OPINION
In this bid protest ease, Reema Consulting Services, Inc. (Reema) challenges actions taken by the United States Army, Edgewood Chemical Biological Center (ECBC) in regards to a contract to provide environmental sciences support services. It seeks both in-junctive relief and an award of bid preparation and proposal costs. The parties have filed cross-motions for judgment on the administrative record. For the reasons that follow, the court DENIES plaintiff’s motion for judgment on the administrative record and GRANTS defendant’s cross-motion. It finds that plaintiff is entitled to neither in-junctive relief nor bid preparation and proposal costs.
I. BACKGROUND
The administrative record in this ease reveals the following:
On July 16, 2009, ECBC issued Request for Proposals (RFP) No. W911SR-09-R-0018 for a contract to provide environmental, safety, health, and research support for operations at ECBC.
Under the RFP, each offeror’s proposal was to consist of three volumes, each dedicated to an evaluation factor: (i) technical/management; (ii) past performance; and (iii) cost. In the technical/management and cost volumes, offerors were to respond to two sample evaluation tasks; ECBC reserved the right to issue task orders for those two tasks at the prices proposed by the contract awar-dee. Task 1 involved support for the Environmental Monitoring Laboratory through
Section L.3.1 of the RFP, which listed the requirements for the technieal/management part of the proposal, required each offeror to include certain “UNCOSTED information that will be used to determine cost realism” for each of the two evaluation tasks. The “UNCOSTED information” was to include, inter alia, “[a] detailed breakdown of equipment and materials, as appropriate, identifying specific equipment and showing specific materials that will be required,” as well as the “[e]stimated quantities for materials and equipment.” The “UNCOSTED information” was to “correlate with the information submitted in accordance with [the cost volume].” The offeror was also to discuss the facilities that it and its subcontractor would use to perform work off-site, a personnel plan, a management plan, and information on its proposed approach.
Section L.3.3 of the RFP established the requirements for the cost portion of the of-ferors’ proposals. It began by stating that “[s]ubmission of cost or pricing data is not required.” Nevertheless, it instructed offer-ors to “prepare a cost proposal which shall include a breakout of cost and fee for evaluation tasks 1 and 2, and provide information other than cost and pricing data that is adequate for evaluating the reasonableness of the price and determining cost realism.” It emphasized that “THE BURDEN OF PROOF AS TO COST CREDIBILITY RESTS WITH THE OFFEROR.” This section of the RFP further advised that “[t]he offeror must furnish supporting breakdowns for each cost element within each task” for a variety of “basic cost elements,” including “Materials. Specify type, quantity, unit cost, total cost, and overhead.”
The section of the RFP that described Task 1 indicated, at several points, that the government would furnish certain materials to the contractor. By way of example, section 6.0, entitled “Government Furnished Property or Assistance,” stated that “[t]he Government will provide the ... laboratory and laboratory facilities located in [certain specified buildings and] the necessary and type of equipment to perform specified requirements outlined in this task order.”
3.8 Equipment Purchase. The Contractor shall purchase necessary equipment and supplies required to maintain and continue safe, efficient and effective operations on site. This requirement may occur when equipment malfunctions or become [sic] inoperable on-site or during nonworking hours and need [sic] to be replaced. Equipment and supplies shall be closely coordinated with Government personnel. However, approximately $6,000.00 per month may be expected to be spent on materials and supplies in support of this task.... The Government will reimburse the Contractor for actual costs accrued.
The contractor was required to submit periodic status reports concerning its expenditures for supplies and equipment.
Section M of the RFP indicated that the “[a]ward will be made to the responsible offeror whose proposal conforms to the solicitation requirements and represents the best value to the Government using the tradeoff process.” The tradeoff process permitted “tradeoffs among the specific evaluation factors and will allow award to other than the lowest priced offeror or other than the highest technically rated offeror.” The RFP listed three evaluation factors: (i) technical/management; (ii) past performance; and (iii) cost. Under the technical/management factor, each offeror was to be evaluated on four subfactors: (a) proposed approach; (b) personnel plan; (c) management plan and tools; and (d) facilities. The technical/management factor was “significantly more important than the Past Performance Factor, which is more important than the Cost Fac
With respect to the cost factor, the RFP indicated that “[t]he Government will evaluate the offeror’s proposed eost/priee for realism, reasonableness, and completeness.” It indicated that the proposals for evaluation Tasks 1 and 2 would “be evaluated on the probable cost of performance.” For cost realism purposes, the latter cost was defined as “the Government’s best estimate of contract cost resulting from the offeror’s proposal,” which could “involve an adjustment of the [offeror’s] proposed cost, and fee, whenever it is determined that the proposed cost does not reflect the probable cost of performance.” “Any adjusted cost will represent the Government’s estimate of probable cost that will be used in the final evaluation to determine best value.” This segment then provided guidance on how the cost realism, reasonableness, and completeness analyses would be performed, stating as to the last of these that “[t]he Government will evaluate cost completeness to determine if the costs are complete in terms of adequacy of the identification, estimation, and support of all relevant costs.”
On August 24, 2009, three offerors — Ree-ma, Bowhead Systems Management, Inc. (Bowhead), and the eventual awardee, SM Resources Corporation, Inc. (SMRC) — submitted proposals in response to the RFP.
The cost volume of Reema’s proposal indicated that it would “purchase the necessary equipment and supplies, such as gases, cylinders, uniform shoes, etc.,” adding that “[t]he materials cost has not been included in the cost calculations as the quantities will be requested by the Government.” Reema’s cost volume also included a chart with a cost summary for the two evaluation tasks; with respect to Task 1, this chart left blank the item for “Direct Material/Equipment.” Like Reema’s proposal, SMRC’s cost volume contained a generic list of equipment that SMRC would purchase. However, unlike Reema’s proposal, SMRC included $6,000 per month for “Other Direct Costs,” thereby incorporating in its costs for its Task 1 proposal a figure corresponding to the estimate for equipment purchases that had been set forth in section 3.8 of the RFP.
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The subgroup’s evaluation report identified various strengths and weaknesses regarding Reema’s proposal — as it had with the other offerors’ proposals — but did not mention the equipment and materials requirement for Task 1. Reema was awarded a “satisfactory” rating for overall merit in the technical/management subgroup’s report. By comparison, SMRC received the same technical/management merit ratings as Reema, except that SMRC received a “good” rating under the personnel plan subfactor. For proposal risk, Reema received a “moderate risk” for its personnel plan, leading it to receive a “moderate risk” on its overall proposal. By comparison, SMRC received “low risk” ratings for the technieal/management factor and its subfactors.
On March 24, 2011, the teehnical/management subgroup produced a cost realism report. The subgroup used information gleaned from the technical/management volumes to “evaluate[] the realism” of the offerors’ “uneosted information.” The report was intended to assist the cost subgroup in determining whether the proposed costs were realistic and whether the offeror understood ECBC’s requirements and could support the proposed technical performance. The cost realism report stated, with respect to Ree-ma’s Task 1 equipment and materials proposal, that “[n]o additional direct material costs were presented for consideration in this proposal. The RFP indicates that $6,000 per month may be expected to be spent on materials and supplies in support of this task.” It further found that Reema had “successfully demonstrated a realistic amount of resources for the technical approach proposed,” and “an adequate understanding of the Government’s requirements.” But, it caveated that Reema “references the need to provide mate
On April 28, 2011, the cost subgroup produced a cost analysis report. In this report, the cost subgroup “reviewed the Teehnical[ ] Subgroup’s evaluation along with the other price aspects of each proposal to assist the Contracting Officer in determining if the price is fair and reasonable.” The cost subgroup adjusted proposed costs for Tasks 1 and 2 to arrive at the “most probable cost.” While Reema proposed an overall cost of $783,089.40, the cost subgroup adjusted this figure to arrive at a “most probable cost” of $968,132.64. Part of this adjustment for Task 1 refleeted Reema’s failure to include the estimated material cost of $6,000 per month as was indicated in the RFP. With respect to Reema’s proposal, the cost subgroup stated: “No direct material costs were presented for consideration in this proposal. The offeror references the need to provide material in the proposal but does not actually present any direct material costs.”
On May 2,2011, ECBC forwarded a source selection evaluation team report to the source selection authority (SSA), summarizing the results of the subgroups’ reports. On September 22, 2011, the SSA produced a source selection decision. In her decision, the SSA modified the findings made by the various subgroups. She adjusted Reema’s “most probable cost” down to $882,097.16, but kept in that figure the amount attributable to the Task 1 estimated material cost of $6,000 per month, as was indicated in the RFP. The SSA also adjusted Reema’s adjectival rating on the proposed approach subfactor under the technical/management factor. In this regard, she observed:
After reviewing the cost realism analysis and their suggested adjustments for failing to provide materials in the cost portion of their proposal along with their statement that “The materials cost has not been included in the cost calculations as the quantities will be requested by the Government”, my opinion is that it is a deficiency. In addition, the [RFP] and paragraph L.3.1.1.5.1.2 require a detailed breakdown of equipment. It is my opinion that this rating should be unsatisfactory since it fails to meet the minimum RFP requirements.
The SSA also assigned Reema a deficiency for failing to include a breakdown of materials and their cost in its cost volume. Noting that the “proposed approach was the most important sub factor,” the SSA posited that “having an Unsatisfactory rating and deficiency for the most important sub factor renders the entire factor Unsatisfactory.” Finally, the SSA raised the risk profile for Reema’s proposed approach subfaetor from “low risk” to “high risk” because Reema failed to include “a detailed breakdown of equipment ... in their proposal.”
Despite the fact that SMRC’s proposal likewise failed to provide a “breakdown of equipment,” the SSA adjusted neither its ratings nor its risk assessments. The SSA did adjust SMRC’s price back to the original proposed cost ($830,354.81).
As a result of these adjustments, the SSA’s final ratings and risk assessments were as follows (with changed ratings in bold):
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In her tradeoff analysis, the SSA found that “SM Resources has provided the government with the highest rated technical noncost proposal” and “had the lowest rated cost.” Based on her review, she concluded “that SM Resources Corporation offers the best overall value to the Government and should receive the award.” On September 22, 2011, ECBC awarded the contract to SMRC.
On September 26, 2011, the contracting officer (CO), acting as the SSA, notified Ree-ma of the award to SMRC. On September 27, 2011, ECBC issued its first task order to SMRC. On September 30, 2011, Reema filed a protest with the CO, claiming that SMRC was not small for the procurement and was, therefore, ineligible for award. The CO forwarded this protest to the SBA, which, on December 29, 2011, sustained the protest. On January 13, 2012, SMRC and the CO appealed this ruling to the SBA’s Office of Hearings and Appeals (OHA). On January 26, 2012, the CO prepared a memorandum discussing whether to proceed with the contract in light of the SBA’s decision.
Following this affirmance, ECBC determined that it would neither issue any new task orders under the contract nor trigger any of the options on the existing task orders (leaving them to expire in late February 2013). On May 10, 2012, ECBC requested that this environmental sciences support services contract be removed from the SBA’s 8(a) program. On July 2, 2012, ECBC issued a Request for Information (RFI) seeking white papers from entities interested in pro
Meanwhile, on June 22, 2012, Reema filed its complaint in this court. On July 20, 2012, Reema filed a motion for judgment on the administrative record. On August 10, 2012, defendant filed a cross-motion for judgment on the administrative record. After briefing on these motions was completed, the court, on September 7, 2012, conducted oral argument on the cross-motions.
II. DISCUSSION
Like the Roman God Janus, plaintiff concurrently looks backward and forward in requesting relief.
For reasons that will become apparent, the court will analyze this ease by focusing on the requested relief, beginning with plaintiffs claim seeking injunctive relief.
A. Injunctive Relief
In its motion for judgment on the administrative record, plaintiff argues that the court should prevent ECBC from continuing with performance of the 8(a) contract at issue because that award was made to a company that the SBA has held is ineligible for award. As further basis for setting aside this award, Reema argues that ECBC did not fairly review its proposal consistent with the criteria used to evaluate other offers. ECBC, however, has agreed to terminate the existing contract as of late February 2013, when several pending task orders expire. And, with the approval of the SBA, ECBC also has agreed to reprocure the services in question not as an 8(a) procurement, but rather as a small business procurement.
These actions have left this case in an unusual posture, essentially turning the in-junctive portion of this ease into a review of the corrective action proposed by ECBC, i.e., the termination of the existing contract and the proposed reproeurement of the services in question. This court has jurisdiction to review whether an agency’s corrective action is ‘“reasonable under the circumstances’” and “ ‘appropriate to remedy the impropriety.’” ManTech Telecomms. & Info. Sys. Corp. v. United States,
For its banner claim, plaintiff challenges ECBC’s interpretation and implementation of 13 C.F.R. § 121.1009(g)(2)(iii). That provision states that “[i]f [the SBA’s OHA] affirms the size determination finding the protested concern ineligible, the contracting
Fust, in admirable candor, Reema admits that the support services in question are essential to the performance of critical defense tasks and that ECBC could not terminate the contract immediately without providing an interim plan for continuing those services. Second, it concedes that the timing of the reprocurement planned by ECBC is roughly the same as what it would expect were this court to adopt plaintiffs interpretation of the regulation and issue an injunction. Finally, Reema makes no pretense that it is entitled to provide the services in question on an interim basis, before the reprocurement occurs, recognizing that the agency has a variety of options in deciding how to bridge this gap. The net effect of these admissions is to suggest that the agency is doing voluntarily what Reema would have this court command. Unfortunately for plaintiff, this scenario raises questions as to whether Ree-ma has standing to pursue injunctive relief challenging ECBC’s proposed corrective action here.
This court has “jurisdiction to render judgment on an action by an interested party objecting to ... 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). Interested parties are those “prospective bidders or offerors whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” Am. Fed’n of Gov’t Emps. v. United States,
“The pivotal element of standing in a bid protest is whether a protester qualifies as an ‘interested party’ under [section] 1491(b)(1).” RhinoCorps Ltd. Co. v. United States,
In order to establish a direct economic interest in the procurement, a protester must demonstrate prejudice. See Myers Investigative & Sec. Servs., Inc. v. United States,
Reema will not be competitively injured if ECBC timely implements its proposed reproeurement schedule, which is essentially the same as what Reema would have this court adopt via an injunction. Indeed, despite plaintiffs early arguments in this case, which focused on its status under the 8(a) program, the schedule proposed by ECBC, as well as the type of procurement envisioned, would not deny Reema a fair opportunity to compete for the reprocurement. As such, the only thing plaintiff arguably would gain by having this court issue an injunction is the certainty that ECBC would not deviate from its plans. But, there are two problems with this approach. First, it is not for this court to enjoin ECBC from possibly injuring plaintiff in the future by deviating from its plans. Rather, for plaintiff to have an “injury which can be addressed by judicial relief,” Weeks Marine,
Coming at this differently, it should not be overlooked that injunctive relief would be denied here if, apart from the merits, the court focused on whether plaintiff, in the absence of an injunction, would suffer irreparable harm. To obtain a permanent injunction, a party must show that: (i) it has succeeded on the merits; (ii) it will suffer irreparable harm if such relief is not granted;
Nor is there reason to think that these traditional principles of equity somehow are relaxed in bid protests because the relief therein derives from a statute. See eBay, Inc. v. MercExchange, LLC,
Accordingly, the court concludes that plaintiff lacks standing to seek any in-junctive relief in this case. Nothing about this ruling, however, necessarily precludes plaintiff from seeking compensatory relief in the form of bid preparation and proposal costs, a topic to which we now turn.
B. Bid Preparation and Proposal Costs
Section 1491(b)(2) of Title 28 provides that this court “may award any relief that the court considers proper ... except that any monetary relief shall be limited to bid preparation and proposal costs.” This provision “provides the Court of Federal Claims with discretion in fashioning relief.” PGBA,
Plaintiff makes two claims in this regard. First, it asserts that ECBC acted contrary to the relevant regulations in awarding the contract to an offeror that did not qualify as a small business within the NAICS code involved. Second, it contends that ECBC applied the evaluation criteria in the RFP inconsistently, in rating Reema’s and SMRC’s proposals differently.
Plaintiffs first assertion would be more tenable if the governing regulations required ECBC to confirm SMRC’s eligibility prior to making an award. They do not. To be sure, under those regulations, an agency generally determines a business’ size status as of the date the offeror submits its initial offer. 48 C.F.R. § 19.301-l(a). That determination, however, is based on the offeror’s “self-certification that it is small to the contracting activity.” Enter. Info. Servs., Inc., 2010 CPD ¶213, at 2 (2010). Thus, under the regulations, the offeror must represent “that it is a small business concern in connection with a specific solicitation,” which represen
By the time the CO received Reema’s size protest, she had already awarded the contract to SMRC.
Reema, however, asserts that the CO had reason to question SMRC’s representations about its size and should have referred the matter to the SBA pursuant to 48 C.F.R. § 19.301-l(b). But, this claim proves too much. Plaintiff points to nothing in SMRC’s proposal that should have triggered an inquiry. Rather, it argues that the CO should have questioned SMRC’s status because the awardee failed to list NAICS code 541620, Environmental Consulting Services, on its profile in the Central Contractor Registration (CCR) system previously maintained by the General Services Administration (GSA).
For one thing, the regulations that governed that system did not oblige SMRC to list itself as qualifying under any particular NAICS code in order to be eligible to make an offer. Nor did they suggest that the CO was obliged to examine SMRC’s CCR listing prior to making an award. Rather, it appears that the CCR system was designed primarily to assist government agencies in performing market research and in administering contracts post-award. See 48 C.F.R. § 13.102; see also Shirlington Limousine & Transp., Inc. v. United States,
Plaintiff next claims it is entitled to bid preparation and proposal costs because ECBC improperly evaluated its proposal. But, the court need not resolve this dispute— or address whether the agency afforded SMRC benefits that were unwarranted — because, as it turns out, there is a fatal flaw in plaintiffs claim for damages.
“Bid preparation and proposal costs can be awarded by courts as an appropriate way to try to compensate, at least in part, a victim of unjust government action during the procurement process.” CNA Corp. v. United States,
In the case sub judice, plaintiff cannot show that the bid preparation and proposal costs it incurred in creating its first proposal were rendered unnecessary by the arbitrary, capricious, or otherwise erroneous actions committed by ECBC. Rather, the situation in which plaintiff finds itself — un
Only in the meekest terms does plaintiff yet argue that ECBC should award it the contract in question, rather than conduct a reprocurement. Its hesitation is well-founded as there are statutory and practical impediments that prevent ECBC from reevau-lating the first set of proposals, none the least of which is the fact that they are now three years old.
Accordingly, plaintiff has failed to satisfy the second prong of the requirements for receiving bid preparation and proposal costs, to wit, that a prejudicial error committed by the agency be the cause of its incurring unnecessarily the bid preparation and proposal costs it seeks. Therefore, the costs it seeks are not recoverable.
III. CONCLUSION
Based on the foregoing, the court concludes that it lacks jurisdiction to consider plaintiff’s claim for injunctive relief and that plaintiff is not otherwise entitled to bid preparation and proposal costs. Accordingly, plaintiffs motion for judgment on the administrative record is hereby DENIED, and defendant’s cross-motion for judgment on the administrative record is hereby GRANTED.
IT IS SO ORDERED.
Notes
. According to the RFP, ECBC "provides executive management of Army and Joint Service Nuclear, Biological, and Chemical (NBC) defense research development, an engineering program for NBC defense systems, and serves as the single executive agent throughout each program’s life cycle.”
. Section H of the RFP contained special contract requirements, among them, several extensive lists of government-furnished property "which may be provided for use by the Contractor under specific Task Orders.”
.The North American Industry Classification System (NAICS) code for the requirement was 541620 (Environmental Consulting Services) and the size standard was $7 million.
. This segment provided a nonexclusive list of "typical analytical instrumentation” that would be provided by the government.
. The RFP explained that the "unsatisfactory” rating was warranted where the “proposal fails to demonstrate an understanding of the Government’s requirements and fails to meet the minimum performance or capability requirements,” and where "[t]here is a low probability that all requirements will be met or can only be met with major changes to the proposal.”
. Reema’s proposed subcontractor was SciTech Services, Inc. (SciTech), the incumbent subcontractor; SMRC’s proposed subcontractor was STEM International, Inc. (STEM), the incumbent contractor.
. The cost subgroup concluded that SMRC's "material estimate is based on the government's recommendation [of $6,000 per month] and is acceptable.” As with Reema's proposal, however, the report stated that SMRC “references the need to provide material in the proposal, but does not actually present any direct material costs.”
. Although dated January 26, 2011, it is apparent that the memorandum was actually finalized on January 26, 2012.
. See Cuyahoga Metro. Hous. Auth. v. United States,
. Defendant construes the phrase "shall either terminate the contract or not exercise the next option” as referring not to the option on the contract (of which there was none), but rather to the multiple options existing on the task orders issued under the contract. At the very least, this warped construction of the regulation violates the commonsense canon of noscitur a sociis— "which counsels that a word is given more precise content by the neighboring words with which it is associated.” United States v. Williams,
. Contrary to plaintiff's claims, the CO did not err in failing to provide Reema with a preaward notice that the contract would be awarded to SMRC. The controlling regulation, 48 C.F.R. § 15.503(a)(2)(iii), in fact, indicates that such a "notice is not required ... when the contract is entered into under the 8(a) program.” See Size Appeal of: S4, Inc.,
. In July of 2012, the CCR was replaced by the System for Award Management (SAM), a GSA website that consolidates registration data from a number of procurement sources. See System for Award Management, https://www.sam.gov (last visited on Nov. 6, 2012, at 11:16 a.m. EST).
. Nor did these regulations require a registrant to update continuously its profile. Instead, they anticipated that contractors would update their profiles on an annual basis. See 48 C.F.R. § 52.204-7®.
. For cases supporting the first two of these prongs, see Ala. Aircraft Indus.,
. See Def. Tech., Inc. v. United States,
. In addition, Reema was the only arguably eligible offeror because SMRC was too big and Bowhead was viewed as unqualified. Upon a reevaluation, ECBC arguably could not award the contract to Reema because of 15 U.S.C. § 637(a)(l)(D)(i), which requires that an 8(a) contract with an award price in excess of $3 million “be awarded on the basis of competition.”
. The court intends to unseal and publish this opinion after November 20, 2012. On or before November 19, 2012, each party shall file proposed redactions to this opinion, with specific reasons therefor.