Bannum, Inc. appeals from the judgment of the United States Court of Federal Claims in favor of the United States, dismissing its post-award bid protest with prejudice. Bannum, Inc. v. United States, No. 03-1284 (Fed.Cl. Aug. 7, 2003) (final judgment incorporating bench ruling made during oral argument on August 6, 2003). Although it determined the government violated its regulation and the terms of a request for proposals in evaluating the bids at issue, the trial court ruled there was no significant prejudice to Bannum. We affirm.
I.
On February 24, 2002, the Department of Justice, Bureau of Prisons (“BOP”) issued a request for proposals (“RFP”) for a contract relating to Community Correction Center (“CCC”) services in the Florence, South Carolina area. On April 24, 2002, Bannum, Inc. (“Bannum”) bid on the contract. The Alston Wilkes Society (“Alston Wilkes”) submitted its bid the next day. As the “incumbent” contractor, from 1998 to 2003 Bannum rendered the same services at issue in the RFP.
The RFP provided that the bid selection would turn on “best-value” procurement. Under this system the BOP evaluated bids under five factors, each assigned a different point value: (1) past performance (400 points); (2) community relations (350 points); (3) technical (250 points); (4) management (250 points); and (5) cost (250 points). Past performance on other government contracts was the most important criteria.
The BOP valued past performance by reviewing Contract Evaluation Forms (“CEFs”) completed for other BOP contracts. The CEFs are “annual assessments” that grade contractors with “overall performance” scores. The BOP’s CEF process is governed by 48 C.F.R. § 42.1503 (Federal Acquisition Regulation or “FAR” § 42.1503). Section 42.1503 provides, in relevant part:
Agency evaluations of contractor performance prepared under this subpart shall be provided to the contractor as soon as practicable after completion of the evaluation. Contractors shall be given a minimum of 30 days to submit comments, rebutting statements, or additional information. Agencies shall provide for review at a level above the contracting officer to consider disagreements betiveen the parties regarding the evaluation. The ultimate conclusion on the performance evaluation is a decision of the contracting agency. Copies of the evaluation, contractor response, and review comments, if any, shall be retained as part of the evaluation. These evaluations may be used to support future award decisions, and should therefore be marked “Source Selection Information.”
FAR § 42.1503(b) (2004) (emphases added).
BOP procedures called for Management Center Administrators (“MCA”), under FAR § 42.1503, to review CEFs and contractor rebuttals. MCAs supervise “Correctional Management Centers” comprising two or more “community correction field offices.” The MCA works “a level above CCC Oversight Specialists.” It is undisputed that MCAs do not supervise BOP contracting officers.
*1350 The RFP required bidders to submit a list of all contracts completed in the preceding three year's, or currently in progress. The RFP further cautioned “offer-ors would be well served to be aware of possible dissatisfied customers and address the issues in initial proposal submissions.”
Bannum admits that it knew, when it submitted its bid on April 24, 2002, that the BOP had not reviewed the CEFs and Bannum’s rebuttals relating to other contracts “at a level above the contracting officer.” That is, Bannum knew that the BOP procedure called for reviewing CEFs at the MCA level. Nevertheless, Bannum identified 21 past contracts in its bid without mentioning any of its rebuttal letters or disagreement with existing CEFs. Ban-num explains that it assumed the CEF and rebuttal review would take place in conjunction with the source selection on the RFP. ■
On October 9, 2002, the BOP scored Bannum’s past performance based on 16 of Bannum’s past contracts. 1 The BOP determined Bannum’s past performance warranted 74% of the possible 400 points, assigning 296 points for this portion of Bannum’s bid. The BOP did not alter its CEF review process as Bannum had assumed it would.
On January 13, 2003, BOP awarded the contract to Alston Wilkes. BOP notified Bannum of the award on January 23, 2003.
In March 2003, in response to alternative dispute resolution in the Government Accountability Office (“GAO”) — not involving this specific action — the BOP re-evaluated its recent Community Correction Center award decisions. For this bid a contracting officer re-scored Bannum’s past performance on the basis of 15 contracts and awarded Bannum 312 points rather than the original 296. Nonetheless, Alston Wilkes still received higher points than Bannum in each factor.
This was not a de novo review and the record does not show that this contracting officer accounted for every Bannum rebuttal. Instead, the March 2003 review relied on rebuttals available in the record maintained by BOP. On one past contract, J200c-361, the officer simply discarded the CEF because the CEF form was not signed. There is no evidence how the review on that contract, accounting for Ban-num rebuttals, might have improved Ban-num’s past performance score for this bid. For contract J200c — 433—in contrast to instances where the contracting officer specifically noted that Bannum did not submit a rebuttal' — the contracting officer simply noted there was no rebuttal in the file. On another contract, J200c-310, this officer simply reported the MCA’s score after reviewing Bannum’s rebuttal. The officer made no attempt to independently review the CEF in view of the rebuttal.
On May 28, 2003, Bannum filed this bid protest in the United States Court of Federal Claims, asking the court to set aside the contract award to Alston Wilkes and compel the BOP to re-evaluate Bannum’s bid.
Bannum and the government filed cross-motions for judgment on the administrative record. On August 6, 2003, the trial court heard argument and granted judgment for the government. Although the court ruled the BOP had violated both FAR § 42.1503(b) and the terms of the RFP when assigning weights (based on the CEFs) to Bannum’s past contract performance, it determined that Bannum was not sufficiently prejudiced by the violations to warrant setting aside the award to Alston Wilkes.
*1351 On August 7, 2003, the trial court entered judgment for the United States and dismissed the action. Bannum timely appealed, and this court has jurisdiction under 28 U.S.C. § 1295(a)(3).
II.
A.
A bid protest proceeds in two steps. First, as discussed below, the trial court determines whether the government acted without rational basis or contrary to law when evaluating the bids and awarding the contract. Second, as discussed further in Section III, if the trial court finds that the government’s conduct fails the APA review under 5 U.S.C. § 706(2)(A), then it proceeds to determine, as a factual matter, if the bid protester was prejudiced by that conduct.
This court reviews the trial court’s determination on the legal issue of the government’s conduct, in a grant of judgment upon the administrative record, without deference.
Info. Tech. & Applications Corp. v. United States,
B.
As noted above the lower court ruled that the BOP’s failure to comply with FAR § 42.1503(b), and the terms of the RFP, were violations of law under § 706(2)(A). Although the government argues the court was mistaken, we find no error in these rulings.
The trial court focused on the BOP’s process by which the MCA, rather than someone “at a level above the contracting officer,” reviewed CEFs and contractor rebuttals. The government, however, urges the court to adopt the reasoning expressed by another Court of Federal Claims decision, in a related case, holding that the same CEF review process applied by the BOP ‘substantially’ complies with FAR § 42.1503.
See Bannum, Inc. v. United States,
The FAR specifically required the BOP to “provide for review at a level above the contracting officer to consider disagreements between the parties regarding the evaluation.” FAR § 42.1503(b). By its plain terms, a review “at a level above the contracting officer” contemplates review by a person with authority to direct the contracting officer’s response. See, e.g., Webster’s Ninth New Collegiate Dictionary 45 (1985) (defining “above” as “superior to (as in rank, quality or degree)”). The fact that FAR § 42.1503(b) uses “above” instead of “independent” tends to support the view that “above” *1352 means someone with authority over the contracting officer.
The regulation explains that the review is provided “to consider disagreements between the parties regarding the evaluation.” FAR § 42.1503(b). Since “[t]he ultimate conclusion on the performance evaluation is a decision of the contracting agency,” the review plainly is intended to account for any bias or mistake in the contracting officer’s review. Id. But since the agency’s ultimate decision on any dispute necessarily involves evaluating the contracting officer’s review of the contract, the reviewing authority should be someone familiar with the contract, the history of its implementation, and the particular concerns of both the contracting officer and the contractor in performing the contract. Someone in a supervisory or decision-making role in relation to the contracting officer complies with this regulatory requirement.
This understanding comports with guidance from the Office of Federal Procurement Policy (“OFPP”) concerning the contractor’s right to have performance evaluations reviewed. In language that mirrors FAR § 42.1503(b), a 1992 Policy Letter explains that if evaluation is done by a contracting officer, contractors have a right to discuss such evaluation “with the head of the contracting activity.” OFFP Policy Letter 92-5 § 7(a)(3) (OFFP Dec. 30, 1992) (notification to contractors). 2 This policy comports with a construction of FAR § 42.1503(b) that requires someone in a supervisory or decision-making capacity, in relation to the contract and contracting officer at issue, to review disputes regarding performance ratings. In other words, the regulation specifies a supervisory role at least inasmuch as the reviewer has authority to settle disputes between the contracting officer and the contractor.
Other agencies implementing 48 C.F.R. § 42.1503(b) recognize that review under the regulation calls for similar contracting expertise. For example, the EPA’s policy statement regarding performance evaluations specifically recognizes that “[a] contractor’s performance evaluation should closely parallel award fee determinations made under the contract.” 48 C.F.R. § 1509.170-5®. This tends to confirm that “at a level above the contracting officer” indicates a person familiar with parallel award fee determinations, and how performance reviews affect that aspect of the contract.
The commentators agree that the reviewer is required to bring specific knowledge to the task. For example, discussing the agency performance review system for “cost-plus-award-fee” (CPAF) contracts, the commentators discuss performance assessment in terms of a “review of those evaluations by a board of higher-level personnel.” J. Cibinic and R.C. Nash, Jr., Formation of Government Contracts 1166 (George Washington University 3d ed.1998). Cibinic and Nash explain:
On larger procurement contracts ... this step is advisable in order to ensure that the evaluations are internally consistent and that they reflect an overall view of the contractor’s accomplishments. A board of this type would be expected to discern, for instance, not only that one evaluator has downgraded a contractor, but also that the contractor’s performance was marginal because of a conscious decision to devote effort to some other important task.
Id. at 1166-67. To the extent this review implicates the same concern as review un *1353 der FAR § 42.1503(b), it favors a construction that requires review by someone with authority over contract administration in general.
The government also sees performance evaluation under 48 C.F.R. § 42.1503(b) as a tool for improving current performance on existing contracts, suggesting the evaluation must be done in view of the detailed factual context surrounding contract administration. Again, this comports with review by someone supervising a contracting officer. For example, on May 22, 2003, DOD, GSA, and NASA — through the Civilian Agency Acquisition Council and Defense Acquisition Regulations Council— adopted a final rule requiring evaluation of Federal Prison Industries contract performance. Responding to a comment that the evaluation was irrelevant in view of a mandatory source status, the government replied by citing the May 2000 OFPP guide “Best. Practices for Collecting and Using Current and Past Performance Information.” “[T]he active dialog that results from assessing a contractor’s current performance results in better performance on the instant contract, and [ ] such assessments are a basic best practice for good contract administration.” 68 Fed.Reg. 28095 (May 22, 2003). The FAR review, therefore, should be undertaken by someone with not only an understanding of the contracting requirements, but also the authority to direct the contracting officer.
For all these reasons the lower court’s reasoning in the related case, which the government urges this court to adopt, is unpersuasive. Review by the MCA does not satisfy FAR § 42.1503(b) simply because the MCA is a “third party.” The trial court in this action correctly applied the proper analysis to the BOP’s use of these CEFs.
Bannum further argues that the BOP violated the FAR in failing to assess Bannum’s rebuttals, on the prior contracts, when assessing its bid. The trial court rejected this argument, and we likewise find it unconvincing. As the Comptroller General decided in 2001, a bid protest is not the proper forum, under FAR § 42.1503(b), to litigate CEF disputes.
See In re Ocean Technical Servs., Inc.,
No. B-288,659, 2001 CPD P 193,
III.
The trial court was required to determine whether these errors in the procurement process significantly prejudiced Bannum.
Alfa Laval Separation, Inc. v. United States,
A.
1.
Court of Federal Claims Rule 56.1 (“RCFC 56.1” or “Rule 56.1”) sets forth the standard by which the court reviews factual determinations in a judgment on the administrative record. The issue before this court is whether the trial court correctly found that Bannum suffered no actionable prejudice by the BOP’s FAR and RFP violations. We hold RCFC 56.1 requires the Court of Federal Claims, *1354 when making a prejudice analysis in the first instance, to make factual findings from the record evidence as if it were conducting a trial on the record. In such circumstances this court reviews such findings for clear error, consistent with RCFC 52 and appellate review of factual determinations underpinning a discretionary ruling on preliminary injunction.
This clear error review is consistent with the APA review dictated by § 1491(b)(4). As the court noted in
Advanced Data Concepts,
2.
This court has not squarely considered the standard to review factual findings by the Court of Federal Claims under RCFC 56.1. In
Banknote Corp. of Am., Inc. v. United States,
Although it never reached the factual question of prejudice, the Banknote II court added that it is the trial and appellate courts’ task to “determine whether there are any genuine issues of material fact as to whether the agency decision lacked a rational basis or involved a prejudicial violation of applicable, statutes or regulations.” This language equates a RCFC 56.1 judgment to a summary judgment under RCFC 56 and is unnecessary to the Banknote II holding. Because the court decided the issue by an interpretation of the solicitation, e.g., making a legal determination, the court in Banknote II did not need to consider whether the trial court overlooked a genuine dispute or improperly considered the facts of that case. 4
*1355
In resting its judgment on the bidder’s failure to show conduct violating the APA requirements at 5 U.S.C. § 706(2)(A), this court’s decision in
Banknote II
mirrored the trial court’s analysis.
See Banknote Corp. of Am., Inc. v. United States,
The trial court’s analysis in Banknote I comports with a proper reading of Rule 56.1. The court must distinguish the trial court’s judgment on the administrative record from a summary judgment requiring the absence of a genuine issue of material fact. The Court of Federal Claims adopted Rule 56.1 under its statutory authority to prescribe the procedural and practice rules for its proceedings. 5 See 28 U.S.C. § 2503(b). When interpreting Rule 56..1 there are several reasons to differentiate between a summary judgment and a judgment on the administrative record. First, as the Rules Committee Note observes, RCFC 56.1 has no counterpart in the Federal Rules of Civil Procedure. 6 We find this difference significant, and it counsels against adopting— simply by analogy — Rule 56 burden-shifting and presumptions. Rule 56.1 requires a different standard of review, otherwise there would be no need to differentiate between a Rule 56.1 procedure and a Rule 56 summary judgment analysis.
Second, by its plain language Rule 56.1 confirms this understanding. It specifically provides that “RCFC 56(a)-(b) applies, with the exception that any supplementation of the administrative record shall be *1356 by stipulation or by court order.” RCFC 56.1(a). Subsections 56(a) and (b) of Rule 56 provide that one side or the other can submit affidavits in support of their position. See RCFC 56(a), (b). Notably, RCFC 56.1 does not incorporate RCFC 56(c) or (d), yet those subsections provide the basis for denying summary judgment based on a genuine issue of material fact, and for drawing inferences in favor of the non-moving party. Accord Fed.R.Civ.P. 56(c), (d). This omission is consistent with a rule designed to provide for trial on a paper record, allowing fact-finding by the trial court.
Third, viewed in the context of this action the judgment on an administrative record is properly understood as intending to provide for an expedited trial on the record. The statute conferring the Court of Federal Claims’s jurisdiction over bid protests expressly requires the trial court to give “due regard” to “the need for expeditious resolution of the action.” 28 U.S.C. § 1491(b)(3). Proceeding under RCFC 56.1 merely restricts the evidence to the agency record, as may be supplemented consistent with RCFC 56(a) or (b). In this case, that required the trial court to make factual findings on prejudice from the record evidence.
Finally, the underlying cases cited in
Banknote II
do not support the proposition that in reviewing the factual matters in a judgment under Rule 56.1 this court “reappl[ies] the summary judgment standard in an independent review to determine whether the moving party is entitled to judgment as a matter of law.” For this conclusion,
Banknote II
relies on
JWK Int’l Corp. v. United States,
In
JWK II,
this court explained — in the opening paragraph — that it affirmed the trial court’s judgment for the government in view of the conclusion that the government acted in accordance with the law.
JWK II,
The trial court’s
JWK
opinion explains, in detail, why each of the protestor’s APA challenges failed to show fault in the government’s conduct. That detailed discussion contrasts with the lack of analysis of why the factual record, for the same conduct, failed to support a claim of prejudice. Instead, at various points the lower court simply tacked onto various conclusions, that there was no APA violation, boilerplate determinations that prejudice was not shown.
See, e.g., JWK I,
This court’s opinion in
JWK II
likewise provided a cursory discussion of a failed showing of prejudice, but that discussion was unnecessary to the result. Moreover, although the
JWK II
opinion recites a summary judgment-type review of the facts,
JWK II,
In the absence of an alleged error, there must be a “substantial chance” that JWK would have received the award. Statistica, Inc. v. Christopher,102 F.3d 1577 , 1581 (Fed.Cir.1996). JWK argues that if the contracting officer had entered into cost discussions and it had been given the opportunity to offer cost caps on its proposed labor rate escalation, then it could have bid a lower cost and been awarded the contract. But cost was the least important criterion, and even with the cost realism adjustment, JWK’s bid was still lower than LTM’s. It was more important that JWK received lower ratings in the technical and management areas than LTM, because the contracting officer decided that LTM’s superiority in those areas outweighed the marginal cost difference between the two. That ivas a permissible judgment under the source selection regulation, FAR § 15.308, 48 C.F.R. § 15.308 (2001).
JWK II,
The Court of Federal Claims, therefore, when making a prejudice analysis in the first instance, is required to make factual findings under RCFC 56.1 from the record evidence as if it were conducting a trial on the record. In such circumstances this court reviews such findings for clear error, consistent with RCFC 52. As the court noted in
Advanced Data Concepts,
B.
The trial court did not clearly err in finding that Bannum was not significantly prejudiced by the BOP’s violations.
*1358
To establish prejudice Bannum was required to show that there was a “substantial chance” it would have received the contract award but for the BOP’s errors in the bid process.
Info. Tech.,
Bannum necessarily relies on the difference between the 104 points the BOP docked it based on the CEFs, and the 74.5 points by which Alston Wilkes won the bid. Had the BOP deducted fewer than 29.5 points for past performance, Bannum would have prevailed. But neither Ban-num nor the record explains why Bannum had a substantial chance of scoring at least 74.5 points higher on past performance had the BOP reviewed the CEFs in accordance with the FAR. The independent review pursuant to the separate GAO proceeding increased Bannum’s past performance award by 16 to 312 points, an amount insufficient to alter the award outcome. There is nothing besides Bannum’s conjecture tó support the contention that another review, comporting with the FAR, would provide it a substantial chance of prevailing in the bid. Bannum’s argument rests on mere numerical possibility, not evidence. In sum, we find no clear error in the trial court’s determination and will not disturb it. Accordingly, the judgment of the Court of Federal Claims is affirmed.
AFFIRMED
COSTS
Each side will bear its own costs.
Notes
. The BOP only considered CEFs for which any appeal was complete.
. Available at http://www.amet. gov/Library/OFPP/PolicyLetters/Letters/ PL92-5.html. The court takes judicial notice of this Policy Letter under Fed.R.Evid. 201(c).
.
Cf. F.LLI De Cecco Di Filippo Fara S. Martino S.p.A. v. United States,
. Although various cases since
Banknote
have repeated its
dicta
equating judgment under RCFC 56.1 with summary judgment, none of those cases have applied that reasoning. As in
Banknote,
in each instance the decisions turned on pure questions of law.
See, e.g., Roth v. United States,
. The court has been unable to locate any history or commentary to Rule 56.1 other than the Rule Committee Notes accompanying the annotated Rules.
. For this reason the Court of Federal Claims’s intent to conform its Rules to the case law and Advisory Committee notes accompanying the federal civil rules is unhelpful here. See Court of Federal Claims Rules, Foreward, Rules Committee Notes to 2002 Revision. But RCFC 56.1 is not without precedent. Although the Court of Federal Claims did not identify them as persuasive, RCFC 56.1 does have counterparts in the Rules governing practice in the United States Court of International Trade. See USCIT 56.1, 56.2 (providing for judgment upon an agency record).
. Although the Court of Federal Claims’s opinion in
JWK I
also erroneously stated that a typical Rule 56 summary judgment standard of review applied to judgment under RCFC 56.1, like this court’s
JWK II
opinion none of the trial court’s analysis turns on identifying the presence of a genuine issue of disputed fact.
See JWK I,