Apt Research, Inc. v. United States

In the Cited States Court of Federal Claims

BID PROTEST
No. 21-1102C
Filed Under Seal: June 22, 2021
Reissued: July 14, 2021°

APT RESEARCH, INC.,

Plaintiff,
Post-Award Bid Protest; Judgment Upon
the Administrative Record, RCFC 52.1;
Best Value.

v.
THE UNITED STATES,
Defendant,

v.

ARES TECHNICAL SERVICES
CORPORATION,

Defendant-Intervenor.

ee ee

W. Brad English, Counsel of Record, Jon D. Levin, Of Counsel. Emily J. Chancey, Of
Counsel, J. Dale Gipson, Of Counsel, Maynard, Cooper & Gale, P.C., Huntsville, AL, for
plaintiff.

Michael D. Austin, Trial Attorney, Deborah A. Bynum, Assistant Director, Martin F.
Hockey, Jr., Acting Director, Brian M. Boynton, Acting Assistant Attorney General, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, Cpt.
Carlos Pedraza, Of Counsel, United States Army, for defendant.

Daniel R. Forman, Counsel of Record, James G. Peyster, Of Counsel, Crowell &
Moring, LLP, Washington, DC, for defendant-intervenor.

“ This Memorandum Opinion and Order was originally filed under seal on June 22, 2021. ECF No. 47.
The parties were given an opportunity to advise the Court of their views with respect to what information,
if any, should be redacted from the Memorandum Opinion and Order. On July 14, 2021, plaintiff filed a
joint status report on behalf of the parties indicating that no redactions are necessary. ECF No. 49. And
so, the Court is reissuing its Memorandum Opinion and Order, dated July 14, 2021, as the public opinion.
MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge
I. INTRODUCTION

Plaintiff, APT Research, Inc. (“APT”), brings this post-award bid protest action
challenging the United States Missile Defense Agency’s (“MDA”) evaluation process and
decision to award a contract to support the Missile Defense System (the “MDS Contract’) to
ARES Technical Services Corporation (“ARES”). The parties have filed cross-motions for
judgment upon the administrative record on the issue of whether the MDA’s evaluation process
for the MDS Contract and award decision were reasonable. See generally Pl. Mot.; Def. Mot.;
Def.-Int. Mot. For the reasons set forth below, the Court: (1) DENIES APT’s motion for
judgment upon the administrative record; (2) GRANTS the government’s and ARES’s
respective cross-motions for judgment upon the administrative record; and (3) DISMISSES the

complaint.
Il. FACTUAL AND PROCEDURAL BACKGROUND!
A. Factual Background

This bid protest involves a challenge to the MDA’s evaluation process and decision to
award the MDS Contract to ARES. APT is an unsuccessful offeror in connection with that

procurement. See AR2567.

As background, the MDA’s mission is to develop and deploy a layered Missile Defense
System (“MDS”) to defend the United States, its deployed forces, its allies and friends from
missile attacks in all phases of flight. See https://www.mda.mil. As part of this mission, the
MDA requires, among other things, agency-wide safety engineering services to support the
MDS, which include simulated flight and ground tests as well as the development,

implementation and execution of safety and occupational health programs. AR302; AR2454.

' The facts recited in this Memorandum Opinion and Order are taken from the administrative record
(“AR”); APT’s motion for judgment upon the administrative record (Pl. Mot.”); and the government’s
and ARES’s cross-motions for judgment upon the administrative record (“Def. Mot.”; “Def.-Int. Mot.”).
Except where otherwise noted, the facts cited herein are undisputed.
APT is the incumbent provider of safety engineering services to the MDA. See Am. Compl. at
34.

1. The RFP

The contract at issue was awarded pursuant to the MDA’s Request for Proposals No.
HQ0858-20-R-0003 (“RFP”). Jd. at J§[ 4-5. On June 1, 2020, the MDA issued the RFP to
procure continued safety engineering services to support the MDS. AR33; AR302; AR2454.
The RFP provides that the MDA would use the following four factors to evaluate proposals: (1)
Mission Capability; (2) Information Management and Control Plan Services; (3) Organizational

Conflict of Interest Management Plan; and (4) Cost and Price. AR410.

The RFP states that the MDA would award the MDS Contract to the offeror whose
proposal constitutes the best value to the government, using a trade-off analysis of two of the
evaluation factors: (1) Mission Capability and (2) Cost and Price. /d. In this regard, the RFP
states that the Mission Capability factor is “significantly more important than Cost and Price.”
Id. The RFP also states that “[a]ward may be made to a higher rated, higher priced [o]fferor
where the Source Selection Authority .. . reasonably determines that the technical superiority of

the higher priced [o]fferor outweighs the price differential.” AR411.

The RFP requires offerors to submit proposals in six volumes. See AR358. Specifically
relevant to this dispute, the RFP provides that offerors are required to address the following six
subfactors of the Mission Capability factor in Volume III of their proposals: (1) Safety Risk
Acceptance Package Development and Coordination; (2) Safety Requirements Tailoring Process
Support; (3) Program Safety Documentation Review; (4) Test Event Safety Oversight; (5)
Occupational Safety & Health Program; and (6) Human Capital Management. AR364. The RFP
also provides that the Human Capital Management subfactor is comprised of the following four
elements: (1) recruit qualified personnel; (2) retain qualified personnel; (3) problem resolution
strategy; and (4) key staff position defined as Contract Program Manager (“CPM”). AR365-
AR366. With regards to the fourth element concerning the CPM, Section L of the RFP states
that every offeror “shall provide a bilaterally-signed employment agreement (employment
contingent on contract award) for the key staff position.” AR396. Section M of the RFP
similarly requires offerors to provide “a bilaterally-signed employment agreement that stipulates

employment beginning on or before the first day of contract period of performance for this
effort.” AR417.
Section L of the RFP further provides that:

Offerors shall assume that the Government has no prior knowledge of the
Offeror’s experience and will base its evaluation on the information
presented in the Offeror’s proposal. ... The Offeror’s proposal shall include
all of the information requested and shall comply fully with these Section L
instructions. Failure to do so may cause the Offeror’s proposal to be
eliminated from consideration for award.

AR356. In addition, Section M of the RFP provides that all offerors are “required to meet all
solicitation requirements, such as terms and conditions, representations and certifications, and

technical requirements, in addition to those identified as factors and subfactors to be eligible for

award.” AR411.

The RFP also provides that the MDA will evaluate proposals and award the MDS
Contract without conducting discussions. AR383. But, the RFP allows the MDA to seek
clarification, as described in FAR § 15.306(a). Jd.

With regards to the evaluation process, the RFP provides that the MDA would assign
strengths, weaknesses, significant weaknesses or deficiencies to each proposal. AR413. In this
regard, the RFP states that each offeror would receive one of the following five adjectival ratings

under each of the six subfactors for the Mission Capability factor:

Description
Proposal indicates an exceptional approach and

understanding of the requirements and contains multiple
strengths, and risk of unsuccessful performance is low.

Proposal indicates a thorough approach and understanding
of the requirements and contains at least one strength, and
risk of unsuccessful performance is low to moderate.

Proposal meets requirements and indicates an adequate
approach and understanding of the requirements, and risk
of unsuccessful performance is no worse than moderate.

Proposal has not demonstrated an adequate approach
and understanding of the requirements, and/or risk of
unsuccessful performance is high.

Proposal does not meet requirements of the solicitation,
and thus, contains one or more deficiencies, and/or risk of
Unacceptable unsuccessful performance is unacceptable. Proposal is
lunawardable.

Id.

The RFP also requires that the MDA evaluate cost and price for reasonableness and cost
realism. See AR418. In this regard, the RFP states that the MDA will evaluate costs in
accordance with FAR § 15.404. Jd. The RFP also includes benchmark direct labor rates that
were to be considered estimates of “minimum realistic average direct hourly rate[s].””» AR370.
In this regard, the RFP provides that offerors that propose lower labor rates than these

benchmarks will receive an unfavorable assessment in the form of cost realism adjustments. Jd.

Lastly, the RFP also requires that offerors submit a total compensation plan for
evaluation in accordance with FAR § 52.222-46 and the established minimum baseline
expectations for fringe benefits, including subsidized health insurance and vacation hours.
AR376. In this regard, the RFP states that any offeror that proposed lower fringe benefits than
those included in the baseline expectations would have to explain how its proposed alternative

compensation methods would enable it to recruit and retain qualified workers. Jd.
2s The Evaluation Process And Amendment 003

The MDA received timely proposals from three offerors, including APT and ARES.
AR522-AR1078; AR1079-AR1826. Thereafter, the MDA issued Amendment 003 to the RFP on
August 12, 2020. AR3969. Amendment 003 incorporates FAR § 52.204-24 into the RFP.
AR3972. It is undisputed that ARES did not provide a FAR § 52.204-24 certification with its
revised proposal in response to Amendment 003. Pl. Mot. at 18-19; Def. Mot. at 8, 25. It is also
undisputed that the MDA’s contracting officer contacted ARES about the lack of a FAR §
52.204-24 certification in ARES’s revised proposal. Pl. Mot. at 17-18; Def. Mot. at 25-26; Dec.
of April L. Paul § 6.

While the contracting officer requested that ARES provide this certification, it is further
undisputed that ARES’s proposal would have been awardable even if ARES had not submitted a

* The MDA also received a timely proposal from Bastion Technologies, Inc. AR1827-AR2329.
FAR § 52.204-24 certification. Pl. Resp. at 6; Def. Reply at 4-5. Lastly, it is also undisputed in
this case that APT did not provide a bilaterally-signed employment agreement for its proposed
CPM, Clark Kilgore, with its revised proposal. AR943-AR945; Pl. Mot. at 12; Def. Mot. at 8.

During the evaluation process, the MDA performed a cost realism analysis of the
proposals submitted by APT, ARES and one other offeror, for “Professional Employee Total
Compensation, affordability, reasonableness, and cost realism.” AR2331. During the cost
realism analysis, the MDA used benchmark estimates of adequate labor rates and fringe benefits
developed using incumbent contractor rates and labor market data. AR2333-2334. The MDA
compiled its findings from the cost realism analysis in a cost/price evaluation report. See
AR2330-AR2348. Thereafter, the MDA’s mission capability team evaluated the technical
elements of each proposal. See, e.g., AR2462.

The MDA’s Source Selection Evaluation Board (“SSEB”) used the findings of the
mission capability team to produce a Proposal Analysis Report (“PAR”). See AR2449-AR2564.
In the PAR, the SSEB noted that the mission capability team assigned the following combined

technical/risk ratings to each offeror:

ARES Technical Services
Factor 1: Corporation

Mission Combined Technical/Risk Rating Combined Technical/Risk Rating eam
Capability Technical/Risk

Rating

A-P-T Research, Inc.

Bastion Technologies, Inc

MCS1: Safety UTE Tay ohe lo)
Risk
Acceptance
Package
Development
and
Coordination

MCS2?: Safety
Requirements
Tailoring
Process
Support

MCS3:
Program
Safety
Documentatio
n Review

MCS4: Test 1 0 0 0 0 0 0 0 0 2 1 0
Event Safety

Oversight

MCSS:
Occupation
al Safety
& Health
Program

Unaccepta

MESO: S Ww sw Sw
Human

Capital 0 0 1 0 0
Management

Information

Manageme

Acceptable Acceptable Acceptable
Control Plan —
Services

Factor 2:

nt and

Factor 3: OCI

Management Acceptable Acceptable Acceptable
Plan

Factor 4:

Cost/Price

Proposed Cost $65,094,711 $54,941,108 $52,936,601
*Probable Cost $65,094,711 $54,941,108 $52,702,010

AR2460. Specifically relevant to this dispute, APT received an unacceptable rating for the

MCS6 evaluation subfactor for failing to provide a bilaterally-signed employment agreement for
Mr. Kilgore. AR2472. And so, the MDA determined that APT’s proposal was “unawardable”
under the terms of the RFP. Jd.

Thereafter, the SSEB recommended that the MDA’s Source Selection Authority (“SSA”)
award the MDS Contract to ARES, because ARES was the only awardable offeror and ARES
presented more than $10 million lower total evaluated cost compared to APT. AR2562-AR2563.

And so, the SSEB concluded that ARES’s proposal represented the best value to the government.
Id.

On October 21, 2020, the SSA decided to award the MDS Contract to ARES. AR2567.
In the source selection decision, the SSA determined that: (1) ARES submitted the only proposal
that did not receive an “unacceptable” technical rating under one of the Mission Capability
subfactors and (2) that APT’s total evaluated price was more than $10 million higher than
ARES’s total evaluated price. Jd. And so, the MDA awarded the MDS Contract to ARES on
November 17, 2020. AR2639.
On December 6, 2020, APT filed a bid protest before the Government Accountability
Office (“GAO”) challenging the award of the MDS Contract to ARES. See AR3160-3180.
After the GAO denied APT’s protest on March 12, 2021, APT filed this bid protest action. See
AR3955-AR3968.

B. Procedural Background

On March 23, 2021, APT filed the complaint in this matter, which it subsequently
amended on May 5, 2021. See generally Compl; Am. Compl. On March 24, 2021, ARES filed
an unopposed motion to intervene, which the Court granted on March 29, 2021. See generally
Def.-Int. Mot. to Intervene; Order, dated March 29, 2021. On the same day, the Court entered a

Protective Order in this matter. See generally Protective Order.

On April 12, 2021, the government filed the administrative record, which it subsequently
corrected on April 29, 2021. See generally AR. On May 5, 2021, APT filed a motion for
judgment upon the administrative record. See generally Pl. Mot. On May 19, 2021, the
government and ARES filed their respective responses and oppositions to APT’s motion for
judgment upon the administrative record and cross-motions for judgment upon the administrative

record. See generally Def. Mot.; Def.-Int. Mot.

On May 24, 2021, APT filed a response and opposition to the government’s and ARES’s
respective cross-motions for judgment upon the administrative record and a reply in support of
its motion for judgment upon the administrative record. See generally Pl. Resp. On May 28,
2021, the government and ARES filed their respective reply briefs in support of their cross-

motions. See generally Def. Reply; Def.-Int. Reply.

On June 11, 2021, the Court held oral arguments on the parties’ cross-motions for
judgment upon the administrative record. See generally Oral Arg. Tr. The Court issued an oral
opinion during the June 11, 2021, oral arguments. The Court issues this written opinion

consistent with its prior oral ruling in this matter.
Ul. LEGAL STANDARDS
A. Bid Protest Jurisdiction

The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid

protests brought by “an interested party objecting to a solicitation by a Federal agency for bids or

8
proposals for a proposed contract or to a proposed award or the award of a contract or any
alleged violation of statute or regulation in connection with a procurement or a proposed
procurement.” 28 U.S.C. § 1491(b)(1). This Court reviews agency actions that are at issue in a
bid protest matter under the Administrative Procedure Act’s (“APA”) “arbitrary and capricious”
standard. See 28 U.S.C. § 1491(b)(4) (adopting the standard of review set forth in the APA).
Under this standard, an “‘award may be set aside if either (1) the procurement official’s decision
lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or
procedure.’” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004)
(quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332
(Fed. Cir. 2001)).

In this regard, the United States Court of Appeals for the Federal Circuit has explained
that, “[w]hen a challenge is brought on the first ground, the test is ‘whether the contracting
agency provided a coherent and reasonable explanation of its exercise of discretion, and the
disappointed bidder bears a “heavy burden” of showing that the award decision had no rational
basis.’” /d. (quoting Jmpresa, 238 F.3d at 1332-33). “‘When a challenge is brought on the
second ground, the disappointed bidder must show a clear and prejudicial violation of applicable
statutes or regulations.’” Jd. (quoting Impresa, 238 F.3d at 1333). In addition, when reviewing
an agency’s procurement decision, the Court should recognize that the agency’s decision is
entitled to a “presumption of regularity.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 415 (1971), abrogated by Califano v. Sanders, 430 U.S. 99 (1977). “The [C]ourt
should not substitute its judgment for that of a procuring agency... .” Cincom Sys., Inc. v.
United States, 37 Fed. Cl. 663, 672 (1997). And so, “[t]he protestor must show, by a
preponderance of the evidence, that the agency’s actions were either without a reasonable basis
or in violation of applicable procurement law.” Info. Tech. & Applications. Corp. v. United

States, 51 Fed. Cl. 340, 346 (2001), aff'd, 316 F.3d 1312 (Fed. Cir. 2003) (citation omitted).

The Court’s standard of review “is highly deferential.” Advanced Data Concepts, Inc. v.
United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000). As long as there is “‘a reasonable basis for
the agency’s action, the [C]ourt should stay its hand even though it might, as an original
proposition, have reached a different conclusion ....’” Honeywell, Inc. v. United States, 870
F.2d 644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301
(D.C. Cir. 1971)). But, if “the agency ‘entirely fail[s] to consider an important aspect of the
problem, [or] offer[s] an explanation for its decision that runs counter to the evidence before the
agency,’” then the resulting action lacks a rational basis and, therefore, is defined as “arbitrary
and capricious.” Ala. Aircraft Indus., Inc.-Birmingham y. United States, 586 F.3d 1372, 1375
(Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43 (1983)).

In addition, this Court affords contracting officers a great deal of discretion in making
contract award decisions when the contract is to be awarded to the offeror that will provide the
best value to the government. See Banknote Corp. of Am., 365 F.3d at 1355-56; TRW, Inc. v.
Unisys Corp., 98 F.3d 1325, 1327-28 (Fed. Cir. 1996); E.W. Bliss Co. v. United States, 77 F.3d
445, 449 (Fed. Cir. 1996); Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d 955, 958-59 (Fed.
Cir. 1993). In this regard, the Court has held that the government’s best value determination
should not be disturbed, if the government documents its analysis and includes a rationale for
any business judgments and trade-offs made in reaching that decision. See Blackwater Lodge &
Training Ctr., Inc. v. United States, 86 Fed. Cl. 488, 514 (2009). And so, a decision to award a
contract is least vulnerable to challenge when that decision is based upon a best value

determination. PlanetSpace, Inc. v. United Sates, 96 Fed. Cl. 119, 125 (2010).
B. Judgment Upon The Administrative Record

Unlike a summary judgment motion brought pursuant to RCFC 56, “the existence of
genuine issues of material fact does not preclude judgment on the administrative record” under
RCFC 52.1. Tech Sys., Inc. v. United States, 98 Fed. Cl. 228, 242-43 (2011); see RCFC 56.
Rather, the Court’s inquiry is whether, “given all the disputed and undisputed facts, a party has
met its burden of proof based on the evidence in the record.” A&D Fire Prot., Inc. v. United
States, 72 Fed. Cl. 126, 131 (2006) (citing Bannum, Inc. v. United States, 404 F.3d 1346, 1356
(Fed. Cir. 2005)).

Cc. Injunctive Relief

Lastly, the Tucker Act authorizes this Court to “award any relief that the court considers
proper, including . . . injunctive relief” in bid protest matters. 28 U.S.C. § 1491(b)(2); see RCFC
65. In deciding whether to issue a permanent injunction, the Court “considers: (1) whether .. .
the plaintiff has succeeded on the merits of the case; (2) whether the plaintiff will suffer

irreparable harm if the court withholds injunctive relief; (3) whether the balance of hardships to

10
the respective parties favors the grant of injunctive relief; and (4) whether it is in the public
interest to grant injunctive relief.” PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed.
Cir. 2004) (citing Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987)
(“The standard for a preliminary injunction is essentially the same as for a permanent injunction
with the exception that the plaintiff must show a likelihood of success on the merits rather than
actual success.”)); see also Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir.
2009). In this regard, the Federal Circuit has held that:

No one factor, taken individually, is necessarily dispositive. If [an
injunction] is granted by the trial court, the weakness of the showing
regarding one factor may be overborne by the strength of the others. If the
injunction is denied, the absence of an adequate showing with regard to any
one factor may be sufficient, given the weight or lack of it assigned the other
factors, to justify the denial.

FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (citation omitted).

This Court has also found success upon the merits to be “the most important factor for a
court to consider when deciding whether to issue injunctive relief.” Dellew Corp. v. United
States, 108 Fed. Cl. 357, 369 (2012) (citing Blue & Gold Fleet, L.P. v. United States, 492 F.3d
1308, 1312 (Fed. Cir. 2007)). But, while success upon the merits is necessary, it is not sufficient
alone for a plaintiff to establish an entitlement to injunctive relief. See Contracting, Consulting,
Eng’g LLC vy. United States, 104 Fed. Cl. 334, 353 (2012) (‘Although plaintiff's entitlement to
injunctive relief depends on its succeeding on the merits, it is not determinative because the three

equitable factors must be considered, as well.”’) (citations omitted)).
IV. LEGAL ANALYSIS

APT asserts five challenges to the MDA’s evaluation process and award decision for the
MDS Contract, namely that: (1) the MDA acted arbitrarily, irrationally and contrary to
applicable law by assigning APT’s proposal an unacceptable rating; (2) the MDA’s cost realism
analysis was arbitrary, irrational and violated FAR § 15.404-1(d); (3) the MDA failed to evaluate
professional compensation, as required by FAR § 52.222-46; (4) the MDA arbitrarily and
irrationally evaluated the offerors’ experience under the Mission Capability factor; and (5) the

MDA’s source selection analysis was arbitrary and capricious, an abuse of discretion and

11
contrary to law. Pl. Mot. at 12-37. And so, APT requests, among other things, that the Court
enjoin the MDA from proceeding with performance under the MDS Contract. /d. at 39.

The government and ARES counter that the MDA’s evaluation process and award
decision were rational and consistent with the terms of the RFP and applicable law. Def. Mot. at
20-32; Def.-Int. Mot. at 13-48. And so, they request that the Court sustain the MDA’s award
decision. Def. Mot. at 33; Def-Int. Mot. at 49-50.

For the reasons that follow, a careful review of the administrative record shows that the
MDA’s evaluation process and decision to award the MDS Contract to ARES were reasonable
and consistent with the terms of the RFP. And so, the Court: (1) DENIES APT’s motion for
judgment upon the administrative record; (2) GRANTS the government’s and ARES’s cross-
motions for judgment upon the administrative record; and (3) DISMISSES the complaint.

A. The MDA Did Not Err In Determining
That APT’s Proposal Was Unacceptable

As an initial matter, APT has not shown that the MDA acted arbitrarily, irrationally, or
contrary to applicable law by assigning APT’s proposal an unacceptable rating under the RFP’s
Mission Capability factor. It is undisputed that APT did not provide a bilaterally-signed
employment agreement for its proposed Contract Program Manager, Mr. Clark Kilgore, with its
revised proposal. Pl. Mot. at 12; Def. Mot. at 8; see also AR943-AR945. Because the record
evidence shows that APT was required to do so under the terms of the RFP, the MDA reasonably
found APT’s proposal to be “unawardable.” AR2472.

In this regard, a plain reading of the RFP makes clear that APT and all other offerors
were required to provide a bilaterally-signed employment agreement for the individual proposed

to serve as the CPM for the MDS Contract. Notably, Section L of the RFP provides that:

The Offeror shall provide a bilaterally-signed employment agreement
(employment contingent on contract award) for [the proposed CPM]. The
bilaterally-signed employment agreement must stipulate employment
beginning on or before the first day of contract period of performance for
this effort.

AR396. Section M of the RFP similarly requires that offerors provide “a bilaterally-signed
employment agreement [for the proposed CPM] that stipulates employment beginning on or

before the first day of contract period of performance for this effort.” AR417. And so, the Court

12
reads these provisions in the RFP to require that APT provide a bilaterally-signed employment
agreement for its proposed CPM with its final revised proposal. AR396; see Gutierrez de
Martinez v. Lamagno, 515 U.S. 417, 432 n.9 (1995) (recognizing that the use of the word “‘shall’

generally means ‘must’”).

The Court is also not persuaded by APT’s argument that it had no obligation to provide
such an agreement for Mr. Kilgore, because the RFP does not require a bilaterally-signed
employment agreement for existing employees. Def. Mot. at 12-15; Pl. Resp. at 2-3. To support
this argument, APT points to the language in Section L of the RFP providing that “(employment
contingent on contract award),” and APT argues that Mr. Kilgore did not need to sign an
employment agreement for the MDS Contract because he is an existing employee of APT. PI.
Mot. at 13-14. But, the Court reads the language cited by APT to mean that employment as the
CPM for the MDS Contact would be contingent upon the award of that contract to the successful
offeror. AR396. Such a reading is in harmony with the plain text of Section M of the RFP,
which provides that the bilaterally-signed employment agreement would stipulate “employment
beginning on or before the first day of contract period of performance for this effort.” AR417.
Given this, the plain text of the RFP requires a bilaterally-signed employment agreement for any

individual proposed to be the CPM.

Because it is undisputed that APT did not provide the bilaterally-signed employment
agreement at issue, the record evidence in this case makes clear that the MDA reasonably

assigned “unacceptable” rating to APT’s proposal. Def. Mot. at 8; Pl. Mot. at 12; AR2460.

APT’s argument that the MDA erred by failing to seek clarification from APT regarding
the missing employment agreement for Mr. Kilgore is equally unavailing. Pl. Mot. at 15-17; Pl.
Resp. at 4-5; Oral Arg. Tr. at 18:3-18:21. APT argues that the MDA should have engaged in
discussions with, or sought clarification from, APT regarding the missing employment
agreement. Pl. Mot. at 15-17; Pl. Resp. at 4-5. But, the RFP makes clear that an discussions
with APT would have been inappropriate, because the RFP requires that the MDA “evaluate
proposals and award a contract without discussions with [o]fferors, (except clarifications as

described in FAR 15.306(a)).” AR383.

APT’s claim that the MDA should have sought clarification from APT regarding the
bilaterally-signed employment agreement for Mr. Kilgore is also dubious. FAR § 15.306(a)(2)

13
makes clear that clarifications may only resolve minor or clerical errors with regards to APT’s
proposal. See FAR § 15.306(a)(2) (providing that “[i]f award will be made without conducting
discussions, offerors may be given the opportunity to clarify certain aspects of proposals . . . or
to resolve minor or clerical errors.”). The missing bilaterally-signed employment agreement for

Mr. Kilgore is not the type of minor or clerical error contemplated by FAR § 15.306(a)(2).°

While perhaps on somewhat stronger footing, APT’s argument that the MDA engaged in
unequal treatment of the offerors does not provide a sufficient basis for the Court to set aside the
MDA’s award decision. APT argues that the MDA engaged in unequal treatment of offerors,
because the agency’s contracting officer sought clarification from ARES’s regarding a FAR §
52.204-24 certification that was not included in ARES’s final revised proposal. Pl. Mot. at 20;
see also Oral Arg. Tr. at 18:22-19:8. But, even if it the MDA erred in seeking clarification from
ARES, the record evidence makes clear that APT has not been prejudiced by this alleged conduct

for two reasons.

First, APT has not shown that it was prejudiced by the clarification at issue because, its
own proposal was “unacceptable,” and thus, “unawardable” under the terms of the RFP.
AR2472. And so, APT would not have been in a position to be awarded the MDS Contract, if

the agency had not sought clarification from ARES.

APT also fails to establish prejudice, because the administrative record shows that the
clarification at issue did not alter ARES’s final revised proposal. It is undisputed that ARES had
no obligation to submit a FAR § 52.204-24 certification with its proposal because ARES had
previously submitted a FAR § 52.204-26 certification to the MDA. PI. Mot. at 18; Def. Mot. at
8; see also AR1263. The MDA’s contracting officer, April L. Paul, also makes clear in her
declaration that “even if ARES did not respond to the MDA’s question regarding the FAR §
52.204-24 certification, ARES’ [s] proposal would still have been acceptable and contained no

deficiencies; thus it still would have been awardable.” Dec. of April L. Paul 8. Given this, the

* APT also argues that the MDA had a duty to inquire into missing proposal information based upon the
agency’s past contracting history with APT. Pl. Mot. at 16-17. But, this argument is unavailing, because
it is expressly contradicted by the terms of the RFP. Section L of the RFP states that offerors “shall
assume that the Government has no prior knowledge of the [o]fferor’s experience and will base its
evaluation on the information presented in the [o]fferor’s proposal. Alternate proposals . . . that deviate in
any way from the solicitation . . . will not be considered nor evaluated.” AR356.

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MDA’s decision to seek clarification from ARES regarding the missing FAR § 52.204-24
certification did not alter the fact that ARES’s proposal offered the best value to the government.

AR2567.
B. APT Fails To Show Prejudice Regarding The MDA’s Other Alleged Errors

Because the record evidence shows that the MDA reasonably determined that APT’s
proposal was “unacceptable” and thus, “unawardable” under the terms of the RFP, the Court
need not address the other evaluation errors alleged in this case. APT simply has not established
that it was prejudiced by any of these alleged evaluation errors, given the deficiency in its own
proposal. AR2460. And so, the Court must also DENY these claims. See Labatt Food Serv.,
Inc. v. United States, 577 F.3d 1375, 1378 (Fed. Cir. 2009) (protestor must show that “but for the

[alleged] error, it would have had a substantial chance of securing the contract”).*

A careful review of the administrative record also shows that the MDA’s evaluation
process was rational and that the agency reasonably decided to award the MDS Contract to
ARES, consistent with the requirements of the RFP. In this regard, the record evidence shows
that the MDA’s cost evaluation team carefully analyzed all responsive proposals and determined
that the proposed costs all of the offerors were reasonable and realistic, consistent with the terms
of the RFP. AR2339; AR2343; AR2347-2348; see also AR419 (requiring that the MDA conduct
an independent cost realism analysis to determine whether each offeror’s proposed costs are
reasonable and realistic for the work to be performed). The record evidence also makes clear
that the MDA’s SSEB carefully evaluated all responsive proposals and prepared a detailed
proposal analysis report that: (1) outlined the technical evaluation criteria in the RFP and their

respective importance; (2) provided the evaluation results for each proposal; (3) summarized and

* The administrative record also calls into doubt several of APT’s claims challenging the MDA’s
evaluation process. For example, APT’s claim that the MDA erred by failing to compare ARES’s
proposed costs to APT’s costs is contradicted by the terms of the RFP, which provides that the MDA
would analyze each offeror’s proposed costs for reasonableness and realism by comparing these costs to
benchmark estimates of adequate labor rates and fringe benefits that were developed using incumbent
contractor rates and labor market data. AR370-AR371; AR2339-AR2444. APT’s claim that the MDA
failed to appropriately credit its prior experience is similarly belied by the record evidence showing that
the MDA assigned a strength to APT’s proposal for proposing to use staff that had “extensive experience
providing Ground Safety at missile testing sites.” AR2470.

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discussed the differences between each proposal; and (4) recommended that the SSA award the

MDS Contract to ARES. AR2448-AR2564.

The source selection decision for the MDS Contract also reflects the independent best
value determination of the SSA, based upon the RFP’s evaluation factors and the evaluation
results for each proposal. AR2567 (showing that the SSA reviewed the evaluation results and
independently determined that: (1) ARES submitted the only proposal that did not receive an
“unacceptable” technical rating under one of the Mission Capability subfactors and (2) APT’s
total evaluated price was more than $10 million higher than ARES’s total evaluated price).
AR2567. And so, the Court is satisfied that the MDA reasonably determined that ARES’s

proposal represented the best value to the government in this case.

Because APT has not shown that the MDA’s evaluation process and decision to award
the MDS Contract to ARES were irrational, or contrary to the terms of the RFP or applicable

law, the Court will not set aside the sound determinations of the MDA.
C. APT Is Not Entitled To Injunctive Relief

Because APT has not prevailed upon the merits of any of its bid protest claims in this
case, the Court must also DENY APT’s request for injunctive relief. Argencord Mach. &
Equip., Inc. v. United States, 68 Fed. Cl. 167, 176 (2005).

V. CONCLUSION

In sum, APT has not shown that the MDA erred in determining that its proposal was
“unacceptable,” and thus “unawardable,” under the terms of the RFP for the MDS Contract.
APT similarly fails to show that it has been prejudiced by any of the other alleged evaluation

errors in this case. And so, the Court:
1. DENIES APT’s motion for judgment upon the administrative record;

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

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

Each party to bear its own costs.

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Some of the information contained in this Memorandum Opinion and Order may be
considered protected information subject to the Protective Order entered in this matter on March
29, 2021. This Memorandum Opinion and Order shall therefore be filed UNDER SEAL. The
parties shall review the Memorandum Opinion and Order to determine whether, in their view,
any information should be redacted in accordance with the terms of the Protective Order prior to
publication. The parties shall FILE a joint status report identifying the information, if any, that
they contend should be redacted, together with an explanation of the basis for each proposed

redaction on or before July 14, 2021.

IT IS SO ORDERED.

s/ Lydia Kay Griggsby
LYDIA KAY GRIGGSBY
Judge

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