Vanquish Worldwide, LLC v. United States

In the United States Court of Federal Claims
No. 22-887C
(Filed Under Seal: November 10, 2022)
(Reissued for Publication: November 21, 2022)

)
VANQUISH WORLDWIDE, LLC, )
)
Plaintiff,
)
v. )
)
THE UNITED STATES, )
)
Defendant, )
)
and )
)
AMENTUM SERVICES, INC.,
)
Defendant- )
Intervenor. )
)

Michael D. Maloney, Williams Mullen, Tysons, VA, for Plaintiff. Of counsel was Todd W.
Miller, Miller & Miller, Golden, CO.

Andrew Hunter, Commercial Litigation Branch, Civil Division, United States Department
of Justice, Washington, D.C., for Defendant. With him on the briefs were Brian M.
Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director,
and Franklin E. White, Jr., Assistant Director. Of counsel was Captain Natalie W.
McKiernan, Contract Litigation & Intellectual Property Division, United States Army
Legal Services Agency, Fort Belvoir, VA.

Kevin P. Connelly, Vedder Price P.C., Washington, D.C., for Defendant-Intervenor. Of
counsel were Kelly E. Buroker, Tamara Droubi, and Jeffrey M. Lowry.
 OPINION AND ORDER *

SOLOMSON, Judge.

This is a story not of a party sleeping on its rights but relinquishing them and then
seeking a mulligan.

In a previous action before this Court, Defendant-Intervenor, Amentum Services,
Inc. (“Amentum”), challenged the award of a contract by Defendant, the United States —
acting by and through the U.S. Department of the Army (the “Army”) — to Plaintiff,
Vanquish Worldwide, LLC (“Vanquish”). In response to Amentum’s complaint, the
government proposed corrective action to moot the dispute. All the parties — and this
Court — agreed to the government’s approach, including the dismissal for mootness.
Vanquish has since found the Army’s corrective action wanting and thus asks this Court
to order the Army to stop or modify its ongoing corrective action process.

As explained below, the fatal sand trap for Vanquish here is that it agreed to the
Army’s selected course of action and cannot now restart at the first hole.

I. FACTUAL BACKGROUND 1

A. The Procurement

1. The Solicitation

This case concerns the Enhanced Army Global Logistics Enterprise (“EAGLE”)
program. AR 1. The objective of the EAGLE program “is to provide global logistics
services, primarily [m]aterial [m]aintenance [s]ervices, [r]etail/[w]holesale [s]upply
[s]ervices, and [t]ransportation [s]upport [s]ervices, that meet the Army’s logistics
mission needs in the most efficient and cost-effective manner.” AR 4.

*Pursuant to the protective order in this case, the Court initially filed this opinion under seal on
November 10, 2022, and directed the parties to propose redactions of confidential or proprietary
information by November 17, 2022. The parties have jointly submitted proposed redactions to
the Court. ECF No. 37. The Court adopts those redactions, as reflected in this public version of
the opinion. Words or phrases that are redacted have been replaced with [ * * * ].
1 This background section constitutes the Court’s findings of fact drawn from the administrative
record. Rule 52.1 of the Rules of the United States Court of Federal Claims, covering judgment
on the administrative record, “is properly understood as intending to provide for an expedited
trial on the record” and requires the Court “to make factual findings from the record evidence as
if it were conducting a trial on the record.” Bannum, Inc. v. United States, 404 F.3d 1346, 1354, 1356
(Fed. Cir. 2005). Citations to the administrative record, see ECF Nos. 21, 24, are denoted as “AR”
followed by the page number. Additional findings of fact are made throughout Section V.

2
 EAGLE is implemented through “a multi-step acquisition process,” via which the
Army periodically awards basic ordering agreements (“BOAs”). AR 4. 2 The Army then
issues competitive task order “requests for specific requirements that will result in one
requirements task order per [Army] installation.” AR 4. The initial estimated value for
the EAGLE program was $23.8 billion. AR 25; AR 30. 3 On September 1, 2016, the Army
approved an “extension to the EAGLE acquisition strategy for a period of ten (10) years
beyond the . . . expiration date of 27 September 2017.” AR 65.

On October 28, 2019, the Army finalized a Source Selection Plan (“SSP”) for “a
requirement for contract services to support logistics support services at Fort Polk, LA
covering a five year period from [an] anticipated start date of May 2020 through May
2025.” AR 81. The anticipated contract (the “Task Order”) would cover “activities [that]
directly and indirectly support training of forces, preparing forces for deployment,
sustainment, redeployment in support of current conflicts, reset forces, and to rebuild
readiness for future deployments and contingencies to meet the demands of a persistent
conflict in the 21st Century.” AR 83. The Army estimated the total value of the
procurement at approximately [ * * * ]. AR 83. The SSP indicated that the Task Order
“will be solicitated on a competitive basis through a full and open competition to all
[EAGLE BOA] holders utilizing a competitive best value source selection process,” in
accordance with FAR 15.101-1. AR 83.

On April 6, 2020, see AR 11150, the Army issued the request for proposals for the
Task Order, Solicitation No. W52P1J-19-R-0081 (the “Solicitation” or “RFP”). AR 95–345. 4
The Solicitation informed potential offerors that the Army intends to award a cost-plus-
fixed fee task order with a performance period of a one-year base period (including a
sixty-day transition-in period), four one-year option periods, and one six-month option
period in accordance with Federal Acquisition Regulation (“FAR”) 52.217-8. AR 96 (RFP
§ A.3). Amentum’s predecessor is the incumbent contractor for the services sought in the
RFP. AR 96 (RFP § A.7); AR 1949 (Amentum Proposal). Proposals were due June 25,
2020. AR 1245 (RFP Amendment 0006).

2See AR 31 (explaining that, “[p]ursuant to Federal Acquisition Regulation 16.702(a)(2) BOAs are
not contracts,” and “therefore, the contractual obligation occurs at task order execution”); AR 70
(Pre-Solicitation Notice) (delineating “the annual synopsis for requirements falling under the
scope of the [EAGLE] program” for which additional BOAs would be awarded).
3As of May 9, 2016, only approximately $1.7 billion of the projected $23.8 billion had been
awarded. AR 66.
4 The Army issued seven (7) amendments to the RFP between May 1, 2020, and June 23, 2020. See
AR 346–597 (RFP Amendment 0001) (issued May 1, 2020); AR 597–645 (RFP Amendment 0002)
(issued May 20, 2020); AR 646–47 (RFP Amendment 0003) (issued May 27, 2020); AR 648–1241
(RFP Amendment 0004) (issued June 4, 2020); AR 1242–43 (RFP Amendment 0005) (issued June
10, 2020); AR 1244–45 (RFP Amendment 0006) (issued June 22, 2020); AR 1246–1248 (RFP
Amendment 0007) (issued June 23, 2020).

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 Section L of the RFP, as always, provided instructions for proposal preparation,
with several instructions designated as “COMPLIANCE REQUIREMENT[S].” See, e.g.,
AR 154 (RFP § L.4.1.2(b)) (“COMPLIANCE REQUIREMENT: Failure to provide the most
current versions of the RFP Attachments 0002, 0003, or 0005 shall render the Offeror[’]s
proposal non-compliant and [it] will not be further considered for award.” (emphasis
omitted)); AR 155 (RFP § L.5.1.1(d)) (“COMPLIANCE REQUIREMENT: Failure to
provide the signed SF 33 will render the Offeror’s proposal non-compliant. The proposal
will not be evaluated and will not be further considered for award.” (emphasis omitted)). 5

The RFP further warned offerors:

Failure to provide proposals in compliance with the instructions
specified as COMPLIANCE REQUIREMENTS in Section L of this
RFP and in compliance with ALL instructions in Section M.3 of
this RFP shall render the Offeror’s proposal non-compliant. The
proposal will not be evaluated and will not be further considered for
award.

AR 153 (RFP § L.2.1). 6

With regard to the possibility of discussions, 7 Section L cautioned offerors as
follows:

[T]he Government intends to award a task order without
discussions. Offerors are cautioned to examine this RFP in its
entirety and to ensure that proposals contain all necessary
information, provide all required documentation, and are
complete in all respects. The Government is not obligated to
make another request for the required information nor does

5 The Court counts at least fifteen (15) additional proposal instructions in Section L similarly
designated as a “COMPLIANCE REQUIREMENT.” AR 154, 156–57, 159–61, 164–70; see also
AR 173 (RFP § M.3.2.1) (“The Government will compare the Offeror’s proposal to Section L in
order to perform a compliance review. Any Offeror’s proposal determined non-compliant per
the terms noted in Section L or determined non-compliant per paragraphs M.3.2.1.1 through
M.3.2.1.2(c) below[] will not be evaluated and will not be further considered for award.”).
6 The substance of this warning was repeated in Section L.4.1.2. AR 154 (RFP § L.4.1.2) (“To be
considered for this requirement, the Offeror must submit a complete response to this RFP using
the instructions provided in Section L. COMPLIANCE REQUIREMENT: If the Offeror’s proposal
fails to meet the terms and conditions of the RFP or takes exception to any of the terms and conditions of
the RFP, will render the Offeror’s proposal unacceptable and will not be further considered for award.”).
7 See FAR 15.306 (“Exchanges with offerors after receipt of proposals”); FAR 15.307 (“Proposal
revisions”).

4
 the Government assume the duty to search for data to cure
problems it finds in proposals. The Government reserves the
right to conduct discussions in the evaluation process and to permit
Offerors to revise proposals, if deemed necessary.

AR 152 (RFP § L.1.2) (emphasis added). The RFP further provided that “the Contracting
Officer may limit the number of proposals in the competitive range,” and that “[a]ny
Offeror eliminated from further consideration will be notified in writing.” AR 153 (RFP
§ L.1.2).

The RFP in Section L did not expressly explain whether the government’s
reservation of rights to conduct discussions “to cure problems it finds in proposals” and
“to permit Offerors to revise proposals, if deemed necessary,” AR 152 (RFP § L.1.2), might
apply to an initial proposal that failed a compliance requirement. On the other hand,
despite the warnings cautioning offerors that a proposal that fails a specifically-
designated compliance requirement “will not be evaluated” or be “further considered for
award,” AR 153 (RFP § L.2.1), the RFP “reserve[d] the [Army’s] right to . . . waive the
strict compliance review” and to “conduct discussions,” AR 172 (RFP § M.2); see also AR
172 (RFP § M.3) (“The Government reserves the right to waive the Strict Compliance
Review if it is in the Government[’]s best interest.”).

Section M of the RFP provided that the Army’s evaluation would proceed in
stages, in accordance with the Army’s strict compliance review, “starting with the lowest
total proposed priced offer” and progressing “to the highest total proposed priced offer,
until at least five (5) or 20% of the proposals (whichever is greater) are determined to be
compliant.” AR 172 (RFP § M.3.2). The RFP advised offerors “that initially only the pool
of five (5) or 20% (whichever is greater) of the proposals found to be compliant will move”
on in the process for further evaluation. AR 172; see also AR 173 (RFP § M.3.2.2) (“Only
Offerors whose proposals are determined to be compliant will move to Step 1 of the
evaluation process.”).

Section M.4 of the RFP delineated the Army’s evaluation methodology. AR 173.
It provided for “a competitive best value source selection in which competing Offerors
will be evaluated against four evaluation factors: Technical, Past Performance, Cost/
Price, and Small Business Participation.” AR 173 (RFP § M.4.1). The Army had to
“evaluate the Technical Factor on an Acceptable/Unacceptable basis.” AR 173. The RFP
further required the Army to perform a “qualitative assessment” of past performance “by
assigning confidence ratings.” AR 173. Although “Cost/Price will be an evaluated
factor[,] . . . it will not be rated.” AR 173. Finally, the RFP provided that “[t]he
Government will evaluate the Small Business Participation Factor on an Acceptable/
Unacceptable basis.” AR 173. In terms of relative weights and the ultimate best value
decision, “[t]he Past Performance Factor is significantly more important than the
Cost/Price Factor and Small Business Participation Factor” and “[a]ll non-cost factors,

5
when combined, are significantly more important than the Cost/Price Factor.” AR 173.
Contradicting general best value trade-off principles, however, the RFP provided that
“[a]ward will be made to the responsible Offeror with the lowest evaluated (fair and
reasonable) priced proposal that is determined Technically Acceptable with Substantial
Confidence in Past Performance and an Acceptable rating in Small Business
Participation.” AR 173.

For the proposals that made it past the strict compliance review, if performed, the
RFP provided for a three-step evaluation process. In “Step 1,” the Army would evaluate
offerors’ technical proposals “on an Acceptable/Unacceptable basis” in accordance with
the evaluation criteria set forth in Section M.5. AR 173 (RFP § M.4.1). As part of Step 1,
“the Government reserve[d] the right to conduct discussions [in accordance with Section]
M.4.4 . . . if the Contracting Officer determines that discussions would be advantageous
[to] the Government.” AR 173. Following the technical evaluation, “only the three (3)
lowest proposed priced compliant offerors determined technically acceptable will move
to Step 2.” AR 173.

With respect to “Step 2,” the RFP provided that the Army would conduct
evaluations of the past performance, cost/price, and small business participation factors.
AR 173 (RFP § M.4.1). As noted above, only the three “compliant proposals” with the
total lowest price “that are determined Technically Acceptable at Step 1 will be
evaluated” in Step 2 per “the [evaluation] criteria detailed in Section M.5.” AR 173. At
the end of Step 2, “[a]ll proposals which are determined to have Substantial Confidence
in Past Performance, an Acceptable rating in Small Business Participation, with a realistic
cost, will move to Step 3.” AR 174 (RFP § M.4.1.d).

“Step 3” involved the Army’s making a task order to the “responsible” offeror
whose proposal: (1) “complies with the RFP requirements” and is technically acceptable;
(2) offers a “fair and reasonable” price and “is determined to be the lowest total evaluated
priced proposal”; (3) receives a “Substantial Confidence” rating for the past performance
factor; and (4) is assigned an “Acceptable” rating for the small business participation
factor. AR 174 (RFP § M.4.1).

Nothing in Sections M.5 or M.4.4 clearly precluded discussions for offerors found
to be technically unacceptable following the evaluation of initial proposals. Indeed, the
RFP appears to contemplate the possibility of discussions within both Step 1 and Step 2:

M.4.4-Discussions
M.4.4.1-The Government intends to award without
discussions with respective Offerors. IF AND ONLY IF
discussions are conducted, upon completion of the Technical
Factor evaluations, the Government will make a subsequent
competitive range determination, [in accordance with] FAR

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 15.306, based on the final ratings of each [t]echnical proposal
against the Technical Factor evaluation criteria. Only
Offerors determined Technically Acceptable will remain in
this subsequent competitive range and proceed to the Past
Performance, Cost/Price, and Small Business Participation
evaluations identified in STEP 2 above.
M.4.4.2-IF AND ONLY IF discussions are conducted in Step 2,
upon completion of the Past Performance Factor and
Cost/Price Factor evaluations, the Government will make a
competitive range determination, [in accordance with] FAR
15.306. The Past Performance Factor will be evaluated using
a qualitative assessment by assigning confidence ratings. The
Cost/Price Factor will be evaluated for price reasonableness
and cost realism, but it will not be assigned an adjectival
rating. Only highly rated proposals or proposals not
requiring a major rewrite will remain in the competitive
range. Discussions will be held with all Offerors remaining
in the competitive range.

AR 174 (emphasis added).

Notably, the RFP expressly reserved the Army’s right not to follow the three-step
process at all: “The Government reserves the right to simultaneously evaluate Technical,
Past Performance (if applicable), Small Business Participation (if applicable), and
Cost/Price proposals.” AR 174 (RFP § M.4.1.f).

2. Proposals, Evaluations, and Contract Award

The Army received nine proposals. AR 11050. Following the resolution of two
pre-award bid protests, 8 the Army assessed the proposals and found them all “compliant
with the instructions provided in Sections L and M of the RFP” such that they “move[d]
to Step 1 of the evaluation process.” AR 10629 (Proposal Compliance Standings
Memorandum). The compliant proposals included Vanquish Worldwide, LLC, as well
as Amentum Services, Inc., and Vectrus Mission Solutions Corp. (“Vectrus”). AR 10629.
On December 9, 2020, the Army requested that all offerors “extend and validate proposals
through March 25, 2021.” AR 11060 (Source Selection Evaluation Board Report). Vectrus,
however, failed to do so and thus “was removed from the competitive range voluntarily
for not responding by the due date.” AR 11060. The Army, however, “decided to add

8Two GAO pre-award protests were filed prior to the final due date. See AR 11060 (Source
Selection Evaluation Board Report). In response to the first protest, the Army took corrective
action by amending the RFP. AR 11060. The GAO denied the other protest. See AR 11060.

7
Vectrus back into the competitive range as it was not expecting to be voluntarily
removed” and for other reasons. AR 11060. 9

Following Step 1, Amentum received an overall technical evaluation factor rating
of “Unacceptable” based on Amentum’s proposed “Staffing/Labor Mix.” AR 10630
(Amentum Technical Consensus Worksheets); AR 10840 (Amentum Technical
Evaluation – Final Report); AR 11063 (Source Selection Evaluation Board Report). That
overall technical rating was the result of an unacceptable rating for Amentum’s
“Staffing/Labor Mix.” See AR 10840, 10845–49. In contrast, Vanquish received an overall
technical factor rating of “Acceptable.” AR 10890 (Vanquish Technical Evaluation – Final
Report); AR 11063. Amentum, however, was the lowest total proposed priced offeror at
$253,830,413, while Vanquish was the second lowest at $258,798,380. AR 11051; AR
11061–62.

On June 2, 2021, the Source Selection Authority issued her Source Selection
Decision Document (“SSDD”), 10 AR 11049–55, selecting Vanquish as the “best overall
value in accordance with the [RFP’s] criteria . . . to satisfy the U.S. Government’s
requirement for Logistics Support Services at Fort Polk, LA,” AR 11055. Despite the
Source Selection Evaluation Board’s reference to a competitive range which variously
included or excluded Vectrus, see AR 11060, the SSDD makes no mention of any decision
to form a competitive range or whether the Army even considered conducting
discussions. The Army notified Vanquish of its award of the Task Order on June 8, 2021.
AR 11080 (Notice of Contract Award). On that same date, the Army notified Amentum
that it was unsuccessful and provided a written debriefing. AR 11148–50 (Unsuccessful
Offeror Notice /Debriefing – Amentum).

B. Amentum’s Bid Protest

Three disappointed offerors, including Amentum, filed post-award GAO protests,
all of which were denied or dismissed by September 30, 2021. See AR 20489–501 (GAO
Protest Decision – Amentum & VS2, LLC); AR 20506–08 (GAO Protest Decision – Data
Solutions & Technology, Inc.); see also Amentum Servs., Inc., B-418742.3, 2021 CPD ¶ 334,
2021 WL 4819074 (Comp. Gen. Sept. 30, 2021).

On October 15, 2021, Amentum filed a complaint in this Court against the United
States, pursuant to 28 U.S.C. § 1491(b)(1), challenging the Army’s contract award to

9 The Court could not locate documentary evidence of this competitive range determination in
the administrative record.
10The SSDD has two different dates on it — June 2, 2022, appears to be the correct one. AR 11055.
In addition, the Index to the Administrative Record, ECF No. 21-1, incorrectly lists the SSDD as
contained at Tab 39, AR 11060. That citation, however, is to the first page of the Source Selection
Evaluation Board Report (and not the SSDD).

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Vanquish. Complaint, Amentum Servs., Inc. v. United States, 2021 WL 5871734 (Fed. Cl.
2021) (No. 21-2029C), ECF No. 1. On October 18, 2021, Vanquish intervened in the case.
Motion to Intervene, Amentum Servs., Inc., 2021 WL 5871734 (No. 21-2029C), ECF No. 16.
On November 4, 2021, Amentum filed an amended complaint, asserting, inter alia, that:
(1) the “Army unreasonably deviated from the stated proposal instructions and
evaluation criteria set forth in the [S]olicitation by rejecting Amentum’s proposal as
technically unacceptable”; and (2) the Army should have conducted discussions,
pursuant to DFARS 215.306(c)(1), but failed to do so. Amended Complaint ¶¶ 131, 142,
Amentum Servs., Inc., 2021 WL 5871734 (No. 21-2029C), ECF No. 21. Amentum sought a
declaration “that the Army violated the requirements of DFARS 215.306(c)(1) by failing
to conduct discussions” and a “permanent injunction, requiring the Army to cancel its
improper award to Vanquish.” Id. at 32.

In response to Amentum’s amended complaint, the government, on December 3,
2021, filed an unopposed motion to stay the proceedings in that case and for a voluntary
remand to the Army, pursuant to Rule 52.2 of the Rules of the United States Court of
Federal Claims (“RCFC”). Motion to Remand, Amentum Servs., Inc., 2021 WL 5871734
(No. 21-2029C), ECF No. 26. In that motion, the government represented that the Army
“wishes to reconsider its award decision in light of the issues raised by Amentum’s
complaint.” Id. at 3. The government therefore requested, inter alia, that the Court
“remand this matter to [the Army] for reconsideration of the challenged decision and any
further administrative actions consistent with that reconsideration.” Id. Additionally,
the government asked the Court to “authorize . . . [the Army] to consider any further
information that the agency may gather during the remand in accordance with any
procedures that the agency may establish for that purpose.” Id. The government argued
that “[a] remand is in the interest of justice because it will provide the agency with an
opportunity to reconsider the award decision at issue in light of Amentum’s allegations
and any new information gathered during the proposed remand.” Id. at 2. Moreover, the
government asserted that “[d]uring the proposed remand, the agency potentially could
make a decision that could moot this action, in whole or in part, and may obviate the
need for further litigation in this Court.” Id. Finally, the government maintained that its
request was made “in good faith” and that “[w]hen, as in this case, ‘the agency’s concern
is substantial and legitimate, a remand is usually appropriate.’” Id. (quoting SKF
USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001)). The government’s motion
admitted no error and “[did] not commit to any particular course of corrective action.”
Amentum Servs., Inc., 2021 WL 5871734, at *1.

During a subsequent December 7, 2021, status conference to discuss the
government’s motion, “the government disclosed the existence of an internal
memorandum that addresses whether the agency planned to conduct discussions in the
procurement at issue.” Amentum Servs., Inc., 2021 WL 5871734, at *1. Based on that
memorandum, the government was “disinclined to defend the agency’s decision not to
conduct discussions.” Id. But, “[b]ecause the remedy for a violation of DFARS 215.306,

9
in any event, would likely [have been] an injunction requiring the agency to consider in
the first instance, under the proper standard, whether discussions should be conducted,”
the government urged this Court to “permit a remand . . . for that very purpose.” Id. The
government proposed that, on remand, “the agency will decide either (a) to conduct
discussions (and accept final proposal revisions), thus rendering the . . . dispute moot, or
(b) discussions are not warranted, but will memorialize its new decision for possible
judicial review, should Amentum seek to amend its complaint further to challenge such
a newly rendered decision.” Id.

Applying Keltner v. United States, 148 Fed. Cl. 552 (2020), and SKF USA Inc. v.
United States, 254 F.3d 1022 (Fed. Cir. 2001), this Court denied, in part, the government’s
motion for a voluntary remand. Amentum Servs., Inc., 2021 WL 5871734, at *2–3. In
particular, this Court explained:

[S]uch a remand — at least as proposed — would likely
“delay this case . . . and serve to only potentially improve the
government’s litigation posture.” The government’s mere
assertion that the agency desires another opportunity to
review its decision is insufficient to justify granting the broad
discretion the government seeks via its voluntary remand
motion. In that regard, while the need for finality at this
juncture perhaps is not overwhelming, the Court sees no
reason to order a remand and have this case remain on the
Court’s docket [pursuant to RCFC 52.2] while the agency
broadly reassesses its position, all while having an
unrestricted opportunity to effectively supplement the
administrative record — something the government could
not so easily accomplish during the litigation of this case.

Id. at *2 (second alteration in original) (quoting Keltner, 148 Fed. Cl. at 565).

The Court further found “that the scope of the government’s remand request [was]
inappropriate” in light of the government’s having “propose[d] broad discretion in its
remand request, including the right to take ‘any further administrative actions’ . . . and
the right to ‘consider any further information that the agency may gather during the remand
in accordance with any procedures that the agency may establish for that purpose.’” Amentum
Servs., Inc., 2021 WL 5871734, at *2 (quoting Motion to Remand at 3, Amentum Servs., Inc.,
2021 WL 5871734 (No. 21-2029C), ECF No. 26). The Court concluded that “[s]uch latitude
is neither appropriate nor just given the narrow issue the agency putatively seeks to
address — whether the agency should have conducted discussions in the first instance.”
Id.

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 In sum, this Court concluded that “the agency either stands by its award decision
or it does not, and the procurement decision at issue is either ripe for review or it is not”
but there was “no reason in this case [for the Court] to superintend a remand process by
adopting the government’s proposed voluntary remand order.” Amentum Servs., Inc.,
2021 WL 5871734, at *3. While the Court denied, in part, the government’s motion, and
“decline[d] to exercise its discretion to order a remand,” the Court imposed a “brief stay
of th[e] case for the government to reconsider its contract award decision — i.e., to
determine whether discussions [were] warranted . . . (pursuant to DFARS 215.306).” Id.
This Court noted that such an order represented “a fitting compromise, one to which no
party raised a substantial objection during the December 7, 2021, status conference,
when the Court proposed it.” Id. (emphasis added). The Court further ordered the
parties to file a joint status report (“JSR”), on or before the conclusion of the stay,
indicating whether:

1. The government has decided to rescind the disputed
contract award for the purpose of engaging in discussions
(and accepting final proposal revisions), thereby rendering
th[e] case moot;
2. The government has decided not to rescind the . . . contract
award, in which case the parties shall propose a schedule
for further proceedings; or
3. The government proposes to rescind the disputed award
decision for yet other reasons, in which case the parties shall
provide their respective positions as to how the case should
proceed, if at all.

Amentum Servs., Inc., 2021 WL 5871734, at *3 (first emphasis added) (footnotes omitted).

On January 24, 2022, the parties filed a JSR, selecting the Court’s first option. Joint
Status Report, Amentum Servs., Inc., 2021 WL 5871734 (No. 21-2029C), ECF No. 30. The
parties, including Vanquish, jointly represented as follows:

The [Army] has decided to rescind the disputed contract
award to Vanquish, establish a competitive range, engage in
discussions, and accept proposal revisions. The agency’s
decision renders Amentum’s protest moot. The parties intend
to file a joint stipulation of dismissal without prejudice with
each party to bear its own costs and fees.

Id. at 1. On January 28, 2022, the parties filed a joint stipulation of dismissal without
prejudice, Joint Stipulation of Dismissal, Amentum Servs., Inc., 2021 WL 5871734 (No. 21-
2029C), ECF No. 31, and the Court, accordingly, dismissed the case that same day.

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 C. The Army’s Post-Remand Discussions Process

Following the dismissal of Amentum’s protest, the government implemented the
corrective action by establishing a competitive range. AR 20530 (Competitive Range
Determination – Final). The Army decided, “[a]fter evaluating the original compliance
review performed on each proposal,” that seven (7) offerors “will be within the
competitive range during discussions.” AR 20532–33 (noting that “[t]he Strict
Compliance memorandum for the record, dated 10 August 2020, provides details of the
original compliance review”). The Army included both Amentum and Vanquish in the
competitive range. AR 20533.

On April 27, 2022, the Army transmitted letters to offerors regarding discussions.
AR 20667–78. The letter to Vanquish, for example, advised that “[t]he Government
evaluated your proposal dated 22 June 2020 and you are hereby afforded the opportunity
to update your proposal.” AR 20675. Because Vanquish “was previously determined to
be Technically Acceptable,” Vanquish did not receive any evaluation notices (“ENs”)
critiquing its proposal for weaknesses or deficiencies. AR 20675. Amentum, however,
was instructed to review and address ENs — to “correct deficiencies” — in a revised
proposal. AR 20667; see also AR 20679–81 (Amentum ENs). Offerors were permitted to
make changes “to the[ir] original Cost/Price Factor” proposal. AR 20676.

On or about June 2, 2022, the Army issued the first-round answers to offeror
questions regarding the discussions process (“Q&As”). AR 20540–628. Question number
four asked: “Will the Government please confirm that in accordance with FAR 15.306
combined with Solicitation Section M.4.4 provisions, only Step-2 technically acceptable
offerors were included in the competitive range and these Discussions?” AR 20616. The
Army responded in the negative: “The Government is evaluating everyone that was
evaluated for technical whether or not it was determined acceptable or unacceptable.”
AR 20616. In that regard, the Q&A document specifically informed offerors that “[i]t’s
possible [that an] offeror did not move on to step 2 or 3 and therefore parts of the proposal
may not have been evaluated.” AR 20616 (Answer to Question No. 19). The Army
contemplated requesting final provision revisions (“FPRs”) prior to the close of
discussions. AR 20616 (Answer to Question No. 11).

While the Q&A document set a deadline of June 8, 2022, for revised proposals, AR
20616 (Answer to Question No. 7), the Army’s transmittal email specified the deadline as
June 17, 2022. See, e.g., AR 20624–25. A second, subsequent Q&A document transmitted
to offerors on or about June 8, 2022, see, e.g., AR 20629, clarified that EN revisions would
be due “COB 24 June 2022” with FPRs “due at a later date not yet identified.” AR 20630
(Q&A Round 2). On June 21, 2022, the Army issued a third Q&A document. AR 20642–
66. The Army maintained the previous deadline for EN revisions and set a deadline for
FPRs, instructing as follows: “EN revisions are due by COB 24 June 2022” and “[f]inal

12
proposal revisions are due by COB 22 July 2022.” AR 20642. The offerors responded to
ENs and submitted revised proposals. AR 20691–24210.

On August 3, 2022, the Army notified offerors “that the Government is closing
discussions and requesting” FPRs. AR 24237 (Amentum Close Discussion Letter); see also
AR 24245 (Vanquish Close Discussion Letter). The Army notified Amentum that it did
not have to submit a revised technical proposal because “[t]he Government considers the
Technical ENs resolved in full.” AR 24237; see also AR 24221 (Amentum EN Responses
Assessment) (“EVALUATOR ASSESSMENT OF OFFEROR RESPONSE: Updates have
been verified and EN response is acceptable.”). The Army set the new date for FPRs as
Monday, August 15, 2022. AR 24237.

On August 12, 2022, however, the Army notified offerors that the Army is “aware
that there are issues remaining that will require clarification” and thus, “[t]he due date
for [FPRs] is being extended and will no longer be due on 15 August 2022,” with a
“revised proposal submission date [to] be provided at a later time.” AR 24878 (Email to
Contractors Regarding Updated FPR Date). On September 1, 2022, the Army received
the offerors’ FPRs. See ECF No. 26 at 6 (“FPRs were not due at the filing of this protest,
but were since received [by the Army] on September 1, 2022.”); ECF No. 34 at 66
(government confirming that FRPs “have been submitted” to the Army).

D. Vanquish’s Agency Protests

During the above-described discussions process, on May 23, 2022 — well in
advance of the due date for EN responses, proposal updates, or FPRs — Vanquish filed
a timely pre-award protest with the Army. AR 24250. Vanquish asserted that “if the
Army has conducted discussions with offerors whose proposals were [originally] not
determined to be technically acceptable, then the Army has violated the terms of the
Solicitation.” AR 24251. Vanquish further argued that “[w]hile the Army has the
discretion to conduct corrective action, it does not have the discretion to deviate from the
terms of the Solicitation.” AR 24251.

On June 10, 2022, Vanquish filed yet another agency-level protest, AR 24384, “[t]he
purpose [of which] is to ensure that the Army’s corrective action is consistent” with the
JSR filed in Amentum’s earlier protest before this Court, AR 24385 (“Recent
communications from the Army demonstrate that it is engaging in corrective action that
is different than the corrective action described in the JSR.”). More specifically, based on
the Army’s June 2, 2022, Q&A document, Vanquish asserted that “[t]he Army’s response
to Question 4 confirms that the Army is engaged in discussions with offerors whose
proposals were determined to be technically unacceptable.” AR 24393. Vanquish
contended that including such offerors in the discussions process “violates Section
M[.]4.4.2 of the Solicitation.” AR 24393.

13
 On June 22, 2022, while the first two-agency level protests pending before the
Army, Vanquish filed a third, primarily reiterating variations on the arguments advanced
in its first two agency-level protests. AR 24514; AR 24521 (“[I]n establishing the
competitive range and engaging in discussions with technically unacceptable offerors,
the Army is violating the terms of the Solicitation and the requirements of the FAR.”).

On July 25, 2022, the Army denied all three of Vanquish’s protests. AR 24834–46.11
Undeterred, on July 28, 2022, Vanquish filed a request for reconsideration with the Army,
AR 25062–81, which the Army summarily dismissed on August 25, 2022, AR 25082–83.

II. PROCEDURAL HISTORY

On August 10, 2022, Vanquish filed an action pursuant to 28 U.S.C. § 1491(b)(1),
“challeng[ing] the Army’s implementation of corrective action.” ECF No. 1 (“Compl.”)
¶¶ 1, 7. Vanquish asserts that “[b]ut for the Army’s unlawful and arbitrary and
capricious conduct in the corrective action, Vanquish would be selected for award of the
contract, and is therefore an interested party with standing to bring an action under 28
U.S.C. § 1491(b)(1).” Compl. ¶ 9. Vanquish’s complaint before this Court asserts two
counts with the same central theme: the Army improperly established a competitive
range and conducted “discussions with technically unacceptable offerors,” Compl. ¶ 53,
including Amentum, in violation of both FAR 15.306, Compl. ¶¶ 49–55 (Count I), and the
Solicitation, Compl. ¶¶ 56–63 (Count II). Vanquish’s complaint requested a preliminary
injunction and asserts that Vanquish is entitled to declaratory relief and a “permanent
injunction, requiring the Army to follow the FAR, the DFARS, and all of the terms of its
own Solicitation including the terms relating to the formation of a competitive range and
discussions with offerors.” Compl. at 16 (“Prayer for Relief”).

On August 15, 2022, Amentum filed a motion to intervene, ECF No. 8, which the
Court granted, EFC No. 10. That same day, the Court issued a status report order that
memorialized the government’s voluntary stay of the procurement to avoid the need for
the parties to litigate, and the Court to decide, Vanquish’s request for a preliminary
injunction. ECF No. 11. On August 26, 2022, the government filed the administrative
record, ECF No. 21, which was subsequently amended on September 8, 2022, ECF No. 24.

On September 12, 2022, the parties filed their respective motions for judgment on
the administrative record (“MJAR”). See ECF No. 25 (“Pl. MJAR”); ECF No. 26; ECF No.
27 (“Intv. MJAR”). On September 21, 2022, the parties filed timely response briefs. See

11Separate from Vanquish’s protests, Amentum, on August 11, 2022, filed an agency-level protest
with the Army, challenging an alleged “ambiguity that exists between the [S]olicitation . . . and
conflicting statements from the Army regarding which versions of the relevant Collection
Bargaining Agreements and Wage Determinations offerors should utilize.” AR 24849. There is
no evidence in the record that the Army has decided or otherwise resolved that protest.

14
ECF No. 30; ECF No. 31 (“Pl. Resp.”); ECF No. 32. On September 29, 2022, the Court held
oral argument. ECF No. 34 (“Tr.”).

III. JURISDICTION AND STANDING

The Tucker Act provides that an “interested party” may file an “action” in this
Court “objecting [1] to a solicitation by a Federal agency for bids or proposals for a
proposed contract or [2] to a proposed award or [3] the award of a contract or [4] any
alleged violation of statute or regulation in connection with a procurement or a proposed
procurement.” 28 U.S.C. § 1491(b)(1); see also Aero Spray, Inc. v. United States, 156 Fed. Cl.
548, 559 & n.18 (2021) (“Section 1491(b) actions are typically referred to as ‘bid
protests.’”). 12

“Standing is an integral part of jurisdiction.” Seventh Dimension, LLC v. United
States, 160 Fed. Cl. 1, 14 (2022) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).
“The party invoking federal jurisdiction bears the burden of establishing standing.”
CliniComp Int’l, Inc. v. United States, 904 F.3d 1353, 1358 (Fed. Cir. 2018) (citing Myers
Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002)). “Where
a plaintiff lacks standing, its case must be dismissed pursuant to RCFC 12(b)(1).” Aero
Spray, Inc., 156 Fed. Cl. at 556 (citing Media Techs. Licensing, LLC v. Upper Deck Co., 334
F.3d 1366, 1370 (Fed. Cir. 2003)).

To establish standing in a § 1491(b) action, a plaintiff must demonstrate that it is
an “interested party.” Id. at 559 (“[T]he Tucker Act, as amended by the Administrative
Dispute Resolution Act of 1996, . . . defines not only this Court’s jurisdiction over what
actions may be brought against the government, but also who has standing to pursue
them.”). In a post-award protest action, an “interested party” is “[1] an actual or
prospective bidder or offeror [2] whose direct economic interest would be affected by the
award of the contract or by failure to award the contract.” Am. Fed’n of Gov’t Emps., AFL-
CIO v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001) (quoting 31 U.S.C. § 3551(2)). In
a pre-award protest action — typically involving a challenge to the terms of a solicitation
— a plaintiff must allege facts that “demonstrate[] a ‘non-trivial competitive injury which
can be addressed by judicial relief.’” Weeks Marine, Inc. v. United States, 575 F.3d 1352,

12 Cf. Tolliver Grp., Inc. v. United States, 151 Fed. Cl. 70, 96–97 (2020) (“[A]lthough ‘[the
Administrative Dispute Resolution Act] covers primarily pre- and post-award bid protests,’ the
Federal Circuit in RAMCOR explicitly reversed this Court’s determination ‘that a [plaintiff] could
only invoke § 1491(b)(1) jurisdiction by including in its action an attack on the merits of the
underlying contract award’ or the solicitation.” (third alteration in original) (quoting RAMCOR
Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999))).

15
1362 (Fed. Cir. 2009) (quoting WinStar Commc’ns, Inc. v. United States, 41 Fed. Cl. 748, 763
(1998)). 13

Under either “interested party” test, “the question of prejudice goes directly to the
question of standing,” and thus “the prejudice issue must be reached before addressing
the merits.” Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.
2003); see also Myers, 275 F.3d at 1370 (“[P]rejudice (or injury) is a necessary element of
standing.”). Also, under either test, a plaintiff must allege facts — not mere conclusory
assertions of law — demonstrating prejudice. See Blue Origin Fed’n, LLC v. United States,
157 Fed. Cl. 74, 89 (2021) (“[T]he court must decide whether those alleged facts show the
protestor was prejudiced by the alleged errors.” (citing Statistica, Inc. v. Christopher, 102
F.3d 1577, 1581 (Fed. Cir. 1996))). The Court assumes the facts alleged in a plaintiff’s
complaint are true for the purposes of evaluating standing but not for the purpose of
resolving whether a plaintiff has demonstrated prejudice on the merits. See id. at 89 (“For
the limited purpose of determining whether it has standing, a protestor’s allegations are
assumed to be true.” (citing Am. Relocation Connections, L.L.C. v. United States, 789 F. App’x
221, 226 (Fed. Cir. 2019))); Am. Relocation Connections, 789 F. App’x at 226 (“For standing,
we presume the party bringing a bid protest will succeed on the merits of its claim and
ask whether it has alleged an injury (or prejudice) caused by the procuring agency’s
actions.”); Yang Enterprises, Inc. v. United States, 156 Fed. Cl. 435, 444 (2021) (“The Court
assumes well-pled allegations of error to be true for purposes of the standing inquiry.”).14

Amentum, but not the government, challenges Vanquish’s standing on the
grounds that Vanquish has failed to allege facts demonstrating prejudice. See Intv. MJAR
at 14–16. In any event, the Court has an independent duty to ascertain whether it
possesses jurisdiction to decide Vanquish’s claims and whether it has standing to pursue
them. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (“The federal courts are
under an independent obligation to examine their own jurisdiction, and standing ‘is
perhaps the most important of [the jurisdictional] doctrines.’” (alteration in original)
(quoting Allen v. Wright, 468 U.S. 737, 750 (1984))); see also RCFC 12(h)(3).

13Aero Spray, Inc., 156 Fed. Cl. at 562 (explaining that “[t]he Federal Circuit . . . modified that post-
award standing test for pre-award cases” because “applying the [post-award] ‘substantial chance’
test makes little or even no sense” where “an agency is in the early stages of the procurement
process and potential offerors have not even submitted proposals yet”).
14 To succeed on the merits, a plaintiff must prove its allegations. See L-3 Commc’ns Corp. v. United
States, 99 Fed. Cl. 283, 289 (2011) (“[T]he prejudice determination for purposes of standing
assumes all non-frivolous allegations to be true, whereas the post-merits prejudice determination
is based only on those allegations which have been proven true.”).

16
 Having considered Amentum’s arguments and Vanquish’s complaint, the Court
concludes that Vanquish, by a hair, has alleged sufficient facts for a narrow ground of
protest. 15

Vanquish’s allegations of prejudice are limited to a single paragraph in its
complaint under a section entitled “Jurisdiction and Standing”:

[1] The Army previously awarded a contract to Vanquish
under this procurement prior to its current corrective action.
[2] Vanquish should not be forced to compete in a
procurement where an agency’s corrective action is unlawful
and violates the Solicitation. [3] But for the Army’s unlawful
and arbitrary and capricious conduct in the corrective action,
Vanquish would be selected for award of the contract, and is
therefore an interested party with standing to bring an action
under 28 U.S.C. § 1491(b)(1)[.]

Compl. ¶ 9. The first sentence in that paragraph is true and undisputed. The Court reads
the second sentence very generously as asserting a harm from having to compete for a
contract twice in violation of the Solicitation. Cf. Seventh Dimension, LLC, 160 Fed. Cl. at
35 (“[P]laintiff should not be made, quite unfairly, to compete twice for a procurement it
has all but won already . . . .”). As to that assertion, the Court agrees that Vanquish
adequately alleges prejudice pursuant to the pre-award “interested party” test, which the
Court assumes, but does not definitively determine, applies here. 16

As to the third sentence of that above-quoted paragraph, however, Vanquish
alleges zero facts demonstrating that “[b]ut for the Army’s unlawful . . . conduct[,] . . .
Vanquish would be selected for award of the contract.” Compl. ¶ 9. Conclusory
assertions of prejudice are not entitled to any weight, even at this stage. See Perry v. United
States, 149 Fed. Cl. 1, 33 (2020) (“[T]he complete lack of any factual allegations contained
in [the] Complaint to support an illegal exaction claim precludes this Court from

15The fact that a plaintiff may “successfully allege[] an injury (or prejudice) for standing
purposes” — because if the plaintiff “succeeded on the merits . . . it would have a ‘greater than
an insubstantial chance of securing the contract’” — does not excuse a plaintiff from proving
prejudice on the merits based on the administrative record. Am. Relocation Connections, 789 F.
App’x at 227 (quoting Info. Tech., 316 F.3d at 1319).
16 Vanquish, in its MJAR, argues that “the Army is forcing Vanquish to recompete for a contract
on an unlevel playing field, where the ground rules have been changed.” Pl. MJAR at 23.
Vanquish, however, does not allege or prove facts demonstrating either (1) an unlevel playing
field, or (2) that the ground rules have been changed. Nor does Vanquish establish how any such
changes impact Vanquish negatively or unfairly.

17
exercising subject-matter jurisdiction.”), aff’d, 2021 WL 2935075 (Fed. Cir. July 13, 2021).17
Moreover, that allegation of prejudice cannot possibly be ripe because (1) FPRs already
have been submitted, and (2) Vanquish may still win the contract award as a result of the
ongoing procurement process. See Coal. for Common Sense in Gov’t Procurement v. Sec’y of
Veterans Affs., 464 F.3d 1306, 1315–16 (Fed. Cir. 2006) (“It is appropriate for us to consider
ripeness even though it is not raised by the parties because ripeness is a jurisdictional
consideration that the court may address sua sponte.”). Accordingly, the Court grants,
in part, Amentum’s motion to dismiss pursuant RCFC 12(b)(1), with regard to the second
category of prejudice Vanquish asserts.

In any event, the Court rejects Vanquish’s entire protest as meritless.

IV. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 1491(b)(4), this Court applies the standard of review
contained in the Administrative Procedure Act (APA) § 10(e), 5 U.S.C. § 706. Nat’l Gov’t
Servs., Inc. v. United States, 923 F.3d 977, 981 (Fed. Cir. 2019). In particular, in accordance
with the APA, this Court reviews an agency’s procurement decisions to determine
whether they are “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).

“In applying the APA standard of review, this Court affords considerable
deference to an agency’s procurement decisions.” IAP Worldwide Servs., Inc. v. United
States, 159 Fed. Cl. 265, 286 (2022) (citing Advanced Data Concepts, Inc. v. United States, 216
F.3d 1054, 1058 (Fed. Cir. 2000)). In reviewing an agency’s procurement decision, the
Court “determine[s] whether ‘the contracting agency provided a coherent and reasonable
explanation of its exercise of discretion.’” Impresa Construzioni Geom. Domenico Garufi v.
United States, 238 F.3d 1324, 1332–33 (Fed. Cir. 2001) (quoting Latecoere Int’l, Inc. v. U.S.
Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)). A plaintiff succeeds on the merits where
it demonstrates, based on a trial on the administrative record, 18 that either: “(1) the
[agency]’s decision lacked a rational basis; or (2) the procurement procedure involved a
violation of regulation or procedure.” Id. at 1332.

17The “[d]etermination of jurisdiction starts with the complaint, which must be well-pleaded in
that it must state the necessary elements of the plaintiff’s claim.” Holley v. United States, 124 F.3d
1462, 1465 (Fed. Cir. 1997). “Conclusory allegations of law and unwarranted inferences of fact do
not suffice to support a claim.” Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998). Of
course, “mere legal conclusions employing the right words to create a putative jurisdictional hook
are pretextual and cannot create jurisdiction where none exists.” Wickramaratna v. United States,
2022 WL 1124872, at *5 (Fed. Cl. Apr. 15, 2022).
18 See Bannum, 404 F.3d at 1354–56.

18
V. DISCUSSION

A. Vanquish Is Bound by Its Prior Agreement with the Parties During
Amentum’s Bid Protest Action

Vanquish’s challenge to the Army’s conduct here boils down to the assertion that
Vanquish “should not be forced to compete with Amentum and other offerors whose
proposals are technically unacceptable and . . . could not properly be placed in to [sic] the
competitive range under the Solicitation as published to all offerors more than two years
ago.” Pl. MJAR at 24. But Vanquish should have thought about all of this before it signed-
on to the JSR ultimately resulting in the dismissal of Amentum’s protest. Here is the
bottom line up front: the government is doing exactly what the parties agreed to;
Vanquish cannot now ask this Court to tell the government to reverse course.

As noted above, the parties, in response to Amentum’s earlier protest, jointly
represented to the Court as follows:

The [Army] has decided to rescind the disputed contract
award to Vanquish, establish a competitive range, engage in
discussions, and accept proposal revisions. The agency’s
decision renders Amentum’s protest moot. The parties intend to
file a joint stipulation of dismissal without prejudice with
each party to bear its own costs and fees.

Joint Status Report at 1, Amentum Servs., Inc., 2021 WL 5871734 (No. 21-2029C), ECF No.
30 (emphasis added).

Given that the parties agreed that Army’s corrective action would “render[]
Amentum’s protest moot,” id., and that Amentum’s complaint challenged not only the
Army’s general failure to conduct discussions but also the Army’s technical evaluation
of Amentum’s proposal, Amended Complaint ¶¶ 121–132, Amentum Servs., Inc., 2021 WL
5871734 (No. 21-2029C), ECF No. 21, the Court’s ineluctable conclusion is that the parties
must have agreed that Amentum would be included in the resulting discussions.

An easy counterfactual demonstrates the Court’s reasoning is correct. Imagine if
the Army’s corrective action did not include permitting Amentum to revise its proposal
in a FPR via discussions. According to Vanquish, Amentum agreed to a process that
cured nothing but rather left Amentum ineligible for award. 19 The absurdity of

19See Tr. 5:13–22 (Vanquish counsel agreeing that this Court should “read the joint status report”
as requiring the government to “establish a competitive range that excludes Amentum”); Tr. 9:14–
18 (“THE COURT: Wait. You want me to read [the JSR as] Amentum[’s] agreeing to a joint status
report that said the Government is going to go back [to conduct discussions] but exclude

19
Vanquish’s position is striking: Amentum gained literally nothing by agreeing to
corrective action in the JSR and the subsequent joint stipulation of dismissal. More
significantly still, such an interpretation would mean that the corrective action did not
moot Amentum’s protest — as it sought to challenge its technical rating even in the
absence of discussions. But we know that all the parties, and this Court, previously agreed
that the agreed-upon corrective action did render Amentum’s complaint moot.20 Another
way to think about the absurdity is this: were Amentum excluded from the competitive
range (and hence discussions) during corrective action, we would be right back where
we started — having to resolve Amentum’s complaint. Vanquish may now regret having
agreed to the rescission of its award and to the reopening of the competition, but that is
all water under the bridge.

In the absence of a time machine, Vanquish is out of luck; Vanquish is bound by
its agreement with the government and Amentum. “[W]here a party assumes a certain
position in a legal proceeding, and succeeds in maintaining that position, he may not
thereafter, simply because his interests have changed, assume a contrary position,
especially if it be to the prejudice of the party who has acquiesced in the position formerly
taken by him.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (alteration in original)
(quoting Davis v. Wakelee, 156 U.S. 680, 689 (1895)); see also Data Gen. Corp. v. Johnson, 78
F.3d 1556, 1565 (Fed. Cir. 1996) (“The doctrine of judicial estoppel is that where a party
successfully urges a particular position in a legal proceeding, it is estopped from taking
a contrary position in a subsequent proceeding where its interests have changed.”); City
of Cleveland v. Ameriquest Mort. Sec., Inc., 615 F.3d 496, 501 (6th Cir. 2010) (finding that the
plaintiff-appellant “waived its right to pursue [an] issue on appeal” where a joint motion
contained language that was “a clear and unequivocal waiver of [the plaintiff-appellant]’s
right to further pursue its motion to remand on appeal, and [the plaintiff-appellant]
neither contest[ed] the validity of the [j]oint [m]otion nor suggest[ed] an alternative
reading of th[e] clause”); Damato v. Sullivan, 945 F.2d 982, 987 n.3 (7th Cir. 1991) (“[S]ince
the [Defendant] acquiesced in the magistrate’s recommendation for remand, the issue of
whether it was within the district court’s authority to remand the case is not before us.”);
Out of Line Sports, Inc. v. Rollerblade, Inc., 213 F.3d 500, 502–03 (10th Cir. 2000) (joint motion
to release funds to satisfy judgment moots appeal of that judgment); Reeves v. Nicholson,
21 Vet. App. 66 (2006) (“[T]he appellant’s opening brief fails to acknowledge the prior
joint motion for remand, much less make an argument that there is a reason that it should
not be considered binding as to the facts agreed upon by the parties.”); Massicci v. Peake,

Amentum? [VANQUISH COUNSEL]: Well, they did agree to that . . . .”); Tr. 12:18–21 (Vanquish
counsel arguing that the JSR should be read as “establish[ing] a competitive range that follows
the solicitation, and the effect of that is to exclude Amentum”).
20Indeed, Vanquish agreed with the Court during oral argument that, under Vanquish’s strained
interpretation of the corrective action described in the JSR, only the discussions issue involving
DFARS 215.306 would have been solved “but not the other count” regarding Amentum’s
technical acceptability. Tr. 20:13–25.

20
2008 WL 4963401, at *3 (Vet. App. Mar. 17, 2008) (noting that “the parties’ joint motion
for a remand . . . represent[s] an agreement by the parties” such that the appellant, “who
was represented by counsel in crafting the agreement, cannot now disavow the
agreement for which he bargained”).

Vanquish, to support its strained interpretation of the parties’ agreement (as
reflected in the January 24, 2022, JSR at issue), points to email communications among
the parties that predate the filing of that JSR. AR 24926–69. In particular, Vanquish relies
upon draft JSR language that Amentum proposed that would have expressly committed
the government to including Amentum in the competitive range for discussions. Pl.
MJAR at 8 (citing AR 24933–37); Pl. Resp. at 11 (citing AR 24935). Counsel of record for
the government ultimately rejected Amentum’s proposed language; the Court knows this
because the next draft lacks Amentum’s language. AR 24938–46. That said, the
government responded to Amentum’s proposed language only in a private email to
Amentum’s counsel, and thus Vanquish could not have relied upon it (even assuming
there was some clear inference that could be drawn from that email). See AR 24938.

Thereafter, Amentum suggested yet further revisions, AR 24941–46, which the
government accepted, AR 24947, and Vanquish approved as well, AR 24956 (“This
revised version is agreeable to the intervenor.”). This Court, however, cannot, by
negative implication, infer from the government’s rejection of Amentum’s proposed
language that somehow the parties all understood and agreed that Amentum would not
be included in the competitive range. Such a speculative conclusion is not justified. For
all the Court knows, the government simply preferred brevity in the JSR — a worthy goal
the undersigned admittedly often fails to meet.

More significantly, the administrative record all but demonstrates that Vanquish’s
position is nothing more than a creative post hoc interpretation crafted by counsel in the
heat of litigation and never reflected Vanquish’s actual, contemporaneous view of the
corrective action when the parties first discussed it. In that regard, Vanquish reviewed
the government’s initial draft JSR, which contained a description of the putative
corrective action that was even more terse that what the parties ultimately adopted. AR
24927–31. Vanquish responded to the government’s proposed JSR in an email that
conclusively shows that Vanquish understood that the Army intended to do precisely
what Vanquish now challenges:

We assume the agency’s corrective action will extend to
Vanquish and will allow for Vanquish to submit a revised
proposal. Please confirm that. We also assume the agency’s
discussion will include Amentum and that Amentum also will be
permitted to submit a revised proposal. Will any other offerors be
included in the agency’s proposed corrective action? If so,

21
 will that be limited only to those that were in the competitive
range? Please let us know.

AR 24931 (emphasis added). Indeed, the only real question Vanquish had was whether
“any other offerors [would] be included in the agency’s proposed corrective action.” AR
24931. Accordingly, Vanquish understood quite well that Amentum’s prior protest could
only be rendered moot by including Amentum in the corrective action. Vanquish could
have made its position clear (or opposed the corrective action) but failed to do so.21

Permitting Vanquish to unravel its previous agreement with the parties (which
resolved Amentum’s protest) would be remarkably prejudicial to both the government
and Amentum for obvious reasons. Not the least of these reasons are (1) the passage of
time and the government’s need to complete this procurement, (2) the government’s and
the other offerors’ investments in the discussions process and the creation and
submission of their respective FPRs, and (3) the fact that accepting Vanquish’s position
here would mean all the parties are back to square one regarding Amentum’s protest
action that the parties previously resolved (with the Court’s approval).

B. The Government Did Not Violate FAR 15.306 or the Terms of the Solicitation

In addition, the Court holds the government’s implementation of corrective action
is consistent with the FAR and the Solicitation. FAR 15.306(c) governs the formation of
the competitive range prior to conducting discussions and does not prohibit the
government from engaging in discussions with technically unacceptable offerors, as this
Court previously has explained:

[T]he entire point of discussions is to permit offerors “[a]t a
minimum” to address “deficiencies” and “significant
weaknesses” (amongst other information not relevant here).
FAR 15.306(d)(3); see also Aviation Ground Equip. Corp.,
B-417711.2, 2021 CPD ¶ 183, 2021 WL 2109102, at *8 (Comp.
Gen. May 3, 2021) (“The FAR makes clear one of the purposes
of discussions is to address deficiencies and significant
weaknesses in proposals.” (citing FAR 15.306(d)(3))). The
FAR further “encourage[s]” the contracting officer “to discuss
other aspects of the offeror’s proposal that could, in the
opinion of the contracting officer, be altered or explained to
enhance materially the proposal’s potential for award.” FAR

21During oral argument, the Court pointed out that, according to Vanquish’s argument here,
Vanquish in its contemporaneous correspondence with the government should have said “by the
way, Amentum should not be included.” Tr. 31:2–3. Counsel for Vanquish weakly responded
only that “I wish we had.” Tr. 31:4.

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 15.306(d)(3). Thus, the FAR expressly distinguishes between,
on the one hand, “deficiencies” and “significant weaknesses”
— both of which “the contracting officer must . . . discuss”
with offerors — and, on the other hand, “other aspects” of a
proposal that may potentially impact the chance for award. Id.
(emphasis added).

IAP Worldwide Servs., Inc., 159 Fed. Cl. at 311 (second and third alterations in original).

Accordingly, “the government has the discretion to include even technically
unacceptable proposals in the competitive range.” Id. at 318 (citing Aviation Ground
Equip., 2021 WL 2109102, at *8 (“[T]he determination whether a proposal should be
included [in the competitive range] is principally a matter within the sound judgment of
the procuring agency. While exclusion of technically unacceptable proposals is
permissible, it is not required.” (citations omitted)); see also Dell Fed. Sys., L.P. v. United
States, 906 F.3d 982, 996 (Fed. Cir. 2018) (explaining that offerors “deemed unacceptable”
may improve their competitive position via discussions); Info. Tech., 316 F.3d at 1319
(holding that, to establish prejudice, a plaintiff must only demonstrate that its “chance of
securing the award must not have been insubstantial,” and that a plaintiff demonstrates
prejudice where the agency “improperly failed to conduct ‘discussions’ . . . [and] if it had,
[the plaintiff] would have been able to cure deficiencies in its bid”).

Moreover, even putting aside the parties’ agreement resolving Amentum’s
protest, the Solicitation does not preclude the government’s including Amentum in the
competitive range. To the contrary, the Solicitation contemplated discussions as part of
Step 1 of the evaluation process. See AR 173 (RFP § M.4.1). Indeed, as part of Step 1, the
Solicitation provides that “the Government reserves the right to conduct discussions [in
accordance with] [§] M.4.4 . . . if the Contracting Officer determines that discussions
would be advantageous to the Government.” AR 173 (describing “STEP 1: Technical
Factor Evaluations”). In turn, nothing in Section M.4.4 requires the government to
eliminate Amentum from the competitive range or requires the government to limit the
competitive range only to technically acceptable proposals. In that regard, Section
M.4.4.1 provides that “[o]nly Offerors determined Technically Acceptable will remain in
[a] subsequent competitive range and proceed to [Step 2].” AR 173 (emphasis added).
That provision necessarily implies that there is an earlier competitive range
determination for the purposes of discussions within Step 1.

Vanquish has an entirely different reading of the Solicitation. According to
Vanquish, Section M.4.4.1’s references to “discussions” and a “subsequent competitive
range determination” are not being used as those terms of art are defined in the FAR but
rather simply refer to the agency’s down-select process from Step 1 to Step 2. Pl. MJAR
at 15–16; Tr. 36:17–22. Thus, Vanquish contends that discussions may only take place as
part of Step 2. Pl. MJAR at 2, 5, 16. But the Court cannot ignore the plain meaning of

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those terms of art, particularly given the RFP’s reference to discussions in Step 1 (RFP
§ M.4.1), and to FAR 15.306 in Section M.4.4.1. See AR 173. Also, if the Solicitation really
contemplated discussions only as part of Step 2, as Vanquish contends, then Section
M.4.4.1 would be rendered superfluous because Section M.4.4.2 itself addresses Step 2
discussions. This Court should ordinarily read solicitations as a whole to avoid rendering
some provisions meaningless. See Banknote Corp. of Am. v. United States, 365 F.3d 1345,
1353 (Fed. Cir. 2004) (“[W]e must consider the solicitation as a whole, interpreting it in a
manner that harmonizes and gives reasonable meaning to all of its provisions.”). In any
event, the Solicitation expressly provided the government with the flexibility to dispense
entirely with the two-step down-select process. See AR 174 (RFP § M.4.1.f) (“The
Government reserves the right to simultaneously evaluate Technical, Past Performance
(if applicable), Small Business Participation (if applicable), and Cost/Price proposals.”).22
Because the government could disregard the multi-step evaluation process, there is no
necessary distinction between Step 1 and Step 2, and the government was free to form a
competitive range and conduct discussions at any point during the evaluation process.

VI. CONCLUSION

For the above reasons, the Court DENIES Plaintiff’s motion for judgment on the
administrative record and GRANTS Defendant’s and Defendant-Intervenor’s respective
motions for judgment on the administrative record. Accordingly, the Clerk of the Court
is directed to enter JUDGMENT for Defendant and Defendant-Intervenor, terminating
this case.

IT IS SO ORDERED.

s/Matthew H. Solomson
Matthew H. Solomson
Judge

22 Vanquish conceded this point during oral argument. See Tr. 10:22–24 (“[T]here’s a reserved
right in the RFP that the Government can review all of the evaluation factors at the same time.”).

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