. See supra, Section B.
21
the court discern, how not using the competitive range would have improved plaintiff’s
chances of securing the contract in this multi-award procurement. ECF No. 78 at 46-48.

Further, to the extent that plaintiff’s assertion that the VA performed a “cursory
analysis of anything other than the Technical factor and . . . turn[ed] that Technical factor
into a go/no-go evaluation” is an argument that had the VA evaluated the whole proposal,
plaintiff would have been more likely to secure the contract, such argument is unavailing.
Id. at 48. The VA plainly considered all of the evaluation factors, as well as price, and
determined that each offeror in the final competitive range merited an award. See supra,
Section B; ECF No. 45-19 at 771-72; see also id. at 729-30. It appears to the court that
plaintiff’s argument is a further disagreement with the VA’s conclusion. The agency is
granted wide latitude in determining which proposal represents the best value for the
government. See E.W. Bliss, 77 F.3d at 449. And, as the court is not empowered to
substitute its judgment for that of the agency, it declines to do so here. Bowman, 419
U.S. at 285.

Regardless of whether the VA’s use of a competitive range was inappropriate,
plaintiff has failed to establish prejudice sufficient to confer standing and thus, its claim
on this point must fail. Alfa Laval, 175 F.3d at 1367 (quoting Statistica, 102 F.3d at
1582).

3. Plaintiff Was Not Prejudiced by the VA’s Addressing a Potential
Organizational Conflict of Interest

Plaintiff argues that the procurement is “tainted” by “immitigable OCIs” involving
Booz Allen Hamilton (BAH). ECF No. 78 at 18. According to plaintiff, BAH was a
“Major Subcontractor” for two offerors included in the competitive range as well as the
incumbent contractor along with Cerner for the VA’s EHRM contract. Id. (citing ECF
No. 45-5 at 297; ECF No. 45-7 at 148; ECF No. 45-20 at 16). This, plaintiff contends,
gives rise to “all three types of OCI with respect to this Solicitation.” Id. at 21.
Specifically, plaintiff argues that “the Agency failed to appropriately analyze the
acquisition to avoid, neutralize, or mitigate BAH’s significant and immitigable OCIs
even though the Agency was aware of BAH’s role in the EHRM program and its status as
a proposed Major Subcontractor to two offerors.” Id. at 22. Plaintiff argues that it has
standing to bring these claims because “there is nothing in the record to suggest that
[plaintiff] would not be included [in the competitive range] were Aptive and Decisive
Point eliminated.” ECF No. 102 at 17.

Defendant contends that plaintiff does not having standing to bring this claim and
it “failed to allege ‘hard facts’ establishing either an actual or apparent OCI.” ECF No.
85 at 80. According to defendant, plaintiff’s allegations are “speculation.” Id.
Defendant argues that any potential OCIs related to BAH did not require evaluation
during the solicitation at issue here, rather they “would need to be evaluated at the time of

22
the competition for [ ] task orders.” Id. And, even so, the contracting officer “evaluated
the potential for [OCIs] during the procurement” when he “considered whether
contractors or subcontractors who have supported the VA’s EHRM efforts would have an
[OCI] with respect to Sample Task 1.” Id. at 81. Defendant thus contends that the court
should defer to the contracting officer’s “‘considerable discretion’” in identifying
conflicts. Id. at 82.

Defendant further contends that “[plaintiff] has no standing to challenge the
contracting officer’s award of contracts to offerors with BAH as a subcontractor because
[plaintiff’s] proposal had been eliminated from the competitive range.” ECF No. 100 at
17. According to defendant, the multiple possible awards, and the fact that the agency
ultimately awarded more contracts than it originally planned, means that “[e]ven if
[plaintiff] were correct and the contracting officer were to determine that those offerors
with BAH as a subcontractor have a conflict that cannot be mitigated and therefore are
ineligible for award, [plaintiff’s] proposal would not be improved and thus brought back
into consideration for award.” Id.

In the court’s view, the VA’s evaluation of the potential OCI—even if
improper—did not affect the VA’s evaluation of plaintiff’s proposal. Plaintiff has
pointed to no record evidence and has not explained how the VA’s view of plaintiff’s
proposal would have changed had the VA evaluated the OCI differently. Simply stating
that its proposal “was either next in line for admission to the competitive range or the
second company in line,” is insufficient. ECF No. 102 at 6; see also Wis. Physicians, 151
Fed. Cl. at 43. “Unless there is a ‘connection between the government’s [alleged] error
and [the protestor’s] failure to secure the contract . . . , there is no injury to redress, and
no standing to sue.’” Wis. Physicians, 151 Fed. Cl. at 44 (quoting Labatt Food Serv., 577
F.3d at 1381) (alterations in original). Plaintiff does not explain, nor can the court
discern, how a different evaluation of the alleged OCI would have improved plaintiff’s
chances of securing the contract in this multi-award procurement where plaintiff’s
proposal had already been properly evaluated by the agency and found not to merit
further consideration. Therefore, plaintiff cannot establish prejudice sufficient to confer
standing, and its claim on this point must fail. See id. at 44-45.

IV. Conclusion

Accordingly, for the foregoing reasons:

(1) Plaintiff’s motion for judgment on the AR, ECF No. 78, is DENIED;

(2) Defendant’s and intervenor-defendants’ cross-motions for judgment on the
AR, ECF No. 80, ECF No. 83, and ECF No. 85, are GRANTED;

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(3) The clerk’s office is directed to ENTER final judgment in defendant’s and
intervenor-defendants’ favor DISMISSING plaintiff’s complaint with
prejudice; and

(4) On or before March 21, 2022, the parties are directed to CONFER and
FILE a notice attaching the parties’ agreed upon redacted version of this
opinion, with all competition-sensitive information blacked out.

IT IS SO ORDERED.

s/Patricia E. Campbell-Smith
PATRICIA E. CAMPBELL-SMITH
Judge

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