OPINION
This post-award bid protest is before the court on the parties’ cross-motions for judgment on the administrative record. Plaintiff, NEQ, LLC, contends that in awarding a contract for emergency and rapid response services (ERRS), the Environmental Protection Agency (EPA) relied upon an unstated evaluation factor and otherwise acted in an arbitrary and capricious fashion. After careful consideration of the briefs and other materials filed by the parties, the oral argument, and for the reasons discussed below, the court DENIES plaintiffs motion for judgment on the administrative record and instead GRANTS defendant’s and defendant-intervenor’s cross-motions.
On September 27, 2007, the EPA issued request for proposal PR-R5-07-10015, contemplating the award of an indefinite-delivery/indefinite-quantity, time and materials ERRS contraсt. The contract was to have a three-year base period, with two potential option terms of two years each, for a maximum contract period of seven years. The estimated value of the contract was approximately $105 million. The RFP required the award to be made to the offeror proposing the best value to the government in accordance with the stated evaluation criteria.
The purpose of the contract, according to the Statement of Work (SOW), was “to provide fast responsive environmental cleanup services for hazardous substances/wastes/contaminants/ materials and petroleum products/oil for Region 5 (Illinois, Indiana, Ohio, Michigan, Wisconsin, and Minnesota).” “[Environmental cleanup response to natural disasters and terrorist activities,” the SOW advised, might also be required under the contract. The SOW contemplated three categories of response action, expressed with decreasing levels of urgency: (a) “emergency,” which required immediate response; (b) “time-critical,” which required a response within six months of notification; and (c) “non-time critical,” which required a response greater than six months after notification. In each instance, the contractor, in response to a task order for services, was to provide personnel and equipment for multiple tasks, including, “emergency response, sampling, monitoring, site stabilization, controlling spilled material, waste treatment, restoration, removal actions, transportation and disposal.”
The SOW containеd detailed requirements and performance standards for response services. It emphasized the need for quick emergency response times to nine large metropolitan areas located within Region 5, specifying—
For emergency response actions requiring immediate mobilization to the site, the contractor will be required to be en route within two (2) hours and arrive at the site no later than four (4) hours for the metropolitan areas listed below.
1. Chicago
2. Detroit
3. Minneapolis
4. Cleveland
5. East St. Louis
6. Cincinnati
7. Milwaukee
8. Indianapolis
9. Columbus
“For non-metropolitan areas,” the SOW further indicated, “the contractor will be required to be en route within (2) two hours and arrive at the site no later than (6) six hours.” The contractor was afforded eight hours to reach the Upper Peninsula of Michigan and Northern Minnesota.
The RFP listed four factors, each with several “significant” subfactors, that would guide the agency’s evaluation, with respective point values assigned, as follows:
Factor 1. Corporate (40 Points)
Subfactor a. Technical Management (10 points)
Subfactor b. Business Management (10 points)
Subfaetor c. Personnel (10 points) Subfaetor d. Contract Management Ability (10 points)
Factor 2. Response Capabilities (30 Points)
Subfaetor a. Response Experience (10 points)
Subfactor b. Response Network (20 points)
Factor 3. Technical Ability (30 Points)
Subfactor a. Pop Quiz (5 points)
Subfactor b. Time Critical Scenario (15 points)
Subfactor c. Emergency Response Scenario (10 points)
Factor 4. Past Performance (10 points)
Regarding the relative weight of these factors, section M stated that “[f]or this solicitation, all evaluation factors other than cost or price when combined are more important than cost or price.”
The RFP again reflected the importance of prompt response times in describing Factor
Section M provided for a technical evaluation panel (TEP) to evaluate the various factors, using the following scale:
Rating Rating Criteria__
5 The response to the factor is superior in most features._
4 The response to the factor is good with some superior features. Information provided is generally clear, and the approach is acceptable with the possibility of more than adequate performance._
3 The response to the factor is adequate. Overall, it meets the specifications and requirements, such that the TEP believes that the offeror could perform to meet the Government’s minimum requirements_
2 Information related to the factor is incomplete, unclear, or indicates an inadequate approach to, or understanding of the factor. The TEP believes that there is question as to whether the offeror would be able to perform satisfactorily.
1 The factor is addressed, but contains deficiencies and/or weaknesses that can be corrected only by major or significant changes to relevant portions of the proposal, or the factor is addressed so minimally or vaguely that there are widespread information gaps. In addition, because of the deficiencies, weaknesses, and/or information gaps, serious concerns exist on the part of the Technical Advisory _Panel (TEP) about the offeror’s ability to perform the required work._
0 The factor is not addressed or is totally deficient and without merit.
These ratings were to be converted to point scores using a sliding scale set forth in the RFP (e.g., a TEP rating of 5 would lead to an award of 100 percent of the available points, 4 would lead to an award of 80 percent of the available points, 3 would lead to an award of 60 percent of the available points, etc.).
On October 29, 2007, EPA received three timely proposals from the following offerors: NEQ, a joint venture between NEIE, Inc. and Environmental Quality Management, Inc. (EQM); LATA-KEMRON Remediation (L-K), a joint venture between Los Alamos Technical Associates and KEMRON Environmental Services, Inc.; and LEEDI, a joint venture between Lee & Ryan and Environmental Design International. On November 15-17, 2007, the TEP heard oral presentations from the offerors. On April 24, 2008, the contracting officer requested a competitive range determination to revisit the major weaknesses of the offers. Negotiations were held between May and July 2008. Between July 2-7, 2008, EPA received final proposal revisions from the offerors. On August 12, 2008, the TEP issued its final report.
On August 28, 2008, EPA issued a source selection document selecting L-K for the contract. The technical scores reflected in this document were as follows:
Evaluation Maximum Factors/Subfactors_Score_NEQ_L-K_LEEDI
1. Corporate_
la. Technical Management_10_8_8_6_
lb. Business Management_10_8_8_8_
lc. Personnel_10_8_8_8_
ld. Contract Management_10_8_8_10
2.Response Capability
2a. Response Experience 10
2b. Response Network 20 12 16 12
Factor 2 Total 30 18 24 18
3.Technical Ability
3a. Pop Quiz
3b. Time Critical 15 12 12
3c. Emergency Response 10
Factor 3 Total 30 21 17 19
4.Past Performance
Factor 4 Total 10
Grand Total Scores 110 79 81 77
As was anticipated by the RFP, the TEP focused heavily on the location of the contractors’ personnel and their ability to respond to emergencies. L-K’s proposal was the most expensive, but the agency deemed its higher price “a reasonable tradeoff for the decentralized response network, realistic labor mix, and balanced personnel matrix.”
On August 22, 2008, NEQ was advised that L-K had been selected for award. On September 2, 2008, NEQ filed a protest with the Government Accountability Office (GAO). It argued that the source selection document incorrectly inflated its price from $102,960,441 to $103,493,399 and had incorrectly stated that the RFP provided that all evaluation factors other than cost or price, when combined, were “significantly” more important than cost or price, despite the RFP not having used the quoted word. By letter dated September 15, 2008, the GAO advised that it had “carefully reviewed” the issues raised in the protest and had “concluded that corrective action [was] appropriate.” GAO dismissed NEQ’s protest as moot, based on representations that the agency would undertake voluntary corrective action. EPA issued a second source selection document on or about September 25, 2008, reflecting the two changes previously identified by NEQ. Nonetheless, after reexamination, on October 23, 2008, the agency again awarded the contract to L-K.
On Octоber 27, 2008, NEQ filed a second protest with the GAO, this time challenging the EPA’s evaluation of the Response Network subfaetor (2b). Specifically, it complained that: (i) the source selection document improperly stated that L-K had speciality subcontractors “readily accessible,” even though L-K had failed to provide letters of commitment from those subcontractors; and (ii) NEQ’s use of two laborers for emergency response had been declared a weakness even though the RFP listed two laborers as being the minimally acceptable number. Once more, EPA agreed to take corrective action and the GAO dismissed the protest as moot.
On or about January 22, 2009, EPA released a third source selection document, in which it deleted the reference to NEQ’s use of two labоrers as being a weakness and replaced the statement that the speciality contractors were “readily accessible” with one that stated that L-K had “noted a working relationship” with its specialty contractors. These changes did not result in any alteration of NEQ’s score under subfactor 2b or overall. L-K’s technical evaluation remained the same, with the agency concluding, inter alia, that it had a greater presence than NEQ in seven of the nine metropolitan areas listed in the RFP. Emphasizing the importance of the response network, the source selection document summarized the TEP’s extensive analysis of the number and
Response Managers Foremen Equipment Operators Laborers
CHICAGO
NEQ NONE 15
LATA-KEMRON
LEEDI NONE
DETROIT
NEQ NONE NONE NONE NONE
LATA-KEMRON NONE NONE
LEEDI NONE NONE
MINNEAPOLIS
NEQ NONE
LATA-KEMRON 33
LEEDI NONE
EAST ST. LOUIS
NEQ NONE NONE NONE NONE
LATA-KEMRON 4 10 85
LEEDI NONE NONE NONE NONE
CINCINNATI
NEQ 34 NONE 57
LATA-KEMRON 33
LEEDI NONE 12
MILWAUKEE
NEQ NONE NONE NONE NONE
LATA-KEMRON 1 NONE NONE
LEEDI NONE NONE NONE
INDIANAPOLIS
NEQ NONE NONE NONE NONE
LATA-KEMRON NONE NONE NONE NONE
LEEDI 10
COLUMBUS, OH
NEQ NONE NONE NONE NONE
LATA-KEMRON 10 18 18
LEEDI NONE NONE NONE NONE
The source selection document made a series of findings tied to this table. It found, for example, that “[t]he table reveals that NEQ has no direct presence in 6 of the 9 emergency response metro areas, LEEDI has no presence in 3 of the 9, and LATA-KEMRON has no presence in 2 of the 9,” noting that “[t]he Agency would realize a significant ben
The panel has concluded that LATA-KEMRON has the most thoroughly identified team subcontractor network, and the highest level of direct presence overall in the nine emergency response metropolitan areas. Having a thoroughly identified tеam subcontractor network and a higher level of direct presence in the emergency response metropolitan areas significantly benefits the EPA because response times are reduced. Note that the SOW 4-hour arrival time requirement for these metropolitan areas is the LATEST permissible arrival time. Earlier arrival times mean earlier start of cleanup actions and less impact on human health and the environment. Another benefit to having personnel located within the metro area is significant[] savings on per diem expenses during a time critical response. Time critical responses, unlike emergency responses, are planned, but have similar requirements. For example, Region 5 has recently had several residential sites in Minneapolis, Detrоit, and Chicago. Labor availability in these areas would have resulted in significant cost savings to the Government because per diem costs of approximately $200.00 per day would have been avoided.
Finally, it added that “[t]he panel also feels that LATA-Kemron has proposed a more realistic labor mix” — a reference, inter alia, to the mix between different types of supervisory, skilled and unskilled workers.
Based upon the offeror’s final proposal revisions, L-K’s total evaluated price of $105,149,346.00 exceeded NEQ’s price of $102,960,441.00, by $2,188,905, a difference of about 2.2 percent. Despite this, the agency awarded the contract to L-K for a third time, concluding that “awarding to LATA-Kemron would provide the greatest overall benefit to the Government.” Explaining its decision, the agency сompared L-K’s bid with that of NEQ stating, in part:
The most notable technical differences between these two proposals were under Factor 2, Response Capability, where LATA-KEMRON received higher scores (4 versus 3) for both subfaetors. The LATA-KEMRON team (prime contractor and its team subcontractors) offered a direct presence in seven of the nine emergency response metro areas, while the NEQ team offered a direct presence in three of those areas. In addition to an enhanced response network, LATA-KEM-RON also demonstrated better response experience. Moreover, LATA-KEMRON offered a more realistic labor mix than NEQ, whose proposal demonstrated a heavy reliance upon EQM personnel.
Ultimately, the agency concluded that while L-K’s “evaluаted price is approximately 2 percent higher than NEQ’s evaluated price,” “[t]his slight evaluated price premium is a reasonable tradeoff for the benefits of the decentralized response network, better response experience, and more balanced labor mix offered by LATA-KEMRON.” It thus decided that “in accordance with FAR 15.101(c), LATA-KEMRON represents a better value for the agency when compared to NEQ.”
NEQ filed a third protest with the GAO, which it voluntarily dismissed on February 19, 2009, in favor of filing suit in this court. That suit was filed on March 3, 2009. On
II. DISCUSSION
Before turning to plaintiffs claims, we begin with common ground.
A. Standard of Review
The Federal Circuit, in Bannum, Inc. v. United States,
Bannum’s approach to deciding motions for judgment on the administrative record evinces the limited nature of the review conducted in bid protests. In such cases, this court will enjoin defendant only where an agency’s actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
The aggrieved bidder must demonstrate that the challenged agency decision is either irrational or involved a clear violation of applicable statutes and regulations. Banknote Corp.,
B. Alleged Errors in the Evaluation Approach
It is with this basic analytical framework in mind that we now turn to the specific allegations of error here.
(1) Unstated Evaluation Criteria
Plaintiffs banner claim is that the EPA relied uрon an unstated evaluation criterion in rating the proposals here. It is “hornbook law that agencies must evaluate proposals and make awards based on the criteria stated in the solicitation.” Banknote Corp.,
That said, an agency still has “great discretion in determining the scope of an evaluаtion factor.” Forestry Surveys and Data v. United States,
Contrary to plaintiffs claims, it is readily apparent, in looking at the RFP as a whole, that metropolitan presence would be weighed in considering the merits of a technical proposal. First, as plaintiff admits, the RFP singled out, by name, nine large metropolitan areas in which the response time had to be no more than four hours. The RFP required that offerors demonstrate how these response times would be met, requiring them to include, in their technical proposals, charts and maps that revealed the location of their personnel. The combination of these requirements reasonably should have alerted the offerors to the agency’s intention to consider metropolitan presence in rating an of-feror’s technical proposal. See Maintenance Eng’s v. United States,
Moreover, despite plaintiffs claims to the contrary, it was also reasonably apparent from the RFP that those who had a greater metropolitan presence and could offer quicker response times than the mínimums specified would receive higher ratings. In the segment describing its rating system, the RFP plainly disclosed that proposals that reflected “the possibility of more than adequate performance” would be rated higher. That is exactly how the agency rated the Response Network subfactor. And there is no indication that this application of the rating system was arbitrary or capricious. See PGBA,
That EPA would focus on metropolitan presence in evaluating and rating the proposals thus was plainly revealed in the RFP. And even were there room for debate on that count, there can be no bandying that an evaluator seeking the quickest response times for emergencies in large cities could be expected to review the responders’ proximity thereto. At the least, then, the latter consideration was intrinsic to the stated evaluation factors — which is enough to satisfy the disclosure requirements of the FAR. See Comprehensive Health Serv.,
To cinch matters, NEQ has failed to explain, in even the most general detail, how it would have changed its proposal had it “understood” that proximity to metropolitan areas was relevant and important. Plaintiff, of course, unhesitatingly claims that had it understood this, it would have stationed personnel in the various cities in which it lacked a metropolitan presence or bolstered its personnel in the cities where it had a limited presence. And it would have done so, plaintiff asseverates, even if that meant charging a higher price, provided the end result was obtaining an award here. But, of course, the aplomb with which plaintiff makes these representations comes from perfect 20-20 hindsight. In fact, plaintiff had no way of knowing how its price compared to that of its competitors at the time it was formulating its staffing proрosal and thus no way to know what effect increasing its price would have. Without that knowledge, there is no reason to believe that, had the importance of metropolitan presence been highlighted more in the RFP — at least to the extent that would satisfy plaintiff — NEQ would have submitted anything significantly different in terms of a staffing plan. And that leaves it ill-positioned to argue now that it was prejudiced by an unstated evaluation factor — a factor, of course, that the court believes was quite explicit.
Nor is there any indication that defendant acted in an arbitrary and capricious fashion either in adopting metropolitan presence as a criterion or in evaluating the proposals in this regard. Plaintiffs criticisms are considerably.; overblown and, at times, rely upon faсtual premises that are not borne out by the record. For example, plaintiff contends that it was irrational for EPA to favor having emergency responders located near large metropolitan areas because of the possibility that emergencies at those locations would impact the responders. But, this is far from apparent. And, at any rate, EPA had a different view, believing that such proximity translated into quicker response times and that quicker response times meant — in the words of the source selection documents — “less impact on human health and the environment.” While plaintiff might disagree, it requires more than its disagreement to demonstrate arbitrariness. See Che Consulting, Inc. v. United States,
(2) Other Assertions of Error
In the remainder of its briefs, plaintiff makes a number of other assertions of error.
For example, plaintiff asserts that, in its review of subfactor 2b, the agency improperly listed as a strength in L-K’s proposal its “working relationship” with three specialty subcontractors, “which could provide highly specialized expertise in the event of certain types of emergency responses.” On brief, plaintiff boldly asserts that LK “simply listed the names” of these subcontractors and should not have received credit for naming them in its proposal. The administrative record, however, says otherwise. It reveals that in the relevant sections of its proposal, L-K not only described in detail the work the subcontractors had performed on other EPA ERRS matters, but аlso specifically indicated that one of the affected subcontractors (IES) “had supported [it] on its Region 4 ERRS contract,” and that another (CMC) had worked with Kemron on other EPA ERRS contracts. And while L-K’s proposal does not list specific projects on which it had worked with the third specialty subcontractor (KCSI) involved, it recounted detailed information that plainly suggests that it had made contact with that subcontractor — a claim that the agency could reasonably believe given that Kemron, one of the partners in the L-K joint venture, had been the incumbent on four EPA ERRS contracts for EPA Regions 3 and 4. Moreover, the L-K proposal represented that “[e]ach subcontractor has assigned a [point of contact] to commit the resources of their representаtive firms.” In the court’s view, the information supplied by L-K reasonably allowed the EPA to conclude that it had “working relationships” with the subcontractors. Certainly, these were not, as plaintiffs counsel seemed to intimate at oral argument, names plucked from a phone book.
Plaintiff also complains that L-K failed to provide notices of intent for its specialty subcontractors. It claims that this was required by clause L.16(III)(D) of the RFP, which stated:
D. Subcontracts
Identify subcontractors or team subcontractors. The offeror shall submit notices of intent with their proposal. The successful offeror shall provide within five (5) calendar days of issuance of a notice of award, one copy of each proposed Team Subcontract agreement (when applicable).
Plaintiff contends thаt the requirement for submission of notices of intent applies to specialty subcontractors and “was a mandatory requirement of the Solicitation.” But, it is unclear whether the notice requirement applied to “specialty subcontractors” or only the “team subcontractors” envisioned under the RFP. Unlike specialty subcontractors, who were used for highly specific clean-up operations (e.g., recovering buried gas cylinders), team contractors had a broader role in the performance of the contract and, indeed, were subject to numerous requirements within the RFP, including the requirement for filing agreements mentioned above. None of those other requirements applied to the specialty subcontractors. That the offerors, indeed, did not believe that the “notice of intent” requirement applied to “specialty subcontractors” is perhaps best evidenced by the fact that, like its competitors, plaintiff did not provide such notices either. Plaintiff
Finally, plaintiff attempts to assault, on various grounds, the agency’s tradeoff decision. It contends first that the agency should not have used the “total offer price,” in making that comparison, but rather should have compared various components of those prices (comparisons, it asserts, that would have made its ease more compelling). In making that claim, however, plaintiff erroneously cites the portion of the RFP dealing with a price reasonableness analysis. In section M of the RFP, where the relevant language is actually found, the EPA made amply clear that “the Government will evaluate offers for award purposes by adding the total price for all terms to the total price for the basiс requirements.” And this is precisely what the agency did here. Moreover, while plaintiff suggests that the trade-off discussion here contains the sort of “eonclusory statements, devoid of any substantive content” that have been found lacking in other eases, see Serco, Inc. v. United States,
Plaintiff raises at least a half dozen other grounds for overturning the award here, most of which are glancing blows, some of which rely upon further factual misstatements or selective readings of the record — all of which, in the end, are unpersuasive. The court will not discuss these further.
C. Injunctive Relief
Even had plaintiff demonstrated that the instant procurement was legally
Seeking to explain away this glaring void in its presentation, plaintiff contends that it is not seeking an “injunction” here, but merely seeks a ruling requiring the agency to reevaluate the existing proposals in light of the requirements it believes were actually contained in the RFP. This claim, of course, is somewhat suspect for, presumably, if a reevaluation showed that its proposal was the best value, plaintiff would also want to perform this contract instead of L-K. But, even taking plaintiff at its word, the relief it is now requesting is clearly in the nature of an injunction and thus requires the multi-pronged showing that plaintiff has not provided. See Aberdeen & Rockfish R. Co. v. Students Challeng-Ing Regulatory Agency Proceedings,
III. CONCLUSION
The court need go no further. Measured by the appropriate standard of review, the EPA’s award decision here is not arbitrary, capricious or otherwise contrary to law. The relief requested by plaintiff, hence, is not appropriately granted.
In consideration of the above:
1. Plaintiffs motion for judgment on the administrative record is DENIED, and defendant’s and defendant intervenor’s cross-motions for judgment on the administrative record are GRANTED. The Clerk is ordered to dismiss the complaint.
2. This opinion shall be published as issued after August 7, 2009, unless the parties identify protected and/or privileged materials subject to redaction prior to said date. Said materials shall be identified with specificity, both in terms of the language to be redacted and the reasons for that redaction.
IT IS SO ORDERED.
Notes
. There is indication that the TEP table considerably overstated the number of NEQ personnel in the Cincinnati metropolitan area. NEQ’s proposal indicates that it had only 34 individuals in that area, rather than the 114 individuals the TEP listed on the chart.
. In this regard, the source selection document noted that the TEP had concluded that for:
• Chicago: There would bе marginal additional benefit by awarding to NEQ.
• Detroit: No additional benefit with any offeror.
• Minneapolis: There would be significant benefit awarding to LATA-KEMRON.
• Cleveland: None of the three contractors has presence directly in Cleveland.
• East St. Louis: There would be significant benefit awarding to LATA-KEMRON.
• Cincinnati: Even with questioning the numbers provided, there would be significant benefit awarding to NEQ.
• Milwaukee: No additional benefit with any of-feror.
• Indianapolis: There would be significant benefit awarding to LEEDI.
• Columbus, OH: There would be significant benefit awarding to LATA-KEMRON.
. Bannum was based upon RCFC 56.1, which, in 2006, was abrogated and replaced by RCFC 52.1. The latter rule was designed to incorporate the decision in Bannum. See RCFC 52. 1, Rules Committee Note (June 20, 2006); see also NVT Techs., Inc. v. United States, 73 Fed.Cl. 459, 462 n. 3 (2006); Bice v. United States,
. In Bannum, the Federal Circuit noted that, 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 genuinе 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.
Bannum,
. In Axiom, the Federal Circuit noted that the "supplementation of the record should be limited to cases in which ‘the omission of extra-record evidence precludes effective judicial review.'"
. As nоted by the Federal Circuit, “[pjrocurement officials have substantial discretion to determine which proposal represents the best value for the government.” E.W. Bliss Co. v. United States,
. See PHT Supply Corp. v. United States,
. On brief, plaintiff asserts that the TEP "gave credit to an offeror for having a direct ‘metropolitan presence’ even though that 'presence' consisted of having merely one laborer in the area.” But, the "offeror” cited by plaintiff was not L-K, but LEEDI. Accordingly, plaintiff can claim no prejudice as to this finding. Indeed, a review of the record strongly suggests that the agency im
. Absent a more specific instruction in this regard and a warning of potential disqualification, treating this language as establishing a mandatory minimum requirement likely would violate fundamental principles of federal procurement policy. See Northrop Grumman Corp. v. Goldin,
. Seeking to bolster its various arguments, plaintiff argues that metropolitan presence was "no[t] mention[ed] whatsoever” until this third evaluation. That is not true. This issue, in fact, was focused upon in both the competitive range determination (at Ex. 6, р. 001948) and in both the first and second source selection documents. Plaintiff also assails the portion of the trade-off discussion which notes that L-K’s more significant metropolitan presence would reduce per diem costs. Again, plaintiff challenges this finding with factual representations not found in the record (e.g., that the individuals responding to an emergency might not be those located in the surrounding metropolitan area). But, the court will not, without more, second guess the agency’s findings, particularly since the source selection decisions actually cite an example in which lower per diem costs might have been incurred had L-K previously been performing the contract.
. Plaintiff's counsel sought to address the other injunctive factors for the first time at oral argument. The court declined to allow him to do so, particularly since the other counsel involved indicated that they would have requested an opportunity to respond to plaintiff's arguments in writing.