OPINION AND ORDER
This is a post-award bid protest of a task-order contract for furnishing a barracks being built in Okinawa, Japan, for the U.S. Marine Corps (“Marine Corps” or “agency”). Among the items sought to be procured by the solicitation were 364 bed-units, comprised in part of “[mjetal pop-up beds with pneumatic rams or shock absorber[s].” The contract was awarded to DCI, Inc. (“DCI”), which in due course has delivered the furniture to a government warehouse in Okinawa, where the furniture remains pending issuance of instructions from the Marine Corps to DCI for installation in accord with the work required by the contract. After the Marine Corps accepted and paid for the furniture, but before installation, plaintiff Furniture by Thurston (“Thurston”) filed a bid protest in this court, alleging that the award was improper because DCI’s offered beds did not conform to the solicitation.
Over the course of the litigation, two issues came to the fore. The first is the contested meaning of the term “metal pop-up bed” in
FACTS
A. The Solicitation
On February 17, 2011, the Marine Corps issued Request for Quotation (“RFQ”) M67400-11-T-0031 for items on a General Services Administration (“GSA”) Federal Supply Schedule (“FSS”) contract.
The single most expensive item in the contract was the 364 beds, which together constituted 35% of the total contract price in the government’s independent cost estimate. See AR C-15. The solicitation called for “[p]op [t]op” beds, ie., a bed whose top can be lifted to access a storage space underneath. See, e.g., AR M-108 (depicting a “pop top” bed in both its “closed” and “opened” positions). The solicitation listed a number of required features or characteristics of the bed:
1. Pop Top Bed with Bookcase and Headboard — Category 1
• Pop-top Bed w/3 Drawers: size: Approximately 41"W x 82"L x 26"H[;]
• Storage Assembly: size: Approximately 11W D x 42'W x 64"H[;]
• Headboard features side pullout two shelf bookcase, carrel with upholstered eorkboard and plug strip outlet (surge protector) and light[;]
• Metal pop-up bed with two pneumatic rams or shock absorber (for even pull down control), thru-bolted thru end panels. Access handle to underbed storage shall be sturdyt;]
• Removable back storage bottom panel, minimum %" thick sanded plywood w/ 1%" dia .... ventilation holes[;]
• Side panels composed of veneer on %” panel[;]
• Left, right or reversible] assembly to allows bed to be setup dependant on room configuration[;]
• Metal powder coated gang lock to secure all three drawers and bed platform[;]
*509 • Solid Wood drawer fronts, with dovetail construction and 1001b tracking!;]
• 1" recessed back to accommodate electrical wall fixture!;]
• 18", Fluorescent Light with one outlet strip and minimum 12' cord. See lamps and lighting requirements!; and]
• Fabric covered tack board!.]
AR K-56 to -57 (emphasis added). As a result, the solicitation seemingly referred to the unit as a “!p]op [t]op [b]ed” and the bed itself as a “[m]etal pop-up bed.” AR K-56. In addition to providing specific attributes for the unit and the bed, the solicitation also stated that, for all sleeping unit furniture, “[a]ll tops and edges shall be high-pressure laminate on a 501b particleboard core with 3mm wood grain PVC edge banding or % wood edge banding and a backing sheet.” Id.
Besides the 364 beds, the solicitation called for approximately 2,450 other pieces of furniture, ranging from table lamps to entertainment centers. See, e.g., AR K-82 to -83. The other two contract line items were the delivery of the furnishings and their installation. AR K-70 to -71; see also AR C-16. These services were to be provided 120 days and 135 days after contract award, respectively. AR K-69.
The solicitation provided for a best-value procurement based on two factors: technical capability and price. AR K-74. Technical capability was significantly more important than price. Id. However, where competing quotes were substantially equal, price could become the controlling factor. Id. Each of-feror was also required to “clearly indicate any exceptions taken to the solicitation, or any unique approaches that may set the [o]f-feror’s quote apart from the others.” AR K-68.
B. The Award
In response to its solicitation, the government received proposals from Thurston, DCI, and [* * *] other contractors. See AR R-245; see also AR Tabs M, O, and Z. Per the solicitation instructions, Thurston and DCI submitted a technical quote with pictures, descriptions, and specifications for each type of furniture required under the contract. AR M-108 to -137; AR N148 to - 172; see also AR K-68.
In its proposal, DCI did not indicate that it had taken a unique approach or exception to the solicitation. To the contrary, its cover letter stated that the offering “conform[s] to the specifications in every way.” AR N-147. DCI included an image of its “pop top” bed in its technical quote. AR N-148. In the picture, the bed supports a mattress, which conceals the bed platform. Id. The product description did not specify the type of material used to construct the pop-up bed. However, at the very beginning of its technical quote, DCI stated that “[a]ll items are constructed of solid OAK.” Id.
[* * *] offerors, including Thurston and DCI, received an overall technical capability rating of [* * *] AR T-263.
Given that [* * *] of the proposals had equivalent ratings for technical competency, the agency looked to price to distinguish the offers. DCI proposed to perform the con
C. DCI’s Performance
Under the original terms of the contract, DCI was scheduled to deliver the furniture by July 22, 2011, i.e., 120 days after contract award. Compare AR U-270, with AR K-69. It would then install the furniture within 15 days of the delivery. Id. Because of delays in the construction of the barracks, the Marine Corps deferred these dates. Def.’s Opp’n to Pl.’s Mot. for a Prelim. Injunction & Mot. to Dismiss Compl. (“Def.’s Mot. to Dismiss”) Ex. A. (Decl. of Leverne Redfearn (Oct. 20, 2011)) (“Redfearn Deck”), ¶¶3-4.
Among the items delivered were the 364 “pop top” beds. Aside from a few metal components such as locks and pneumatic rams, the beds were made of wood. Def.’s Mot. to Dismiss, Cross-Mot. for Judgment upon the Admin. Record & Resp. to Pl.’s Mot. for Judgment upon the Admin. Record (“Def.’s Cross-Mot.”) at 13. Significantly, the bed platforms — which support the mattress and can be lifted to reveal the storage space beneath — are wooden.
D. Procedural Posture
Thurston submitted its protest to this court on October 12, 2011. Along with its complaint, Thurston filed an application for a temporary restraining order (“TRO”) and a motion for a preliminary injunction. The court held a hearing on the TRO application on October 17, 2012, and denied the application that same day. See Order of Oct. 17, 2011, EOF No. 13. Along with its response to Thurston’s motion for preliminary injunction, the government filed a cross-motion to dismiss the case. See Def.’s Mot. to Dismiss. The court deferred ruling on both of these motions such that it might consider them in concert with the parties’ cross-motions for judgment on the administrative record.
On November 22, 2011, approximately one month after this protest began, Thurston filed a voluntary petition for Chapter 11 bankruptcy. See Def.’s Cross-Mot. Ex. A; see also Pl.’s Reply in Support of Its Mot.
The parties completed briefing their cross-motions for judgment on January 4, 2012. The court held a hearing on the parties’ cross-motions on January 6, 2012, and the ease is now ready for disposition.
MOTION TO DISMISS
The government’s motion to dismiss raises a number of challenges to Thurston’s ability to bring this action. It argues that (1) Thur-ston has waived the ground of its protest because the solicitation was patently ambiguous and Thurston raised no objections to the solicitation before making its offer, (2) the ease is moot because DCI has already delivered the supplies at issue, (3) Thurston is barred by laches from bringing its protest, and (4) Thurston lacks standing given its recent filing of a bankruptcy petition under Chapter 11. Insofar as the latter three contentions raise jurisdictional issues, the court has considered evidentiary submissions outside the complaint and administrative record. See L-3 Commc’ns Corp. v. United States,
A The Meaning of the Term “Metal Pop-Up Bed ”
The government’s first argument for dismissal of Thurston’s protest rests upon the premise that the term “metal pop-up bed” is patently ambiguous. Under Blue & Gold Fleet, L.P. v. United States,
Here, the government contends that a patent ambiguity exists in the phrase “[m]etal pop-up bed with two pneumatic rams or shock absorber (for even pull down control), thru-bolted thru end panels.” AR K-56. The government’s contention requires the court to conduct a two-step analysis. First it must determine whether the term is ambiguous. NVT Techs., Inc. v. United States,
In determining whether rival interpretations of a solicitation are reasonable, the court must “begin with the plain language of the document.” Banknote Corp. of Am., Inc. v. United States,
The government argues that the specification of a “metal pop-up bed” requires that “the pneumatic parts ... be metal and not ... the platform.” Hr’g Tr. 21:3-6 (Jan. 6, 2012);
Thurston’s interpretation also gives the words their plain meaning. “Pop-up” is an adjective meaning “[d]esigned to pop up or having a component that pops up[; w]ith a mechanism which causes something to pop up.” 12 The Oxford English Dictionary 129 (2d ed. 1989); see also The American Heritage Dictionary of the English Language 1371 (5th ed. 2011) (defining “pop-up” as “[e]merging quickly from a recessed or concealed position when activated” or simply “[a] device ... that pops up”); Webster’s Third New International Dictionary 1766 (2002) (“of, relating to, or having a device that pops up”).
Because Thurston’s interpretation of the solicitation is the reasonable one and the government’s reading is not, the inquiry could end. Nonetheless, the court is mindful that a particular, special interpretation of the phrase “metal pop-up bed” might exist apart from that offered by the government, perhaps derived from usage among manufacturers and suppliers of furniture. That possibility is not borne out in this instance, however. In actuality, Thurston’s reading is validated by industry usage. Some of GSA’s schedule contractors, including Thurston, separately quote metal pop-up beds and wooden pop-up beds. See Pl.’s Reply in Support of Its Mot. for Prelim. Injunction & Opp’n to Def.’s Mot. to Dismiss Ex. G (Decl. of Michael Gittinger (Oct. 24, 2011)) (“First Gittinger Decl”), ¶¶ 6, 8. Notably, the pop-top bed with the metal platform is more expensive than its wooden counterpart. Id. ¶8. Although the eight offerors interpreted the specification for a “metal pop-up bed” in a variety of ways, none of them approached the agency for clarification.
The Marine Corps itself has shown an awareness of distinctions between and among various types of pop-up beds. According to the government, “Thurston’s specifications for its pop top bed product were originally used as the model for the [agency’s] description of its storage bed requirement.” Red-fearn Decl. ¶ 9. Among the terms adopted by the Marine Corps was the requirement for a metal pop-up bed. Id. at ¶ 10 (“[T]he term ‘metal pop[-up] bed’ [was] taken from the Furniture by Thurston specification for its product.”).
This origin of the term “metal pop-up bed” further emphasizes that, even if another industry definition of “metal pop-up bed” existed, any resulting ambiguity would be latent. Thurston can hai’dly be faulted for failing to question the Marine Corps’ use of the term “metal pop-up bed.” It had every reason to believe that its inteipretation was correct, because it had originally coined the phrase. Where, as here, an agency lifts a solicitation term from an offeror’s preexisting catalog and GSA FSS listing, it cannot redefine the term sub silentio and expect that offeror to realize the change.
B. The Consequences of DCI’s Delivery of the Furniture
The government next argues that the case is moot on the ground that the court cannot grant Thurston the relief it seeks. See Def.’s Mot. to Dismiss at 6-8; Def.’s Cross-Mot. at 9-10. Under the ease or controversy requirement of Article III of the Constitution, “[fjederal courts are without power to decide questions that cannot affect the rights of litigants in the ease before them.” DeFunis v. Odegaard,
The government’s mootness argument fails on two separate grounds. First, even if the court could not or would not grant injunctive relief, it could still fashion other relief in the form of bid preparation and proposal costs. See 28 U.S.C. § 1491(b)(2) (“To afford relief in [a bid protest], the [Court of Federal Claims] may award any relief that the court considers proper ... except that any monetary relief shall be limited to bid preparation and proposal costs.”). This court and others have refused to find a bid protest to be moot simply because injunc-tive relief might be inappropriate. See Gull Airborne Instruments, Inc. v. Weinberger,
Like the plaintiffs in those prior eases, Thurston has requested both injunctive relief and bid preparation costs. Compl., Prayer for Relief ¶¶ (b)-(e).
Second, even if one ignores the availability of bid preparation costs, the government has not shown that injunctive relief is impossible. Granted, the government has already received and paid for the bulk of the furniture, including the contested beds. Redfearn Decl. ¶¶ 4-6; Higa Decl. ¶ 12. Yet DCI has not yet installed the furniture in the barracks. Redfearn Deck ¶¶ 12-13; Higa Deck ¶ 13. The government relies on Gull Airborne,
C. Thurston’s Delay in Filing Its Protest
The government additionally raises the affirmative defense of laches. Laches requires the defendant to prove “(1) [that] the plaintiff delayed for an unreasonable and inexcusable amount of time in filing suit, and (2) that the defendant was prejudiced as a result of the delay.” Vita-Mix Corp. v. Basic Holding, Inc.,
Here, the government has failed to prove either element of the laches defense. First, the government has not demonstrated that Thurston delayed in filing suit after it knew or should have known about deficiencies in DCI’s bid. Thurston avers that it became aware of DCI’s failure to adhere to the specifications of the solicitation by DCI’s delivery of nonconforming furnishings for another contract which had specifications identical to the one in dispute here. See Compl. ¶¶ 15-25. Shortly thereafter, Thurston filed this protest. See also Ph’s Reply at 9.
When distilled to its essence, the laches defense is essentially that Thurston “could have learned that DCI’s product did not conform ... on March 24[, 2011] by simply looking online at the contents of DCI’s contract.” Def.-Intervenor’s Cross-Mot. at 11-12. The salient question then is whether Thurston was put on notice that it should have taken steps to examine DCI’s GSA FSS contract as of the date of the award at issue. The government has offered no proof that Thurston actually knew about the Marine Corps’ acceptance of an allegedly nonconforming offer from DCI at the time of award or that Thurston should have inspected DCI’s GSA schedule contract immediately after award.
Second, even if Thurston had tamed in bringing its protest, the government has failed to demonstrate that it was prejudiced by this delay. It claims that permitting Thurston to protest the procurement would result in serious economic harm to the agency, which has already paid DCI for the furniture it delivered.
Because the government has failed to prove that Thurston delayed in filing its protest or that it has suffered significant economic prejudice, its laches defense fails. The court will, however, consider the degree to which the protested procurement has already been completed in its analysis of the factors for injunctive relief. See CW Gov’t Travel,
D. Thurston’s Standing After Its Bankruptcy
Lastly, the government relies on Avtel Services, Inc. v. United States,
Thurston is not in the same hapless position as the protestor in Avtel. Although Thurston has filed for bankruptcy, it is not selling off all its assets. Instead, the company is reorganizing itself under Chapter 11 of the Bankruptcy Code. See Def.’s Cross-Mot. Ex. A. “[T]he purpose of a Chapter 11 Bankruptcy is not to liquidate the debtor but to ... facilitate the continued operation of the company so that it may improve its financial condition and eventually pay off all creditors.” Bender Shipbuilding & Repair Co. v. United States,
The court does not see any obstacle to Thurston’s standing, notwithstanding its Chapter 11 bankruptcy. Plaintiff “has established prejudice (and therefore standing), because it ha[s] greater than an insubstantial chance of securing the contract if successful on the merits of the bid protest.” Information Tech. & Applications Corp. v. United States,
JUDGMENT ON THE ADMINISTRATIVE RECORD
The parties’ cross-motions for judgment on the administrative record primarily turn on
It is blackletter law that a procuring agency may only accept an offer that conforms to the material terms of the solicitation. Centech Grp., Inc. v. United States,
Here, the solicitation unambiguously required a metal pop-up bed, which DCI did not offer. This specification was a material term because it had a non-negligible effect on the price of the beds. Thurston offers beds with either wooden platforms or metal platforms on its GSA schedule contract. First Gittinger Decl. ¶¶ 6, 8. The price of its metal models is $[* * *] more per unit than the price of the wooden ones. Id. ¶ 8. If the agency had properly articulated a desire for 364 wooden pop-up beds, Thurston mathematically might have lowered its quote by over $[* * *]. This price discrepancy is hardly negligible, considering that DCI’s winning bid was $[* * *] and it beat Thurston’s offer by a mere $[* * *]. Because DCI failed to comply with a material term of the solicitation, the agency could not legally accept it.
Even if the requirement for a metal pop-up bed were a latent ambiguity, the government would be in no better a position. Under the principle of contra proferentem, a latent ambiguity in a solicitation will be construed against the government. See Metropolitan Van & Storage, Inc. v. United States,
The government argues that, even if the solicitation did require a metal bed platform, the agency was justified in relying on DCI’s statement that its “offering will conform to the specifications in every way.” AR N-147. This contention is based on the Federal Circuit’s ruling in Allied Technology Group,
The government argues that, under the rule laid out in Allied Technology Group, the Marine Corps was entitled to rely on DCI’s representation that its offering was compliant. This argument fails in two respects. First, the contracting officials’ own affidavits demonstrate that they were not misled by DCI’s statement into believing that the proposal offered a conforming product, i.e., a metal pop-up bed. When the agency officials evaluated DCI’s proposals, they had no illusions about what was being offered: a pop-top bed with a wooden platform. See Higa Deel. ¶ 5 (“[T]he evaluation was conducted in a manner consistent with ... the [government's specifications for the [p]op [t]op [b]ed being made of wood with metal pn[eu]matic rams or shock absorbers.” (emphasis added)); Redfearn Decl. ¶ 10 (“The only metal parts required for the pop top beds are ... pneumatic rams or shock absorbers and metal powder coated gang lock.”); id. ¶ 7 (“[T]he pop top beds manufactured by DCI meet all the [gjovernment’s requirements and performance standards as stated in the Statement of Work.”). Because the agency did not “rely on [DCI’s representation] in determining whether to accept [its] bid,” Allied Tech. Grp.,
Second, even if the instant case did fit within the boundaries of Allied Technology Group, the government’s argument would still fail because other portions of DCI’s proposal indicated that the company was offering a wooden bed platform. “Where a proposal, on its face, should lead an agency to the conclusion that an offeror could not and would not comply” with a specification, that noncompliance is properly the subject of a bid protest. Allied Tech. Grp.,
Having found that the Marine Corps’ decision to award the procurement contract to DCI was contrary to the solicitation, the question of the appropriate remedy arises. In deciding whether to issue a permanent injunction, the court must consider four factors: (1) whether the plaintiff has succeeded on the merits of its ease; (2) whether the plaintiff will suffer irreparable harm absent injunctive relief; (3) whether such harm would outweigh the harm to the government and the defendant-intervenor; and (4) whether an injunction would serve the public interest. E.g., Angelica Textile Servs., Inc. v. United States,
The court has repeatedly held that “the loss of potential profits” from a government contract constitutes irreparable harm. E.g., BayFirst Solutions, LLC v. United States,
The injury to Thurston is not the only consideration before the court, however. A balance must be struck between the harm to plaintiff and that to the United States and DCI. The harm to the government has two dimensions. An injunction will delay the use by the Marine Corps of a new barracks and might require the Corps to expend many hundreds of thousands of dollars for redundant furniture. At times, such considerations are outweighed by the strong interest in “conducting] the procurement in a lawful manner.” DGR Assocs., Inc. v. United States,
In this instance, however, the court has a mandate to give “due regard to the interests of national defense and national security.” 28 U.S.C. § 1491(b)(3). Affidavits from offi
The second consideration is the economic harm to the government and waste of resources. This is not the typical case where the only economic injury to the government is the “burden of reprocurement costs.” See Huntsville Times Co. v. United States,
This court has recognized that “when a contract has been substantially completed, it is impossible, or at the least imprudent, for the court to order that the contract be rebid to a more desirable bidder.” Forestry Surveys,
The last factor is the public interest. It is, of course, a truism that “[t]here is an overriding public interest in preserving the integrity of the procurement process by requiring the government to follow its procurement regulations.” Turner Constr. Co. v. United States,
In light of the circumstances, the court finds that injunctive relief is inappropriate in this case. Although Thurston has prevailed on the merits and will lose its ability to compete for the contract on a fair basis, an injunction at this late stage of the procurement would exact too great a harm on the government and would not serve the public interest. Self-restraint is advisable in all bid protests, but it is all the more compelling here, where the awardee has already performed the bulk of the contract. See, e.g., Gull Airborne,
CONCLUSION
For the reasons set forth above, Thur-ston’s motion for judgment on the administrative record is GRANTED in part and DENIED in part. The government’s and DCI’s cross-motions for judgment on the administrative record are also GRANTED in part and DENIED in part. Thurston’s motion for a preliminary injunction is DENIED, as is the government’s motion to dismiss. Although Thurston is denied injunctive relief, it shall recover its reasonable bid preparation and proposal costs. Thurston shall submit a reckoning of its bid preparation and proposal costs on or before March 8, 2012. The government shall respond to Thurston’s submission of such costs by March 26, 2012.
It is so ORDERED.
Notes
. Because this opinion and order might have contained confidential or proprietary information within the meaning of Rule 26(c)(1)(G) of the Rules of the Court of Federal Claims ("RCFC”) and the protective order -entered in this action, it was initially filed under seal. The parties were requested to review this decision and to provide proposed redactions of any confidential or proprietary information on or before February 23, 2012. The resulting redactions are shown by asterisks enclosed by brackets, i.e., T * *]•”
. The recitations that follow constitute findings of fact by the court drawn from the administrative record of the procurement and the parties’ evidentiary submissions. See Bannum, Inc. v. United States,
. "The Federal Supply Schedule program, pursuant to 41 U.S.C. [§ ] 259(b)(3)(A), provides [f]ed-eral agencies with a simplified process of acquiring commercial supplies and services in varying quantities while obtaining volume discounts. Indefinite-delivery contracts are awarded using competitive procedures to firms. The firms provide supplies and services at stated prices for given periods of time, for delivery within a stated geographic area.” 48 C.F.R. § 38.101(a). Government agencies then issue task and delivery orders against the contracts. See John Cibinic, Jr., et al., Formation of Government Contracts 1143-45 (4th ed. 2011).
.The administrative record is comprised of lettered tabs with consecutive pagination independent from the tabs. Thus, "AR T-260” reflects a part of Tab T which is the 260th page from the beginning of the entire administrative record.
. The proposals were evaluated using five possible ratings: excellent, very good, good, marginal, and unsatisfactory. E.g., AR P-213. No offeror received a rating above [* * *] AR R245, -246; AR T-263. The two evaluators initially rated Thurston’s technical capability as [* * *] AR R-245; see also AR 0-174 to -176 (evaluation of Tomoya Gima); AR 0-178 to -180 (evaluation of Daniel Batenhurst). The main criticism of both evaluators was that Thurston failed to specify how many pieces of each type of furniture it would provide. E.g., AR 0-180 (noting as a weakness that there was "no sep[a]rate listing from vendor indicating q[uanti]ty"). In fact, Thurston had submitted this information as part of its proposal. See AR M-96. It appears that the agency simply omitted this list when it forwarded a redacted copy of Thurston’s proposal to the evaluators. See AR Tab O. Sometime before award, however, the agency learned of its mistake. The business clearance memorandum, signed March 24, 2011, reflects a rating of [* 31 *] for Thurston. AR T-263; see also AR T-264 to -265 (listing evaluators’ concerns regarding Thurston's quote, none of which relates to quantity).
. The court has considered three declarations provided by the government for their relevance to relief, not as additions or supplements to the administrative record of the procurement decision. See Holloway & Co. v. United States,
. Although not material to the disposition of this protest, Thurston reportedly learned of DCI’s wooden beds in connection with a separate solicitation. Several weeks after issuing RFQ M67400-1 l-T-0031, the Marine Corps issued solicitation M67400-1 l-T-0039 to acquire furniture for a different barracks. Compl. Ex. 3; see also Compl. ¶ 15. Both solicitations required the contractor to furnish a "[m]etal pop-up bed.” Compl. Ex. 3, at 10. DCI received this second task-order contract as well and subsequently delivered and installed the furniture. Compl. ¶¶ 16-17. The beds delivered for this contract were made almost entirely of wood. Compl. ¶ 21. Thurston discovered this fact and confirmed its findings by consulting DCI’s GSA website, which did not list a pop-top bed with a metal frame. Def. Mot. to Dismiss Ex. D (Aff. of Michael Gittinger) (Oct. 17, 2011), ¶¶ 8-9.
. As described earlier, Thurston’s protest relates to the award of a task order, and the court notes that it generally does not have jurisdiction over awards of task orders. See 10 U.S.C. § 2304c(e)(l) ("A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for [enumerated exceptions].”). Nonetheless, this statutory constraint does not apply to the court’s jurisdiction over protests of task orders under GSA FSS contracts, such as the one underlying the dispute in this case. See IDEA Int’l, Inc. v. United States,
. Typically, patent ambiguities take the form of "major omissions, obvious discrepancies, or manifest conflicts in a solicitation’s provisions.” Rotech Healthcare Inc. v. United States,
. The date of the hearing will be omitted from all further citations to the hearing transcript.
. At points in its briefing, the government appears to take the alternative position that the adjective "metal” in the solicitation does not refer to "pop-up bed” but rather modifies the phrase "two pneumatic rams or shock absorber.” See, e.g., Def.'s Cross-Mot. at 13. However, this interpretation contravenes elementary rules of grammar and is even less credible than the notion that the pop-up bed is just the lifting and lowering apparatus. The adjective "metal" is placed directly before, and thus modifies, the phrase "pop-up bed.” See John C. Hodges, et al., Harbrace College Handbook 13 (12th ed. 1994) ("Generally, adjectives appear immediately before the words they modify.”). One could make an argument that "metal” describes both the pop-up bed and the components listed thereafter; but the court cannot accept a reading in which the adjective modifies only the pneumatic rams and shock absorber. If the agency wished to convey this concept — i.e., that the pneumatic rams or shock absorber must be metal but not the pop-up bed — it could have simply stated a requirement for a "pop-up bed with two metal pneumatic rams or a metal shock absorber.”
. The government characterizes Thurston’s interpretation as requiring the entire bed to be composed of metal, with no wooden components whatsoever. See Hr’g Tr. 6:19-20 ("[U]nder [plaintiff’s] interpretation, it was supposed to be an all metal bed.”). This is not an accurate description of Thurston’s position, however. Plaintiff reads ”[m]etal pop-up bed” to encompass the bed platform and "the portion of the bed which permits it to swing up.” Pl.’s Opp’n at 6; see also Hr’g Tr. 27:16-17 (“[T]he government has raised a red herring about an all metal bed.”).
. In their affidavits, the agency contracting officials routinely ignored this distinction. See Higa Deck ¶¶ 8, 10 (misquoting the solicitation as requiring a ”[m]etal pop top bed with two pneumatic rams or shock absorbers”) (emphasis added); Def.’s Reply to Mot. to Dismiss Ex. B (Deck of Dennis James Walp (Oct. 31, 2011)), ECF No. 25-2, ¶ 7 (same). If they misread the solicitation as requiring a pop-top bed with a metal pop-top bed, that might explain their insistence that the term was patently ambiguous.
. ”[T]o establish the common or plain meaning of a word or term, this court has long accepted dictionary definitions.” Washington State Dep't of Servs. for the Blind v. United States,
.Even if "metal pop-up bed” were ambiguous, it would not be patently so. There is no "facial inconsistency” between the requirement for a metal pop-up bed and any other term in the solicitation. See LAI Serv’s., Inc. v. Gates,
. Two of the offerors specifically proposed a metal pop-up bed. AR M-108; AR Z-616. Four offered wooden bed platforms. AR N-148; AR Z-603, -653, -725. The other two did not explicitly identify the material of the bed platform. AR Y-567; ARZ-783.
. As a general rule, the court evaluates the patency of an ambiguity using the objective standard of a reasonable contractor, without regard for the contractor’s actual knowledge. See Line Gov’t Servs.,
. In its prayer for relief, Thurston asked the court to award it bid preparation costs "under the Equal Access to Justice Act.” Compl., Prayer for Relief ¶ (e). The form of this request is flawed, because the Equal Access to Justice Act ("EAJA”) makes no provision for bid preparation costs. See 28 U.S.C. § 2412. Rather, the court may award bid preparation costs under the Tucker Act. 28 U.S.C. § 1491(b)(2). See generally
. Technically, a party can prevail on a laches defense by showing either economic harm or some injury to its ability to mount a defense. E.g., Magnum Opus Techs., Inc. v. United States,
. For this same reason, DCI cannot cast its wooden bed platform as a “unique approach" to fulfilling the government's needs. See, e.g., Def.-Intervenor’s Cross-Mot. at 10. The solicitation permits offerors to "clearly indicate any exceptions taken to the solicitation, or any unique approaches that may set the [o]fferor’s quote apart from others.” AR K-68 (emphasis added). The court discounts the government’s claim that this clause permits the agency to waive a material requirement for a single offeror. See Alfa Laval Separation, Inc. v. United States,
. Even absent this countervailing evidence, there is a question whether the agency could properly rely on DCI’s representations at all. In Allied Technology Group and in Spectrum, the agencies relied on very specific certifications made by the offerors. See Allied Tech. Grp., 649
. The Government Accountability Office has declined to set aside awards of substantially performed contracts, even when the product received by the agency was materially noncompli-ant. See Infrared Techs. Corp., B-255709-2, 95-2 CPD ¶ 132,