85 Fed. Cl. 273 | Fed. Cl. | 2008
MEMORANDUM OPINION AND FINAL ORDER
On September 17, 2008 a post-award bid protest challenge to the National Aeronautics and Space Administration (“NASA”)’s May 20, 2008 award of a $1.186 billion contract, that may be increased to $1.62 billion, for “protection services,” i.e., security guard services, potential fire fighting/prevention services, and potential emergency medical response services, at fourteen different NASA locations across the United States, was filed in the United States Court of Federal Claims. See AR at 26421, 26638. For the reasons discussed herein, the court has determined that this contract award should be set aside and that NASA appoint a re-constructed Source Selection Board to: re-evaluate specific sections of the proposals of Wackenhut Services, Inc. and Coastal International Security; and appoint a new Source
To facilitate review of this Memorandum Opinion and Final Order, the court has provided the following outline:
# ❖ *
I. RELEVANT FACTS......................................................277
A. The Solicitation......................................................277
B. The Source Evaluation Boards Duties..................................278
1. Evaluation Of The “Mission Suitability” Factor.....................278
2. Evaluation Of The “Past Performance” Factor.....................279
3. Evaluation Of The “Price” Factor.................................280
C. The Source Evaluation Board’s Initial Evaluations.....................280
D. The Source Evaluation Board’s Final Determinations...................281
1. The “Mission Suitability” Factor..................................281
a. The “Technical Approach” Subfactor...........................281
b. The “Management Approach” Subfactor........................282
2. The “Past Performance” Factor...................................283
3. The “Price” Factor...............................................283
4. Comparison Of Preliminary And Final Score Evaluation
Ratings And Scores.............................................284
E. The Source Selection Authority’s Evaluation And Award................284
II. PROCEDURAL HISTORY................................................285
A. At The General Accounting Office.....................................285
B. At The United States Court Of Federal Claims..........................285
III. JURISDICTION..........................................................286
A. Jurisdiction..........................................................286
B. Standing............................................................286
1. The Plaintiff Has Standing........................................287
a. As An “Interested Party.”.....................................287
b. Having Demonstrated A “Substantial Chance” of Being
Awarded The Contx-act......................................288
2. The Intexwenor Has Standing......................................288
a. The Intervenor’s Motion Was Timely...........................288
b. The Intervenor Has An Interest Relating To The
Transaction At Issue........................................288
c. The Intervenor’s Interest Cannot Adequately Be
Represented By The Parties.................................289
IV. THE GOVERNMENT’S LACHES DEFENSE..............................289
A. The Government’s Argument..........................................289
B. The Plaintiff’s Response..............................................289
C. The Court’s Resolution...............................................289
V. GOVERNING PRECEDENT REGARDING A DECISION ON THE
ADMINISTRATIVE RECORD IN A BID PROTEST CASE................289
VI. DECISIONS CONTESTED IN THIS BID PROTEST........................291
A. Decisions By The Source Evaluation Board............................291
1. The “Mission Suitability” Factor Determinations...................291
a. The Qualitative Significance Of The Ratings....................291
i. The Plaintiff s Argument.................................291
ii. The Government’s Response...............................293
iii. The Intervenor’s Response................................293
iv. The Court’s Resolution...................................293
b. The Rating And Scoring Of The “Technical Approach”
Subfactor..................................................293
i. The Plaintiff s Argument.................................293
ii. The Government’s Response...............................294
iii. The Intex-venox-’s Response................................294
c. The Scoring And Rating Of The “Management Approach”
Subfactor..................................................298
i. The Plaintiff s Argument.................................299
ii. The Government’s Response...............................299
iii. The Intervenor’s Response................................299
iv. The Court’s Resolution...................................300
2. The “Past Performance” Factor Determination.....................300
a. The Plaintiffs Argument......................................300
b. The Government’s Response...................................301
c. The Intervenor’s Response.....................................302
d. The Court’s Resolution........................................302
B. The Decisions Of The Source Selection Authority.......................303
1. The “Mission Suitability” Factor Determination....................303
a. The Plaintiff s Argument......................................303
b. The Government’s Response...................................304
c. The Intervenor’s Response.....................................305
d. The Court’s Resolution........................................305
2. The “Past Performance” Factor Determination.....................307
a. The Plaintiffs Argument......................................307
b. The Government Response.....................................308
c. The Intervenor’s Response.....................................308
d. The Court’s Resolution........................................308
3. The “Price” Factor Determination.................................308
VII. PLAINTIFF HAS ESTABLISHED PREJUDICE............................309
VIII. PLAINTIFF IS ENTITLED TO LIMITED INJUNCTIVE RELIEF...........310
A. Governing Precedent Regarding Relief In Bid Protest Cases.............310
B. The Relief Requested In This Case.....................................311
C. The Court’s Resolution...............................................311
1. Plaintiff Has Demonstrated Success On The Merits Regarding
Specific Issues..................................................311
2. Plaintiff Has Established Irreparable Harm, If The Court Does
Not Grant Injunctive Relief. ....................................311
3. In This Case, A Balance Of Hardships To The Parties Favors
The Grant Of Limited Injunctive Relief. .........................311
4. In This Case, The Public Interest Weighs in Favor of Limited
Injunctive Relief................................................312
IX. CONCLUSION...........................................................312
I. RELEVANT FACTS.
A. The Solicitation.
On September 14, 2007, NASA issued a 2,600 page Final Request for Proposal No. NNX077040R (hereinafter “RFP” or “Solicitation”), to consolidate protective and responsive services to:
ensure efficient and standard services and policies; provide for viable and integrated measures to mitigate security threats against personnel, assets, resources and technology; and provide response capabilities to man-made and natural emergencies. The NPSC [NASA Protective Services Contract] includes the following services: 1. Security Services: ____; 2. Emergency Management: ____; 3. Fire Services: ----; 4. Export Control: ____; 5. Information Assurance[.]
AR at 26638.
Security services (72.7%); fire fighting/prevention (22.4%); and emergency medical response (2.7%), comprised approximately 98% of the total value of the Solicitation. Id. at 2626-28.
The Scope of Work required that each offeror provide a firm fixed-price contract with separately priced task orders for each of the identified fourteen locations. Id. at 9-10.
B. The Source Evaluation Boards Duties.
The Solicitation required proposals to be evaluated by a Source Evaluation Board (“SEB”), pursuant to: the Federal Acquisition Regulation (“FAR”) 15.3 (“Source Selection”); the NASA FAR Supplement (NFS 1815.3); and the requirements of the RFP. See AR at 2603. The SEB was required to follow the procedure at NFS 1815.370 and report its findings to a Source Selection Authority (“SSA”) who would be responsible for the Final Source Selection Decision. Id. at 2604.
The SEB was required to conduct an evaluation of the following factors and subfactor elements:
Factor 1: Mission Suitability
Subfactor 1: Technical Approach
Understanding the Requirements
Staffing Plan
Innovation and Efficiency
■ Subfactor 2: Management Approach
Management Plan
Phase-In Plan
Key Personnel
Risk Management
Subfactor 3: Small Business Participation
Approach
Small Business Subcontracting
Small Disadvantaged Business
Participation
Subfactor 4: Safety and Health Approach
Factor 2: Past Performance
Factor 3: Price
Id. at 1473-82.
“Mission Suitability” was the only factor to be weighed and numerically scored. Id. at 1473. This factor also was stated to be more important than the “Past Performance” Factor, however, the “Mission Suitability” and “Past Performance” Factors, when combined, were “significantly more important than the Price [F]aetor.” Id. at 1483.
The Solicitation, however, provided that this procurement was a “competitive negotiated acquisition.” Id. at 1472. Accordingly, the contract was to be awarded to the “responsible Offeror whose proposal results in the best value to the Government.” Id. The evaluation methodology is set forth in both the Solicitation and subsequent Source Evaluation Plan. Id. at 2603-19.
1. Evaluation Of The “Mission Suitability” Factor.
The “Mission Suitability” Factor included four subfactors:
Factor 1: Mission Suitability
Technical Approach (425 Points)
TAI — Understanding the Requirements
TA2 — Staffing Plan
TA3 — Innovation and Efficiency
Management Approach (375 Points)
MA1 — Management Plan
MA2 — Phase-in Plan
MA3 — Key Personnel
MA4 — Risk Management
Small Business Participation Approach (100 Points)
SB1 — Small Business Subcontracting '
SB2 — Small Disadvantaged Business Participation
Safety and Health Approach (100 Points)
Safety & Health Plan, Safety Record/History
Id. at 12566-67.
The “Mission Suitability” Factor evaluation was to proceed in three stages. First, the SEB was required to reach a consensus recommendation of each proposal’s “significant strengths,” “regular strengths,” “regu
Second, the SEB was required to assign an adjectival rating for each subfactor, based on assessed strengths and weaknesses. Id. The adjectival ratings are set forth below, together with assigned definitions and percentile ratings:
[[Image here]]
Id. at 2609.
Third, the SEB was required to assign a percentage score for the designated adjectival rating for each subfactor. Id. at 2611. That percentage score, when multiplied by the number of available points for each sub-factor, yielded the total score for the subfactor. Id. at 12569-73.
The number of available points for each subfactor of the “Mission Suitability” Factor is listed below:
Technical Approach 425
Management Approach 375
Small Business Participation Approach 100
Safety & Health Approach 100
Tota^_
Id, at 1473.
2. Evaluation Of The “Past Performance” Factor.
To satisfy the “Past Performance” Factor, offerors were required to provide references for at least five current contracts or any contracts completed in the past three year’s, “with special emphasis on the experience that is relevant to this effort.” AR at 1437. In addition, offerors were advised to describe their past performance and experience, as well as overall accomplishments for each of these contracts. Id. “Past Performance” questionnaires were sent to at least three of the contract references. Id. Information regarding the major subcontractors also was to be considered. Id.
The SEB was required to evaluate an offeror’s past performance, in accordance with Section M of the Solicitation as follows:
a. Overall Past Performance
b. Relevant Experience for the Prime and Major Subcontractor^ ]
c. Small Business Participation
d. Safety and Health
The evaluation of past performance will consider data provided by Offerors and data obtained from other sources such as the Past Performance Questionnaire, which was an attachment to the RFP. Additionally, the SEB’s evaluation will consider any other Past Performance information obtained independently by the Past Performance Committee, including data extracted using the Past Performance data base (PPDB)____For each proposal, the SEB will identify findings, if any, for past performance from the data gathered by the SEB Past Performance Committee and consider these findings when assigning an adjective rating.
Id. at 2611.
Unlike the “Mission Suitability” Factor, the “Past Performance” Factor was not numerically scored, but assigned only an adjective rating. Id. The adjective rating definitions were:
Excellent: Of exceptional merit; exemplary performance in a timely, efficient, and*280 economical manner; very minor (if any) problems with no adverse effect on overall performance; and experience that is highly relevant to this procurement!.]
Very Good: Very effective performance; fully responsive to contract requirements; contract requirements accomplished in a timely, efficient, and economical manner for the most part; only minor problems with little identifiable effect on overall performance; and experience is very relevant to this procurement!.]
Good: Effective performance; fully responsive to contract requirements; reportable problems, but with little identifiable effect on overall performance; and experience is relevant to this procurement!.]
Fair: Meets or slightly exceeds minimum acceptable standards; adequate results, reportable problems with identifiable but not substantial, effects on overall performance; and experience is at least somewhat relevant to this procurement.
Poor: Does not meet minimum acceptable standards in one or more areas; action required in one or more areas; problems in one or more areas, which adversely affect overall performance.
Neutral: In the ease of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance [see FAR 15.305(a)(2)(ii) and (iv) ]-
Id. at 2612.
3. Evaluation Of The “Price” Factor.
Finally, the SEB was required to evaluate the “Price” Factor, considering the total proposed fixed price for the five-year base period and the combined subsequent option periods. See AR at 2613.
C. The Source Evaluation Board’s Initial Evaluations.
Five offerors submitted initial proposals in response to the September 14, 2007 Solicitation: Coastal International Security, Inc. (“CIS”);
The following chart shows the SEB’s initial evaluation of the proposals for all three factors:
Id. at 12626.
The following chart compares the price of the Independent Government Cost Estimate (“IGCE”) with each of the five preliminary proposals,
[[Image here]]
[[Image here]]
[[Image here]]
Id. at 12624.
On February 29, 2008, based on these initial evaluations, the SEB recommended to the SSA that only WSI be included in the “competitive range.” Id. at 12553. During an Executive Session with the SSA, however, legal counsel discussed excerpts from prior cases involving competitive range determinations. Id. Thereafter, the SSA decided against limiting the competitive range only to WSI, because it was in the “Government’s interest to continue the competition given [unspecified] weaknesses in [WSI’s] proposal.” Id. at 12897. None of the offerors challenged that decision.
On March 3, 2008, the SEB sent letters to WSI and CIS advising them of “weaknesses and necessary clarifications” in their initial proposals. Id. at 26640. On March 26, 2008 and March 28, 2008, the SEB convened oral discussions with WSI and CIS. Id. On April 25, 2008, WSI and CIS submitted revised Final Proposals to the SEB. Id. On May 20, 2008, the SEB presented Final Findings to the SSA. Id.
D. The Source Evaluation Board’s Final Determinations.
1. The “Mission Suitability” Factor, a. The “Technical Approach” Subfactor.
Initially, CIS had a “Technical Approach” Subfactor rating of “Good,” with [deleted] “significant strengths,” [deleted] “regular strengths,” [deleted] “significant weakness,”
The following chart shows the SEB’s Final Evaluation of WSI’s and CIS’s “significant strengths” regarding the “Technical Approach” Subfactor:
“TECHNICAL APPROACH” SUBFACTOR
WSI CIS
1. Detailed and thorough compliance analysis of NPSC technical requirements [deleted]
2. Exceptional response to the 7 technical scenarios contained in the RFP [deleted]
3. Effective plan for responding to emergencies and unplanned requirements
4. Well-structured and effective professional security training program
Id. at 26433, 26447.
b. The “Management Approach” Subfactor.
Initially, the SEB evaluated CIS’s Proposal's “Management Approach” Subfactor as having [deleted] “significant strengths,” [deleted] “regular strengths,” [deleted] “significant weaknesses” and [deleted] “regular weaknesses.” See AR at 12570; see also AR at 26436. After discussions with the SEB, CIS and WSI submitted revised Final Proposals. Id. at 26640. The SEB eliminated CIS’s and WSI’s “regular weaknesses,” but CIS still retained [deleted] “regular weakness.” Id. at 26436, 26452.
The following chart shows the SEB’s Final Evaluation of both offeror’s “significant strengths” regarding the “Management Approach” Subfactor.
“MANAGEMENT APPROACH" SUBFACTOR .
“MANAGEMENT APPROACH” SUBFACTOR
WSI CIS
1. Comprehensive management approach to program, contract, business and quality management, and customer satisfaction [deleted]
2. Approach to recruiting and training of emergency response staff [deleted]
3. Thorough phase-in plan
4. Detailed description of Integrated Risk Management Approach and Continuous Risk Management Process
Id. at 26436, 26452.
The SEB’s evaluation of the final revised proposal for the “Mission Suitability” Factor resulted in the following number of strengths and weaknesses for WSI and CIS:
Mission Suitability
Subfactor WSI CIS
Technical Approach Significant strengths: [deleted] Regular strengths: [deleted] Significant strengths: [deleted] Regular strengths: [deleted]
[[Image here]]
Small Business Significant strengths: [deleted] Regular strengths: [deleted] Regular weaknesses: [deleted] Significant weaknesses: [deleted] Significant strengths: [deleted] Regular strengths: [deleted] Regular weaknesses: [deleted] Significant weaknesses: [deleted]
Safety and Health Significant strengths: [deleted] Regular strengths: [deleted] Regular weaknesses: [deleted] Significant weaknesses: [deleted] Significant strengths: [deleted] Regular strengths: [deleted] Regular weaknesses: [deleted] Significant weaknesses: [deleted]
Id. at 26433, 26436, 26441-42, 26447, 26452, 26459-60.
2. The “Past Performance” Factor.
The following chart shows the respective strengths and weaknesses of the “Past Performance” Factor for WSI and CIS:
WSI CIS
Strengths Strengths
Relevant Experience Relevant Experience
Recruitment/Retention Recruitment/Retention
Exceeded Expectations Exceeded Expectations
Problem Resolution Contingency Support
High Quality Service
Small Business Goals
Weaknesses
[Deleted] Poor
Performance
AR at 26504-07, 26513, 26576-83.
CIS’s [deleted] weakness was attributed to poor performance by a major subcontractor, [deleted], for [deleted] in a prior [deleted] contract. Id. at 26513.
3. The “Price” Factor.
The following chart is a Comparative Analysis of the IGCE with both offerors’ price proposals for the Phase-In/Basic Contract term and option for the initial five-year contract term:
Period IGCE (ADJ) COASTAL WSI
Phase In $[deleted] $[deleted] $[deleted]
Basic [deleted] [deleted] [deleted]
Sub Total $[deleted] $[deleted] $[deleted]
Option [deleted] [deleted] [deleted]
Total ¡{[deleted] $1,186,340,333 $[deletcd]
AR at 26185.
The next chart provides a detailed breakout of the phase-in/basic contract term, i.e., years 1-5 and the options period, i.e., years 6-10.
TOTAL BY YEAR
NPSC-BASE PERIOD
Year COASTAL WSI
Phase In $[deleted] $[deleted]
1 [deleted] [deleted]
2 [deleted] [deleted]
3 [deleted] [deleted]
4 [deleted] [deleted]
5 [deleted] [deleted]
Basic $[deleted] $[deleted]
Basic/Phase $[deleted] $[deleted]
NPSCOPTION PERIOD
Year COASTAL WSI
6 [deleted] [deleted]
7 [deleted] [deleted]
8 [deleted] [deleted]
9 [deleted] [deleted]
Option $[deleted] $[deleted]
Total $ 1,186,340,333 $[deleted]
Id. at 26212.
WSI’s total proposed fixed price was $[deleted] billion. Id. at 26479. CIS’s proposed price was $1.186 billion, or [deleted] percent below WSI’s price. Id. at 26643.
4. Comparison Of Preliminary And Final Score Evaluation Ratings And Scores.
The following chart shows the difference between the SEB’s Preliminary and Final Findings of both CIS’s and WSI’s Proposals for all factors and subfactors:
[[Image here]]
AR at 26658.
E. The Source Selection Authority’s Evaluation And Award.
The Administrative Record reflects that on May 20, 2008, the SEB held a briefing session with the SSA, who thereafter determined on that same day:
With regard to Mission Suitability, the SEB rated both offerors as “[deleted]” overall. In terms of the numerical score, Wackenhut’s score was approximately [deleted]% higher than Coastal’s. Neither proposal was found to have any significant weaknesses or deficiencies.
Looking at the factor Mission Suitability, I recognized the SEB gave Waekenhut a “[deleted]” based on its thorough analysis of the technical approach for all task orders, its excellent response to the technical scenai'ios, its training program demonstrating a commitment to standardizing a professional NASA-wide training program, and its effective plan for responding to unplanned requirements and emergencies. Additionally, Waekenhut received the significant strengths for its eompi’ehensive management approach, its exceptional
methodology to recruitment, its detailed phase-in plan that exceeded Government expectations, its approach to risk management, and its comprehensive approach to the Safety, Health and Environmental Program. I concurred with the SEB’s rating of “Very Good,” finding Waekenhut had a thorough understanding of all requirements of the RFP and Waekenhut could perform this large contract without incurring any major problems.
Coastal also received a “[deleted]” rating for Mission Suitability based upon its proven method for continuous improvement designed to eliminate waste and inefficiencies to improve overall contract performance and due to its [deleted]. I was particularly impressed with Coastal’s continuous improvement plan which is [deleted], helping NASA achieve its goal of innovation, standardization, and efficiency over the life of the contract. Coastal also received significant strengths for its web portal program [deleted]. This [deleted] provides for an [deleted] a high level of confidence in Coastal’s quality management of the contract. Additionally, Coastal received significant strengths for its comprehensive*285 and systemic approach to risk management and its comprehensive Safety, Health and Environmental Program. I also concurred with the SEB’s rating of “[deleted]” given to Coastal for the Mission Suitability factor.
With respect to Past Performance, the SEB rated both offerors as “[deleted].” The SEB identified [deleted] regular strengths for Wackenhut and identified [deleted] regular strengths and [deleted] regular weakness for Coastal. Although Wackenhut had a marginal advantage regarding this factor, I concluded both Offerors could perform the contract effectively since both had successfully performed Government contracts directly related to the NPSC.
With respect to Price, I was aware that Coastal’s price was more than [deleted]% lower than Waekenhut’s price. I re-evaluated Wackenhut’s Mission Suitability proposal to determine whether there were any strengths justifying Wackenhut’s higher price. Even though the Offerors both received a rating of “[deleted]” for the Mission Suitability factor, I believed a tradeoff analysis was required since the SEB gave Wackenhut a slightly higher Mission Suitability score and more significant strengths than Coastal.
Assessing the importance of the strengths Offerors received was more revealing to me than the number of strengths each offeror received. I recognized Coastal had [deleted] with a continuous improvement plan and its integrated web portal. Based upon the value of this [deleted], I found the Mission Suitability proposal from Coastal was basically equal to the Mission Suitability proposal submitted by Waekenhut. I concluded Coastal’s proposal offered a better value to the Government given its proposed price was more than [deleted]% lower than the price Wackenhut proposed while its Mission Suitability and Past Performance proposals were essentially equal to Wackenhut’s.
AR at 26642-48.
II. PROCEDURAL HISTORY.
A. At The General Accounting Office.
On June 10, 2008, WSI filed a protest of the May 20, 2008 award with the General Accounting Office (“GAO”). See AR at 26708. On September 10, 2008, the GAO denied WSI’s protest. Id. at 27512.
B. At The United States Court Of Federal Claims.
On September 17, 2008, WSI filed in the United States Court of Federal Claims: a Complaint, under seal; a Motion for a Protective Order; a Motion for a Temporary Restraining Order; and Motion for a Preliminary Injunction. The Complaint was assigned to the undersigned judge. On September 19, 2008, CIS filed a Motion to Intervene, together with a Brief in Support. On that same date, the court convened a telephone status conference, after which the court entered a Scheduling Order requiring: the Administrative Record to be filed by September 29, 2008; WSI to file any dis-positive motions by September 30, 2008; any Government response and cross motion to be filed by October 10, 2008; and WSI’s response and any cross motion to be filed by October 17, 2008.
On September 19, 2008, the court also granted WSI’s request to file the September 17, 2008 Complaint under seal and CIS’s Motion to Intervene. On September 22, 2008, the court issued a Protective Order, requested by the parties. On September 29, 2008, the Government filed a 27,510 page Administrative Record, under seal, consisting of 23 volumes of documents.
On September 30, 2008, WSI filed a Motion for Judgment on the Administrative Record, under seal (“Pl.Mot.”). On October 10, 2008, the Government filed a Cross Motion for Judgment and Response, under seal (“Gov’t.Resp.”), as did CIS (“Int.Resp.”). On October 17, 2008, WSI filed a Response to Defendants’ Cross Motion and Reply to Defendants’ Response (“Pl.Resp.”). On October 24, 2008, the Government and CIS each filed a Final Reply to WSI’s October 17, 2008 Response to Defendants’ Cross Motion, under seal (“Gov’t Reply” and “Int. Reply”).
On November 19, 2008, the court held an oral argument (“TR 1-114”). On December
III. JURISDICTION.
A. Jurisdiction.
The Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996, Pub.L. No. 104-320, §§ 12(a), (b), 110 Stat. 3870 (Jan. 3, 1996), codified at 28 U.S.C. § 1491(b) (“ADRA”), authorized the United States Court of Federal Claims to “render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1); see also Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed.Cir.2004) (“The [United States] Court of Federal Claims has jurisdiction to review both pre-award and post-award bid protests pursuant to 28 U.S.C. § 1491(b), enacted as part of the Administrative Dispute Resolution Act of 1996[.]”).
The September 17, 2008 post-award bid protest Complaint in this case alleges that NASA violated several provisions of the FAR, as well as the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, in awarding the contract to CIS. See Complaint f1134-35. Accordingly, the September 17, 2008 Complaint recites a sufficient basis for the court to exercise jurisdiction, pursuant to 28 U.S.C. § 1491(b)(1).
B. Standing.
As a threshold matter, a protester must establish that it is an “interested party.” 28 U.S.C. § 1491(b)(1). The United States Court of Appeals for the Federal Circuit has construed the term “interested party” as synonymous with “interested party,” as defined by the Competition in Contracting Act, 31 U.S.C. § 3551(2)(A).
Certainly, the question of prejudice turns, in part, on the relationship between the protestors) and the specific procurement process that is being challenged. Moreover, the United States Court of Appeals for the Federal Circuit has held that the issue of prejudice may be dependent upon the type of relief sought by the parties:
In Impresa [Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed.Cir.2001),] we considered the standard to be applied where the plaintiff claims that the government was obligated to rebid the contract (as contrasted with a situation in which the plaintiff claims that it should have received the award in the original bid process). [ ] To have standing, the plaintiff need only establish that it ‘could compete for the contract’ if the bid process were made competitive ____ [Plaintiff] need not show that it would have received the award in competition with other hypothetical bidders, [but rather] must show that it would have been a qualified bidder.
Myers, 275 F.3d at 1370-71 (emphasis added; citations omitted); see also Alfa Laval, 175 F.3d at 1367 (“[T]o establish competitive prejudice, protestor must demonstrate that but for the alleged error, ‘there was a substantial chance that [it] would receive an award — that it was within the zone of active consideration.’”) (citing Caci, Inc.-Fed. v. United States, 719 F.2d 1567, 1574-75 (Fed. Cir.1983)) (emphasis added).
1. The Plaintiff Has Standing, a. As An “Interested Party.”
On November 30, 2007, WSI submitted a proposal in response to the September 14, 2007 Solicitation. See AR at 6489. Four other offerors submitted initial proposals. Id. at 12562-64. The SSA’s May 20, 2008
b. Having Demonstrated A “Substantial Chance” of Being Awarded The Contract.
In this case, the September 14, 2007 Solicitation was a “competitive negotiated acquisition” to be awarded to the “responsible offeror whose proposal results in the best value to the Government.” AR at 1472. Although five companies submitted proposals, WSI was the only firm, other than CIS, determined to be in the “competitive range.” Id. at 12553. Therefore, WSI has a “substantial chance of being awarded this contract”. See Bannum, 404 F.3d at 1346.
Since WSI established that it is an “interested party” and had a “substantial chance” of being awarded the contract, the court has determined that WSI has standing to pursue this bid protest. See Myers, 275 F.3d at 1370 (“To have standing, the plaintiff need only establish that it ‘could compete for the contract’ if the bid process were competitive.”) (emphasis added; internal citations omitted).
2. The Intervenor Has Standing.
On September 19, 2008, the court granted CIS’s Motion to Intervene, pursuant to Rule 24(a) of the United States Court of Federal Claims, providing in relevant part that:
On timely motion, the court must permit anyone to intervene who ... claims an interest relating to the property or transaction that is the subject of the action, and is so situated that the disposition of the act-ion may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.
RCFC 24(a) (emphasis added); see also Am. Mar. Transp., Inc. v. United States, 870 F.2d 1559, 1561 (Fed.Cir.1989) (“Intervention is proper only to protect those interests which are of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.”) (internal quotations & citations omitted). The United States Court of Appeals for the Federal Circuit has held that “the requirements for intervention are to be construed in favor of intervention.” Am. Mar. Transp., 870 F.2d at 1561 (citing Westlands Water Dist. v. United States, 700 F.2d 561, 563 (9th Cir.1983)).
a. The Intervenor’s Motion Was Timely.
The United States Court of Appeals for the Federal Circuit requires that the trial court evaluate three factors in determining whether an intervention is timely: “(1) the length of time during which the would-be intervenor[s] actually knew or reasonably should have known of [their] right[s;] (2) whether the prejudice to the rights of existing parties by allowing intervention outweighs the prejudice to the would-be intervenor[s] by denying intervention^] (3) existence of unusual circumstances militating either for or against a determination that the application is timely.” Belton Indus., Inc. v. United States, 6 F.3d 756, 762 (Fed.Cir.1993) (citations omitted; certain alterations in original).
In this case, CIS filed a Motion To Intervene on September 19, 2008, two days after WSI filed the September 17, 2008 Complaint. No party opposed CIS’s Motion to Intervene and the court is unaware of any prejudice to the existing parties or any unusual circumstances that would require CIS to be denied full intervention rights. Therefore, CIS’s September 19, 2008 Motion To Intervene was timely.
b. The Intervenor Has An Interest Relating To The Transaction At Issue.
In addition, CIS has “an interest relating to the ... transaction that is the subject of [this] action,” because CIS’s proposal was determined to be in the “competitive range.”
c. The Intervenor’s Interest Cannot Adequately Be Represented By The Parties.
The Government cannot adequately represent CIS’s interest, as CIS’s arguments demonstrate. See, e.g., Int. Resp., Int. Reply. Accordingly, CIS has satisfied the third element of RCFC 24(a). See RCFC 24(a)
IV. THE GOVERNMENT’S LACHES DEFENSE.
A. The Government’s Argument.
The Government asserts that WSI’s protest is barred by the equitable doctrine of laches. See Gov’t Resp. at 10. To establish laches the moving party must show lack of diligence by the party against whom the defense is asserted and prejudice to the party asserting the defense. See Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961). In this case, the first paid; of the Costello test has been met, because WIS’s protest could have been filed in the United State Court of Federal Claims in the first instance. See Gov’t Reply at 20. The “unnecessary filing with GAO delayed this Court’s review of the protest by four months.” Id. The second part of the test also has been satisfied, because it is the Government that has been prejudiced by the delay in the “commencement and consolidation of the services by the Government’s chosen contractor.” Id. at 12.
B. The Plaintiffs Response.
The Government has not made the requisite showing for the affirmative defense of laches. See PI. Resp. at 25. WSI did not unreasonably delay in filing this suit. Id. WSI filed a protest with the GAO five days after receiving a debriefing and then timely filed the protest in the United States Court of Federal Claims within one week of receiving a denial from GAO. Id. at 25-26. There are no extraordinary circumstances present in this case, and the Government has made no specific showing of prejudice. Id.
C. The Court’s Resolution.
The Government’s assertion of the equitable defense of laches is unfounded in both fact and law. The doctrine of laches is “an affirmative defense, equitable in nature, that denies relief to the plaintiff who has unreasonably or inexcusably delayed in asserting a claim.” Calvin W. Corman, Limitations of Actions § 3.3.2 at 183 (1991) (“Corman on Limitations”). The United States Court of Appeals for the Federal Circuit has defined laches as “neglect or delay in bringing suit to remedy an alleged wrong, which together with the lapse of time and other considerations, causes prejudice to the adverse party and operates as an equitable bar.” A.C. Aukerman Co. v. R.L. Chaides Const. Co., 960 F.2d 1020, 1028-29 (Fed.Cir.1992) (en banc). Although, considerable latitude is granted to the trial court in applying this doctrine, nevertheless, “it must be established that the delay is unreasonable and that it caused prejudice to the defendant.” Cor-man on Limitations § 3.3.2 at 183 (citing Foster v. United States, 733 F.2d 88 (Fed. Cir.1984)).
In this case, the SSA awarded the contract at issue to CIS on May 20, 2008. See AR at 26642-43. On June 10, 2008, WSI filed a timely protest at the GAO. Id. at 26708. On September 10, 2008, the GAO denied WSI’s protest. Id. at 27512. Seven days later, on September 17, 2008, WSI filed a timely Complaint in the United States Court of Federal Claims. Under these circumstances, no facts evidence that WSI delayed asserting claims either in the GAO or this court or that the Government has been prejudiced in any way. See Heritage of Am. LLC v. United States, 77 Fed.Cl. 66, 73 (2007) (“Although it has taken time to arrive at this Court, [Plaintiff has] taken every step on its bid protest journey in a timely manner.”). Accordingly, the doctrine of laches is not even remotely implicated in this case and the Government’s assertion thereof is unwarranted. See TR at 72-73.
V. GOVERNING PRECEDENT REGARDING A DECISION ON THE ADMINISTRATIVE RECORD IN A BID PROTEST CASE.
Pursuant to the Tucker Act, as amended by the ADRA, the United States Court of
The United States Court of Appeals for the Federal Circuit has held that “a bid award may be set aside if either: (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Galen Med. Assocs., 369 F.3d at 1329 (citations omitted); see also Bannum, 404 F.3d at 1351 (holding that the trial court initially must determine if the Government “acted without rational basis or contrary to law when evaluating the bids and awarding the contract.”); Banknote Corp., 365 F.3d at 1350 (“Among the various APA standards of review in section 706, the proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ”) (citation omitted).
A “disappointed bidder” bears a “heavy burden” of showing that an award decision had no rational basis. See Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed.Cir. 2001). This burden is even greater when the procurement is a “best value” procurement, as is the case here. See Galen Med. Assocs., 369 F.3d at 1330 (“As the contract was to be awarded based on ‘best value,’ the contracting officer had even greater discretion ... the relative merit of competing proposals is primarily a matter of administrative discretion.”) (citations omitted); see also Unisys Corp. v. Widnall, 98 F.3d 1325, 1327 (Fed. Cir.1996) (“In determining whether the agency has complied with the regulation authorizing best value procurement, the [reviewing authority] may overturn an agency’s decision if it is not grounded in reason.”).
Therefore, when the court finds a “reasonable basis” for an agency’s action, the court should “stay its hand even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations.” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed.Cir. 1989) (citation omitted); see also United States v. John C. Grimberg Co. Inc., 702 F.2d 1362, 1372 (Fed.Cir.1983) (holding that the court may interfere with a federal procurement process “only in extremely limited circumstances”). This standard recognizes a zone of acceptable results in each particular case and requires that the final decision reached by an agency is the result of a process that “consider[s] the relevant factors” and is “within the bounds of reasoned decision making.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983); see also Impresa, 238 F.3d at 1332-33 (“[T]he test for reviewing courts is to determine whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a heavy burden of showing that the award decision had no rational basis.”) (citation & internal quotations omitted).
The standard of review for a Motion for Judgment on the Administrative Record, pursuant to RCFC 52.1,
VI. DECISIONS CONTESTED IN THIS BID PROTEST.
A. Decisions By The Source Evaluation Board.
1. The “Mission Suitability” Factor Determinations.
The “Mission Suitability” Factor, including four subfactors and various component elements, was to be considered the most important evaluation factor by the SEB. See AR at 1483. First, the SEB was to make an assessment of each proposal’s “significant strengths,” “regular strengths,” “regular weaknesses,” and “significant weaknesses.” Id. at 2611. Next, the SEB was required to designate each proposal with an adjectival rating, followed by a percentage score within that adjectival rating for each “Mission Suitability” Subfactor. Id.
In this protest, WSI challenges three of the SEB’s “Mission Suitability” Subfactor Determinations. See Compl. f 35a-b; see also PI. Mot. at 13-33.
a. The Qualitative Significance Of The Ratings.
The Complaint does not allege that the SEB violated any FAR regulation in failing to consider or assign certain elements of the “Technical Approach” Subfactor and “Management Response” Subfactor of the “Mission Suitability” Factor with more qualitative significance than others, but rather that the SEB’s ratings violated the APA, because the ratings were “arbitrary and capricious.” See Compl. 1135a.
i. The Plaintiff’s Argument.
WSI’s proposal was “clearly superior” in “Mission Suitability,” because WSI had [deleted] “significant strengths” but CIS had
For example, under the Technical Approach Subfaetor, the first element, “Understanding the Requirements” has two sub-parts: “Technical Scenarios” and “General Understanding.” See AR at 1474. WSI received [deleted] “significant strength” under both subparts for “exceptional” response to all seven technical scenarios contained in the RFP and a detailed and thorough compliance analysis of NPSC technical requirements. Id. at 26449. The second element of the “Technical Approach” Subfaetor was “Staffing Plan.” Id. at 1474. Again, WSI received [deleted] “significant strength” for an “effective plan for staffing in response to unplanned requirements and emergencies.” Id. at 26451. Each of these “significant strengths” covered substantial parts of the evaluation criteria. See PI. Mot. at 14.
In contrast, CIS received [deleted] “significant strength” in [deleted] element of the “Technical Approach” Subfaetor for “robust formal continuous improvement program.” AR at 26434. A continuous improvement plan, however, is just one component of the “General [Understanding]” element, and therefore is “only a very small part of the evaluation criteria in this subfactor.”
Likewise, the qualitative nature of “significant strengths” in the “Management Approach” Subfactor demonstrates WSI’s dominance:
[E]aeh of WSI’s “significant strengths” is more important than Coastal’s [deleted] “significant strength,” as measured by the Section M criteria. The first Management Approach subfactor element is “Management Plan.” WSI received [deleted] “significant strength” that covered a majority of the criteria in that element: [deleted] “significant strength” for its “comprehensive management approach to program, contract, business and quality management, and customer satisfaction.” ... The second element of the Management Approach subfactor is the Phase-In Plan. WSI’s .[deleted] “significant strength,” its “thorough Phase-In Plan,” covers the full range of that second element, and the SEB Chairman himself acknowledged the importance of that significant strength.. [In contrast,] Coastal’s [deleted] significant strength for the Management Approach subfactor is its “web portal to [deleted].” A web portal is a management tool and thus fits somewhere within the Management Plan element. It is a very narrow part of the subject matter covered by the “Management Plan” criteria, and it is not a specific requirement stated anywhere in the Solicitation.
Id. at 15-16 (internal citations to AR omitted).
SEB’s Final Findings assigned WSI the highest rating in the “Technical Approach” Subfactor. See AR at 26658. The SEB rated WSI’s “Technical Approach” as “[deleted]” and assigned it a score of [deleted] out of [deleted] possible points. Id. CIS received a “Very Good” rating, with [deleted] points. Id. In addition, WSI’s strengths were broad, “covering large swaths of the evaluation criteria” and should receive even more weight
ii. The Government’s Response.
The Government defends the SEB’s ratings as a matter within the agency’s discretion. See Gov’t Resp. at 17. In addition, the Government criticizes WSI for characterizing each “significant strength” as indistinguishable and interchangeable, ignoring the fact that the SEB could assign different values to individual “significant strengths.” See Gov’t Reply at 3.
The Government first takes issue with WSI minimizing the importance of SEB’s rating of CIS’s continuous improvement plan, an element of the “Understanding the Requirements,” “Technical Approach” Subfactor. See Gov’t Resp. at 16. The SEB acted appropriately in recognizing the clear advantages of CIS’s continuous improvement plan, finding that the “program ensures that all processes associated with the contract are subject to review and improvement, making it a substantial benefit to the Government.” Id. at 17 (citing AR at 26434).
iii. The Intervenor’s Response.
CIS refutes WSI’s emphasis on “significant strengths” as the principal discriminator and the conclusion that, since WSI had more significant strengths, WSI should have been awarded the contract. See Int. Resp. at 9-12. CIS states that the evaluation system was “not a rigid mechanical process of merely counting up strengths and weaknesses.” Id. If it were, the SSA’s overall “best value” determination would be unnecessary. Id. at 9-10.
iv. The Court’s Resolution.
It is well established that “procurement officials are entitled to broad discretion in the evaluation of bids and in the application of procurement regulations, particularly in those circumstances where, as here, a negotiated procurement is at issue.” Day & Zimmermann Servs. v. United States, 38 Fed.Cl. 591, 597 (1997); see also Oceaneering Int’l, Inc., 2001 WL 695072, at * 10 (Comp. Gen.2001) (“There is nothing improper with the agency identifying strengths and weaknesses under an adjectival rating scheme, as the agency did here. Adjectival ratings and point scores are only a guide to assist agencies in evaluating proposals; information on advantages and disadvantages of proposals is the type of information that source selection authorities should have in addition to ratings and point scores to enable them to determine whether and to what extent meaningful differences exist between proposals. Proposals with the same adjectival ratings are not necessarily of equal quality and the agency may properly consider specific advantages that make one proposal of higher quality than another.”) (citations omitted).
Therefore, as a matter of law, the SEB did not abuse its discretion in how “significant strengths,” “regular strengths,” “significant weaknesses,” and “regular weaknesses” were assigned in the overall rating of the “Mission Suitability” Factor.
b. The Rating And Scoring Of The “Technical Approach” Subfactor.
The Complaint alleges that the SEB violated the APA by failing to provide a “written explanation” of how final ratings and point scores were assigned and compare with both proposals. See Compl. H 35a. The Complaint also alleges that the SEB violated FAR 15.306(e)(1),
i. The Plaintiff’s Argument.
WSI argues that the “Technical Approach” Subfaetor rating and scoring was arbitrary
Although WSI recognizes that the SEB has some discretion, “[t]he exercise of that judgment ... does not, as [the Government] would have it, make the numbers of significant strengths irrelevant.” See PL Resp. at 19. In fact, WSI’s “significant strengths” were broader than what was required in the Solicitation and any “nuaneing” in favor of CIS is inconsistent with the evaluation criteria. Id. at 21.
ii. The Government’s Response.
The Government responds that WSI’s “attempt to rewrite the evaluation plan ... by reducing the evaluation process to a simple mathematical exercise is misleading.” Gov’t Resp. at 23. Regarding the allegation that the SEB did not document how the “Technical Approach” Subfactor scores were determined, the Government explained that following the SEB’s identification of strengths and weaknesses, point scores were determined by “consensus deliberation following definitions set forth in the RFP.” Id. at 24. Therefore, “[t]his process, by its nature, required that subjective judgment calls be made at every step, and is not susceptible to mathematical reverse engineering.” Id.
In addition, the Government disputes WSI’s claim that the decision-making process was arbitrary and capricious, because under the terms of the Solicitation, the SEB was not required to perform a comparison. Id. That was the SSA’s job. Id. Although significant strengths are a “discriminating factor ... significant strengths” alone “do not account for the final scores.” Id. WSI had more “significant strengths” than CIS, but WSI also had six weaknesses compared to CIS’s two weaknesses. See Gov’t Reply at 18.
iii. The Intervenor’s Response.
WSI “cannot identify any way in which the SEB’s evaluation was inconsistent with the criteria set forth in the [Solicitation and the Source Selection Plan ... As long as an agency’s evaluation was reasonable, consistent with the stated evaluation scheme, and in compliance with applicable statutes and regulations, it should be upheld.” See Int. Resp. at 13.
WSI’s argument that the SEB failed to document how it reached the assigned scores is also “unpersuasive.” Id. at 14. The SEB’s conclusions adequately are documented, because “[g]iven the voluminous record, there should be no difficulty in determining the basis upon which award was made.” Id. Likewise, WSI’s criticism that the SEB failed to conduct a comparative assessment of the two proposals, reflects a misunderstanding of the evaluation process. Id. Neither the procedures nor the evaluation criteria set forth in the Solicitation requires a comparative analysis. Id. Moreover, if WSI “believed that a comparative assessment of the proposals [was] required by law and/or regulation, [WSI] should have protested on that basis prior to the date for receipt of proposals.” Id. At this juncture, however, WSI cannot challenge the process used to determined the rating and scoring of the “Technical Approach” Subfactor. Id.
iv. The Court’s Resolution.
There is no evidence in the Administrative Record, or otherwise, that the SEB overtly favored CIS over WSI in violation of FAR 15.306(e)(1)
On the other hand, as the United States Supreme Court restated in Florida Power & Light v. Lorion, 470 U.S. 729, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985), “The task of the reviewing court is to apply the appropriate APA standard of review ... to the agency decision based on the record the agency presents to the reviewing court[.]” Id. at 743-44, 105 S.Ct. 1598 (emphasis added).
In this case, the Administrative Record includes thirty-seven SEB Preliminary Worksheets, evaluating CIS’s Initial Proposal under the “Technical Approach” Subfactor. See AR at 12204-40. The Administrative Record, however, includes only thirteen SEB Final Worksheets, evaluating CIS’s Final Proposal under the “Technical Approach” Subfactor. Id. at 26359-71.
Of the thirty-seven Preliminary Worksheets, only two included changes. Co?npare AR at 12216 ivith AR at 26363 (Security Training Program); also compojre AR at 12234 with AR at 26368 (Center Canine Training and Operations). In addition, three categories that were not included in CIS’s Initial Proposal received a Final Evaluation, i.e., AR at 26359 (Quality Assurance Organizational Structure); AR at 26360 (Formal Continuous Process Improvement); and AR at 26371 (Cross Training Fire and Security Personnel).
Specifically, two SEB Preliminary Worksheets were changed in the Final Worksheets, ie., the Security Training Program element and the Center Canine Training and Operations element. As to the Security Training Program element, the Preliminary Worksheet states that:
The proposal describes a complete training approach [deleted].
Id. at 26363.
In addition to those assessments, the Final Worksheet also states that:
The offeror has provided additional detailed information regarding their proposed approach to security training. The proposed approach gives clear evidence of a thorough understanding of NASA’s training requirements. The proposal is both innovative and comprehensive in the following ways:
• [deleted].
Id. (emphasis added).
The Administrative Record, however, contains no discussion or analysis of how the SEB’s decision to increase CIS’s Security Training Program rating from a “strength” to a “significant strength” affected CIS’s point score for this element and the amount of any score increase. Id.; see also TR at 62-63.
As for the Preliminary Worksheet for the Center Canine Training and Operations element, it states that:
[deleted]
Id. at 12234.
In contrast to the Security Training Program element, the Center Canine Training and Operations element initially was not rated. Id. In the Final Worksheet, however, the SEB rated the Center Canine Training- and Operations element as a “regular strength,” because:
[deleted]
AR at 26368.
Again, the Administrative Record contains no discussion or analysis of how the SEB’s decision to accord CIS’s “Technical Approach” Subfactor a “regular strength" rating affected CIS’s ¡mint score for this element and the amount of any score increase. Id.; see also TR at 62-66.
In addition, as previously discussed, CIS appropriately addressed three additional elements in the Final Proposal, not required by the Solicitation. First, under the “Technical Approach” overall element, CIS proposed:
[deleted] AR
at 26359.
This new addition to CIS’s proposal was considered a “regular strength,” but the Administrative Record contains no discussion or analysis of how this rating affected CIS’s “Technical Approach” Subfactor point score and the amount of any score increase. Id.; see also TR at 62-66.
Second, CIS’s Final Proposal, also proposed:
[deleted]
AR at 26360 (emphasis added).
Again, this new addition to CIS’s Final Proposal was considered a “significant strength.” Id.
The SEB’s point scores are entitled to deference, but only if the underlying decisions properly are explained in the Administrative Record. See, e.g., Femme Comp, Inc. v. United States, 83 Fed.Cl. 704, 768 (2008) (need for adequate agency documentation); 210 Earll, L.L. C. v. United States, 77 Fed. Cl. 710, 720 (2006) (holding that an agency is required “to provide ‘a coherent and reasonable explanation of its exercise of discretion[.]’ ”) (citation omitted); Opti-Lite Optical, 99-1 C.P.D. 1161, 1999 WL 152145, at *3 (1999) (“While adjectival ratings and point scores are useful as guides to decision-making, they generally are not controlling, but rather must be supported by documentation of the relative differences between the proposals, their strengths, weaknesses and risks, and the basis and reasons for the ... decision.”) (emphasis added); see also Ralph C. Nash & John Cibinic, “Source Selection: A Variety Of Agency Guidance,” 3 No. 8 Nash & Cibinic Rep. H60 (August, 1989) at 4 (“There is a slow trend toward conferring a significant amount of discretion on source selection officials. This is exhibited by the number of documents prohibiting numerical scoring of certain factors and the requirement in most of them that evaluators prepare substantial narrative justification for the scores the give. ”) (emphasis added).
In this case, the court has determined that the SEB violated the APA by failing to create a record to explain and justify the [deleted] increase in point score, or [deleted]% increase, between the SEB’s Preliminary and Final Findings as to CIS’s “Technical Approach” Subfaetor, so that the court can determine whether the SEB acted in an arbitrary and capricious manner. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (“[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action and the choice made ... In reviewing that explanation, we must consider whether the decision ... was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’j (emphasis added).
As the court observed during oral argument:
THE COURT: Here’s where I have my problem, one of my problems with this record. I was extraordinarily impressed with the amount of detail in the record but for two significant places.
One is under the mission suitability factor. When they began the technical evaluation CIS’s score was [deleted], and it popped up to [deleted], moving it up to an [deleted] rating. There is not a word in any of these worksheets that justifies why that increase happened. Not a word.
It’s in staik comparison to other places in the evaluation where, and this is different in terms of the—there are other places where they talk about what happened during the discussion[.]
There are other places where they actually go and do that analysis, but not in this technical area where the scores jump so dramatically. You would expect if any place they would do it it would be here.
So I have no basis in the record, from what I can see, to decide whether that jump in score, which was significant in terms of who received the contract, whether what they did was rational or not because there’s no explanation. All we have is the scores.
It’s fine that they were done by consensus. It’s fine. I mean, the Plaintiff didn’t make this argument directly unfortunately, but to me it’s the most compelling problem with this entire record. You can see how it changes. In other areas they do that. In this area, nothing.
*298 So it makes we wonder what in the world happened? How did they get all those additional points and increase their rating, and why was none of that discussed?
Okay. Now, we have the same problem, but to a lesser extent, in the small business factor score.21 When they began their score was [deleted]. They end up with [deleted].
They get a [deleted] [point] increase in their rating, and yet when you look at the evaluation sheets of those areas— there’s only one evaluation sheet, by the way, on that—not one word about why the scores change and based on what. So I don’t have an ability to say based on this record that what they did was appropriate on those two areas. That also, I might add, was never pointed out by the Plaintiff, but to me those two flaws alone, aside from whatever else he’s been arguing, are really fatal.
Those SEB problems are fatal to the bid protest because of their significance in how the overall rating was presented to the source selection authority. Do you see?
TR at 62-64.
THE COURT: You know, my problem basically is to take a look and do my job appropriately, and when I come to some area you just can’t say oh, well. We rely on the Agency’s discretion and I wave a magic wand over the whole thing. If [so], there’s no reason for me to be involved.
The Administrative Procedures Act, what [it] tell[s] an Agency [is] :.. you [have] a lot of deference, but you’ve got to tell [the public] why you [made a decision]. That’s what I’m missing in this area, in this important area.
You didn’t ... [explain] why those scores jumped so significantly in that area and in the small business area, and that’s what made the difference in the ratings.
TR at 65-66.
THE COURT: [T]his was the most fulsome evaluation I’ve seen, but what stands in contrast is these two critical areas I looked at where the score bumps up. That’s where it falls apart.
You have to wonder why was that? They just got sloppy in those two particular areas, or they didn’t want to explain what happened or it really didn’t happen? That there really was no justification for it?
See, because they were so careful in all the other areas where the score goes up they’re silent about what happens, and that’s why it stands out in contrast.
TR at 79.
In addition, any increase in the “Technical Approach” Subfaetor point score attributed to the [deleted] discussed above violated FAR [deleted], since [deleted] should have been considered as a “[deleted]” Factor. See TR at 101-03.
c. The Scoring And Rating Of The “Management Approach” Subfactor.
The Complaint alleges that the SEB “acting arbitrarily and capriciously, and treated the offerors unequally in rescoring [CIS’s] proposal for the Management Approach Sub-
i. The Plaintiff’s Argument.
WSI argues that the point scoring and rating of the “Management Approach” Sub-factor, like the “Technical Approach” Subfactor, was arbitrary and capricious, since the SEB:
did not document how it arrived at these scores, anymore than it did for the Technical Approach subfactor[,] however, unlike like the Technical Approach subfaetor[,] this scoring was arbitrary[,] for a different reason—namely, that the SEB treated [CIS] more favorably than WSI with regard to the same evaluation adjustment. PI. Mot. at 25.
Under the “Management Approach” Sub-factor, WSI initially received a rating of “[deleted]” and a point score of [deleted] out of [deleted] possible points. See AR at 26658. On the other hand, CIS received an initial “[deleted]” rating and a [deleted] point score. Id. In addition, the SEB initially assigned both CIS and WSI a “regular weakness” for their respective labor relations plans. Id. at 26436, 26452; see also PI. Mot. at 25. After further discussions, the SEB eliminated that weakness for both offerors, resulting in an increase to WSI’s point score from [deleted] to [deleted]; however, CIS’s score increased from [deleted] to [deleted]. See AR at 26658. WSI argues that “[b]ased on this disparity, [CIS’s] weighted score increased by [[deleted]] points, [but] WSI’s weighted score increased by only [[deleted]] points, dramatically affecting the total scoring results.” PL Mot. at 25. The SEB explained that the difference also was the result of the SEB’s “increased ... appreciation for [CIS’s] web portal.” Id. CIS’s web portal, however, previously was identified as a “significant strength” and therefore the SEB’s additional [deleted]% point score increase was improper. Id. at 25-26. In short, the SEB’s scoring WSI only a [deleted]% over CIS, despite WSI’s [deleted] “significant strengths” was “arbitrary and capricious.” Id. at 26. Moreover, the fact that SEB did not document how the rating and point scoring of the “Management Approach” Subfactor was determined violated the APA. Id. at 25.
In addition, CIS’s “[deleted] significant strength for the Management Approach Sub-factor was a “web portal to [deleted].’ ” Id.; see also AR at 26437. A web portal, however, is a management tool, “and thus fits somewhere within the Management Plan element.” PL Mot. at 16.
ii. The Government’s Response.
The Government responds that although WSI argued that the web portal was a “very narrow part of the subject matter covered by the Management Plan criteria,” the SEB considered it a very significant aspect of CIS’s proposal: “[deleted].” AR at 26437. The significance that the SEB placed on CIS’s web portal was within the agency’s discretion. See Gov’t Resp. at 21. As for the post-award Declaration of Thomas Bragg in the GAO proceeding that there was [deleted], that Declaration should be afforded no weight, since it was irrelevant in the final award decision. Id. at 19-20. Moreover, the fact that CIS’s proposed [deleted] was ample reason for the SEB to rate this element as a “significant strength,” while declining to give WSI an equivalent rating. Id. at 21.
WSI incorrectly assumes that the overall subfactor rating is a strict mathematical addition of all the “significant strengths” minus the “significant weaknesses.” See Gov’t Reply at 19. Rather, the SEB views the factor as a whole and assigns a final percentage.
iii. The Intervenor’s Response.
CIS refutes WSI’s arguments that the scoring of the “Management Approach” Sub-factor was not documented, because the process followed by the SEB was consistent with the RFP and the Source Evaluation Plan. See Int. Resp. at 14.
iv. The Court’s Resolution.
For the reasons previously discussed, the court has determined that the SEB violated the APA by failing to create a record to explain and justify the [deleted] point score increase or [deleted]% increase between the SEB’s Preliminary and Final Findings as to CIS’s “Management Approach” Subfactor so that the court can determine whether the SEB acted in an arbitrary and capricious manner. See infra.
2. The “Past Performance” Factor Determination.
The Complaint alleges that the SEB violated FAR 15.305(a)
The SEB rated both WSI and CIS’s proposals “[deleted]” under the “Past Performance” Factor. See PI. Mot. at 26. WSI argues, however, that it should have received a higher rating, based on a “huge difference in relevant experience between the two offerors,” because “[n]inety-eight percent of the value of [this] contract consists of security services, fire fighting/prevention services, and emergency medical response services.” Id. (citing AR at 2626-28). WSI listed six contract references of such work, including five with NASA. Id. at 27-28.
WSI further challenges the SEB’s “[deleted]” ratings of both proposals, because they do not correlate to the SEB’s assigned strengths and weaknesses for the two proposals. Id. at 31. The SEB found WSI’s proposal had [deleted] strengths but [deleted] weaknesses, compared to CIS’s [deleted] strengths and [deleted]. Id. CIS’s “[deleted]” rating also ignores CIS’s [deleted] and [deleted] WSI’s strengths. Id. at 31-32. CIS could not have received a “[deleted]” rating, unless the [deleted] was ignored, since a “[deleted]” rating “requires that an offeror show past performance with ‘only minor problems with little identifiable effect on overall performance.’” Id. at 31 (citing AR at 1481). CIS’s [deleted] was attributed to the poor performance of a subcontractor:
[deleted]
AR at 26513.
For these reasons, WSI asserts that “[deleted] problem cannot realistically be characterized as ‘minor,’ ” and the overall difference in the strengths and weaknesses assigned to both proposals cannot rationally yield the same adjectival rating. See PI. Mot. at 33. Only WSI had experience [deleted]. See PL Resp. at 5 (citing AR at 20072-73). Overall “WSI has consolidated and integrated 98% of NASA’s solicited services across two geographical locations under one contract.” Id. at 6. Therefore, although WSI did not have experience consolidating services across fourteen locations, “a standard no one can meet,” WSI’s past experience “fits squarely within ... what ‘highly relevant’ experience should be.” Id. Given the “total disconnect” between the assigned strengths and weaknesses and the ultimate adjectival ratings, the SEB acted arbitrarily and capriciously. Id. at 9.
b. The Government’s Response.
The Solicitation defines “Past Performance” as “how well an Offeror performed on earlier work.” AR at 1480. “How well” is a qualitative judgment, that is not based on the number of contracts performed, but instead whether the services provided met the services required. See Gov’t Resp. at 35-37.
WSI received [deleted] “regular strengths” and [deleted] weakness, while CIS received [deleted] “regular strengths” and [deleted] “regular weakness.” Id. at 36. Both proposals were rated “[deleted]” under the “Past Performance” Factor. Id. Athough these adjective ratings necessarily are subjective, the agency should be given flexibility in rat
Moreover, the Administrative Record does not support WSI’s assertion that it has a “far higher degree of relevant experience.” Gov’t Reply, at 5. The Government contests WSI’s claim of having contracts covering “multiple geographic locations,” because the Kennedy Space Center and Cape Canaveral are adjacent to one another, not at separate geographic locations. Id. at 6. Since the Solicitation involved facilities across the entire country, the SEB was justified in determining that WSI had very relevant, but not highly relevant “Past Experience,” thus earning only a “[deleted],” not an “[deleted]” rating. Id.
As for [deleted], the SEB determined that [deleted] past performance did not raise a significant problem affecting CIS’s overall performance regarding this Solicitation. Id. at 7. Under the Source Selection criteria, an offeror could still attain a “[deleted]” rating, if an assigned “weakness” would have “only little identifiable effect on overall performance.” AR at 26681. Therefore, the SEB was well within its discretion in deciding that [deleted] deficiencies only had a minimal effect on CIS’s “[deleted]” rating. See Gov’t Reply at 7.
In addition, CIS’s past performance is consistent with the SEB’s “[deleted]” rating. Id. Specifically, CIS’s multi-location, multiservice [deleted], providing fire emergency and security services, is more relevant than WSI’s Kennedy Space Center/Cape Canaveral contract. Id. Moreover, thirty-three “Past Performance” questionnaires
c. The Intervenor’s Response.
CIS responds that the SEB’s evaluation of WSI and CIS’s past performance is a matter within the discretion of the agency and the court cannot substitute its judgment, where the agency’s decision was “reasonably based.” Int. Resp. at 25. In this ease, the SEB carefully considered the past performance of both offerors. Id. at 26. Because the SEB had a rational basis for assigning both WSI and CIS a “[deleted]” rating for the “Past Performance” Factor, WSI has no basis to contest this determination. Id. at 28.
Moreover, despite WSI’s claims to the contrary, CIS has experience consolidating multiple services, such as fire and security services in multiple geographic locations. See Int. Reply at 18.
d. The Court’s Resolution.
FAR 15.304(c)(3)(i) requires that an evaluation of past performance be conducted “in all source selections for negotiated competitive acquisitions expected to exceed” $1,000,000, unless the agency determines this is not a relevant evaluation factor in light of the particular procurement. See 48 C.F.R. § 15.304(e)(3)(i). In this case, past performance was considered a relevant factor. See AR at 2611-12. Broad discretion, however,' is afforded an agency’s analysis of “Past Performance” Evaluations. See Gulf Group Inc. v. United States, 61 Fed.Cl. 338, 351 (2004) (when reviewing an agency’s “Past Performance” Evaluation, the court should accord, “the greatest deference possible ... to the agency”); see also JWK Int’l Corp. v. United States, 52 Fed.Cl. 650, 659 (2002) (court review of agency “evaluations of an offeror’s ... past performance ... should be limited to determining whether the evaluation was reasonable, consistent with the stated evaluation criteria and complied with relevant statutory and regulatory requirements.”).
In light of the fact that there was no change in the SEB’s Preliminary and Final Findings as to the rating of either proposal, both of which were perceived to be “[deleted],” WSI’s argument that it was entitled to a higher rating is not supported in fact or law.
B. The Decisions Of The Source Selection Authority.
On May 20, 2008, the SEB forwarded a Final Evaluation to the SSA, discussing each proposal’s adjectival ratings and point scores for the “Mission Suitability,” “Past Performance,” and “Price” Factors and conducted a SSA Final Decision Briefing. See AR at 26644, 26657-58. The SSA was required to review the SEB Final Findings and “select the ... proposal [that] is the best value to the Government.” AR at 2604 (citing FAR 15.303(a)(b)).
1. The “Mission Suitability” Factor Determination.
The Complaint alleged that the SSA violated FAR 15.308,
a. The Plaintiffs Argument.
WSI argues that the SSA’s conclusions under the “Mission Suitability” Factor were
Likewise, the SSA improperly concluded that CIS’s web portal was so superior as to offset WSI’s [deleted]. See PI. Resp. at 14; see also TR at 25-30. Again, WSI argues this decision was sufficiently grounded on “critical factual misunderstandings.” PL Resp. at 14.
Second, the SSA mistakenly concluded that “WSI’s proposal demonstrated [deleted] significant strengths compared to only [deleted] for [CIS].” Id. at 16. The SSA had discretion to consider the “significant strengths” of each offeror’s proposal and apply his judgment, but he had to do so consistently with the evaluation criteria. Id. at lb-17. In that regard, the SSA also ignored the fact that WSI’s “significant strengths” covered more areas of the evaluation criteria than CIS’s narrower “significant strengths.” Id. at 17.
Third, “[e]ven if the [c]ourt believed that the [SSA’s ‘Mission Suitability’] finding of equality was not per se arbitrary and capricious, the result is sufficiently counter-intuifive to require a full explanation by the SSA that permits the [e]ourt to prove the reasonableness of that decision.” Id. The SSA addressed only CIS’s [deleted] unique “significant strengths,” but failed to address WSI’s [deleted] unique “significant strengths.” Id. at 18. The SSA never discussed how he determined WSI’s strengths had no more value than CIS’s. Id. The absence of any discussion by the SSA about how he evaluated these strengths is determinative. Id.
Finally, WSI refutes the Government’s argument that WSI mispereeives the SSA’s job as “quantitative” rather than “qualitative.” Id. at 18. The evaluation process begins with the assignment of strengths and weaknesses. Id. at 18-19. Those strengths and weaknesses are translated into adjectival ratings and numerical scores. Id. at 19. WSI admits that the evaluation process is qualitative, however, “[i]f the evaluation process is to mean anything, then a proposal that has more significant strengths than another proposal (all other strengths and weaknesses being equal) is presumptively a better proposal.” Id. The SSA “cannot just ignore the fact that an Outstanding [] rating is quantitatively stronger than a Good [ ] rating or the fact that [a proposal] assigned seven significant strengths is quantitatively stronger than [a proposal] that receives four strengths altogether, only two of which are significant strengths.” Id. at 19-20 (quoting Femme Comp., 88 Fed.Cl. at 770).
b. The Government’s Response.
The Government disputes that WSI’s web portal software was of a similar quality to
Moreover, the court cannot decide this case based on an Administrative Record, different than that before the agency. See Gov’t Reply at 13. WSI failed to show that the Bragg Declaration satisfies the requirements of Rule 702 of the Federal Rules of Evidence, because it does not assist the court “to understand the evidence or to determine a fact in issue.” Id. at 14.
c. The Intervenor’s Response.
CIS takes issue with WSI’s statement that the SSA never saw demonstrations of the offerors’ web portals. See Int. Reply at 5. CIS argues that it would have been “inappropriate for the SSA to have been at the demonstrations of the web portal[,]” because at that point in the evaluation process, “it was the responsibility of the SEB to evaluate the material presented by the offerors.” Id. At the briefing of the SSA, “the superiority of [CIS’s] web portal was extensively documented as a significant strength with respect to [CIS’s] Mission Suitability evaluation[.]” Id. In contrast, WSI’s web portal was not considered a “strength.” Id. at 6. In short, the SSA “was provided with all of the information necessary in order to draw his own conclusions concerning the capabilities offered by each offeror’s respective web portals.” Id. Moreover, [deleted]. Id. at 7. The SEB cannot be faulted for being “so impressed by [CIS’s] [deleted], and so [deleted], and [deleted].” Id. at 9.
CIS also objects to the Bragg Declaration, as it “simply seeks to inject [] extraneous materials into the proceedings that WSI chose not to submit to [the SEB] at the time when it conducted a thorough vetting of the two proposed portal proposals].]” Id. at 10. Both offerors should be evaluated based on their submitted proposals and demonstrations before the SEB, “not the suppositions and speculation of a paid expert hired for this post-award protest litigation.” Id. at 12.
The Administrative Record shows that the SSA spent approximately three hours privately reviewing the evaluation results and was briefed by the SEB on the final results of the evaluation and asked the SEB Chair questions. See Int. Resp. at 28-29 (citing AR at 27451-52). In addition, the SSA’s decision was consistent with the Solicitation’s evaluation criteria, because “his job was not merely to count up the number of strengths and weaknesses of each offeror and award according to a mathematical equation.” Id. at 31. The SSA has “vast technical knowledge as a result of his duties and his involvement in prior acquisitions” and properly exercised his discretion in making a “best value” determination. Id. The SSA “thoroughly considered the technical aspects of both proposals before reaching the conclusion that any advantage [WSI] offered ... did not warrant payment of an additional [deleted] dollar's.” Id. at 31-32.
Since the SSA has broad discretion in a “best value” procurement, the technical/priee tradeoff decision should be examined only to ascertain if it was reasonable and adequately justified, in light of the RFP’s evaluation scheme. Id. at 33-34. This discretion allows the SSA to award the contract to a lower-priced, lower technically-rated proposal, if the SSA determines that the price premium involved in selecting the higher-rated proposal is not justified given the acceptable level of technical competence available at the lower cost. Id. at 34. Moreover, it was not unreasonable for the SSA to select CIS’s Final Proposal, where “the competing bidders have extremely close technical ratings, separated by a mere [[deleted]] points on a 1,000 point scale, and the lower [deleted] less than the other.” Id. Accordingly, the SSA properly and rationally selected CIS’s proposal as the “best value.” Id.
d. The Court’s Resolution.
In Cubic Applications, Inc. v. United States, 37 Fed.Cl. 339 (1997), the United States Court of Federal Claims addressed the limited circumstances under which the
(1) when agency action is not adequately explained in the record before the court;
(2) when the agency failed to consider factors which are relevant to its final decision;
(3) when an agency considered evidence which it failed to include in the record; (4) when a ease is so complex that a court needs more evidence to enable it to understand the issues clearly; (5) in cases where evidence arising after the agency action shows whether the decision was correct or not; (6) in cases where agencies are sued for a failure to take action; (7) in cases arising under the National Environmental Policy Act; and (8) in cases where relief is at issue, especially at the preliminary injunction stage.
Id. at 342 (citing Esch v. Yeutter, 876 F.2d 976, 991 (D.C.Cir.1989)).
In this case, the Government’s post-award, post-GAO decision correction conceding that the SEB misunderstood the nature of WSI’s continuous improvement process, a fact on which the SSA relied, falls squarely within the fifth Cubic Applications exception, and properly should be considered part of the Administrative Record in this ease, particularly since the SSA placed a great deal of weight on CIS’s continuous improvement plan. See Gov’t Resp. at 38; see also AR at 26642-43; TR at 22-23.
On the other hand, the Bragg Declaration does not fit within any of the Ctibic Applications exceptions, nor does it satisfy the requirements of Fed.R.Evid. 702,
Now, to the merits. The SSA was responsible for making a Final Source Selection Decision awarding the contract to the “responsible Offeror whose proposal results in the best value to the Government.” AR at 1472 (emphasis added). The SSA compared the SEB Final Findings regarding both the WSI and CIS proposals. Id. at 26642-43. The SSA, however, mistakenly afforded more weight to CIS’s “continuous improvement plan,” than WSI’s similar plan. Id. at 26642, 26434. Accordingly, the court has determined that the SSA’s resulting conclusion that the “Mission Suitability” Factor between WSI’s and CIS’s proposals “was basically equal,” ipso facto was “arbitrary and capricious.” In contrast, the SSA’s conclusion that, although WSI had a “marginal advantage” as to the “Past Performance” Factor, WSI and CIS “could perform the contract effectively since both had successfully performed Government contracts directly related to the NPSC” was supported by the Administrative Record. Id. at 26643. .
The SSA’s dispositive error,
As the court observed during oral argument:
THE COURT: There’s no technical tradeoff whatsoever in that document. It just wasn’t done. [The SSA] may have [done] it in his mind, but he’s got to write it down, you see[.]
TR at 65.
As I said before, the [SSA]’s decision is not adequate either. He didn’t even make an attempt to discuss the tradeoff. He said I thought one was needed. End of sentence. And so what was [the SSA’s] tradeoff?
TR at 74-75.
2. The “Past Performance” Factor Determination.
The Complaint alleges that the SSA acted “arbitrarily and capriciously, and abused his discretion,” by concluding that the two proposals were equal for the “Past Performance” Factor, “despite the differences in strengths and weaknesses assigned by the SEB.” Compl. H 35d.
a. The Plaintiffs Argument.
WSI argues that the SSA perpetuated the SEB’s errors in determining the “Past Per
Moreover, the SSA acted arbitrarily and capriciously in concluding that the two offerors’ proposals were equal under the “Past Performance” Factor. See PI. Resp. at 11. The SSA failed to account for the difference in experience between WSI and CIS and the difference in the quality of performance. Id. Overall, the SSA’s “justification for treating the proposals as equal for this factor was ... no more than an empty recitation that was contrary to fact and devoid of serious analysis.” Id. at 12.
b. The Government’s Response.
The Government responds that WSI merely “rehashes its earlier argument relating to the Past Performance, ... [f]or reasons previously discussed, the Very good’ rating received by [CIS] was justified, and the SSA did not act in an arbitrary and capricious manner by concluding that WSI only had a marginal advantage in Past Performance as compared to [CIS].” Gov’t Resp. at 39.
The SEB was correct in assigning CIS a “[deleted]” rating under the “Past Performance” Factor, and the SSA did not act arbitrarily in treating the competing proposals for “Past Performance” as basically equal. See Gov’t Reply at 8-10.
c. The Intervenor’s Response.
CIS responds that NASA fully considered [deleted] past performance and how it would affect CIS’s “Past Performance” Factor rating overall. See Int. Reply at 17. Moreover, the SSA reasonably determined that [deleted] would have only a limited role in the performance of the contract and prior problems with the Air Force contract were irrelevant. Id.
d. The Court’s Resolution.
The Complaint alleges no FAR violation regarding the SSA’s evaluation of the SEB’s “Past Performance” Factor, however, the Complaint alleges that the SSA acted “arbitrarily and capriciously and abused his discretion” by inappropriately relying on the SEB Final Findings. See Compl. II 35(e). For the reasons previously discussed, the court discerns no error in the SEB’s “Past Performance” Factor analysis, nor in the SSA’s apparent reliance thereon.
3. The “Price” Factor Determination.
The SSA’s Final Source Selection Decision concluded: “[CIS’s] proposal offered a better value to the Government given its proposed price was more than [deleted]% lower than the price [WSI] proposed while its Mission Suitability and Past Performance proposals were essentially equal to [WSI].” AR at 26643. Although WSI did not challenge the SSA’s “Price” Factor determination, in reviewing the Administrative Record the court noticed that the Meeting Minutes for the SSA Final Decision Briefing reflected that the last item of business was the Chair of the Business Committee, PS-SEB, Contracting Officer requested “authorization to include, as part of modification 1, an increase in the contract’s [Not-To-Exceed] amounts to $[deleted] [million] for the Base and $[deleted] for each option year. Bill McNally
The Source Evaluation Plan provides:
B.8 INDEFINITE DELIVER INDEFINITE QUANTITY (IDIQ)—LIMI-TATIONS
(a) For the purpose of placing a maximum Not>-To-Exceed (NTE) amount on tMs contract, the maximum amount of IDIQ supplies and services ordered in total under tMs contract shall not exceed the maximum NTE amount of $650M for the five year basic period of performance and $130M per option year for a total NTE maximum amount of $1.3B. The maximum NTE amount is an estimate and does not reflect an obligation of the Government. The Government’s obligation hereunder shall be based on that specified in the task orders issued during the effective ordering period for this contract as depicted in Clause F.2—Effective Ordering Period.
(c) In order to accommodate upward fluctuations of workload requirements during the performance period of tMs contract, the maximum NTE amount may be adjusted unilaterally by the Contracting Officer on an annual basis. In no event, mil the adjusted maximum amount exceed 20 of the total $1.3B NTE maximum amount. AR at 12 (bold and underline in original, other emphasis added).
Athough the Contracting Officer had authority to adjust the NTE amount as set forth in the Source Evaluation Plan, there is not one word of explanation or analysis in the Administrative Record of why a $[deleted] million increase was required for the base period, ie., yeai's 1-5, much less an additional $[deleted] million for the option periods, ie., years 6-10. The need to increase the NTE at tMs juncture is particularly troublesome to the court, since the price of CIS’s phase-in for years 1-5, did not exceed the $650 NTE set forth in the Source Evaluation Plan. Compare AR at 26212 with AR at 12. Moreover, NASA estimated that CIS’s “continuous improvement program” potentially could be worth as much as $[deleted] billion, if all the options are exercised. See Gov’t Resp. at 17; see also AR at 12. Therefore, the May 20, 2008 increase of the NTE amount from $[deleted] million to $[deleted] million, at least for the phase-in and base period, ie., years 1-5, appears to be unwarranted, “arbitrary[,] and capricious.”
Moreover, it appears from the Administrative Record, that CIS’s award for the phase-in and base period, ie., years 1-5, of $[deleted] could be increased by $[deleted] for a total of $[deleted], in wMch case, CIS could receive $[deleted] more for the phase-in and base period than WSI’s bid.
VII. PLAINTIFF HAS ESTABLISHED PREJUDICE.
In addition to establisMng a violation of the law or a regulation, a protestor must also show that the violation caused the protestor prejudice. See Bannum, 404 F.3d at 1351 (“[I]f the trial court finds that the government’s conduct fails the APA review ... then it proceeds to determme, as a factual matter, if the bid protestor was prejudiced by that conduct.”); see also Impresa, 238 F.3d at 1333 (“When a challenge is brought on the second ground, the disappointed bidder must show ‘a clear and prejudicial violation of applicable statutes or regulations.’”) (citations omitted). A claim on the merits of a bid protest will oMy succeed if both requirements are satisfied. See Bannum, 404 F.3d at 1351; see also Galen Med. Assocs., 369 F.3d at 1330 (“ ‘[T]o prevail in a protest the protester must show not only a significant error in the procurement process, but also that the error prejudiced it.’ ” (quoting Data Gen. Corp., 78 F.3d at 1562) (alterations in original)). Prejudice, in this context, requires the protestor to show a “substantial chance” that it would have received the contract award, but for the APA error. See Bannum, 404 F.3d at 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 ... errors in the bid process.”); see also Metcalf Constr. Co. v. United States, 53 Fed.Cl. 617, 622 (2002) (“[M]inor errors or irregularities, ie., harmless errors, committed in the course
In this case, because WSI was the only-other bidder determined to be in the competitive range, but for the award to CIS, WSI likely would have been awarded the contract. See AR at 12553, 12897. This is particularly the ease, where WSI’s “Mission Suitability” Factor final score was [deleted] out of a total 1,000 possible points, WSI’s “Past Performance” Factor of “[deleted]” was the same as CIS, and these two Factors combined were “significantly more important” than the “Price” Factor in awarding the contract. See AR at 1483, 26658.
VIII. PLAINTIFF IS ENTITLED TO LIMITED INJUNCTIVE RELIEF.
A. Governing Precedent Regarding Relief In Bid Protest Cases.
As a matter of law, the United States Court of Federal Claims in a bid protest case has authority:
(2) To afford relief in such an action, the courts may award any relief that the court considers proper, including declaratory and injunctive relieff,] except that any monetary relief shall be limited to bid preparation and proposal costs.
(3) In exercising jurisdiction under this subsection, the courts shall give due regard to the interests of national defense and national security and the need for expeditious resolution of the action.
28 U.S.C. §§ 1491(b)(2), (3); see also LABAT-Anderson, Inc. v. United States, 65 Fed.Cl. 570, 576 (2005) (“Title 28 U.S.C. § 1491(b)(2) authorizes this court to ‘award any relief that the court considers proper, including declaratory and injunctive relief.’ ”); Labat-Anderson, 42 Fed.Cl. at 832 (“The court has jurisdiction over this bid protest action pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1) (1994), which grants it authority to render judgment upon claims for breach of an implied contract to have bids and proposals ‘fairly and honestly considered.’ ”) (citation omitted).
The United States Court of Appeals for the Federal Circuit, however, has held that the court is not required to set aside an arbitrary, capricious, or otherwise unlawful contract award. See PGBA, LLC v. United States, 389 F.3d 1219, 1226 (Fed.Cir.2004) (“We thus hold that, in a bid protest action, [28 U.S.C. § ] 1491(b)(4) does not automatically require a court to set aside an arbitrary, capricious, or otherwise unlawful contract award.”). On the other hand, the United States Court of Appeals for the Federal Circuit reasoned, “there is no evidence that Congress intended to abolish the tradition of equitable discretion in issuing injunctive relief when it enacted section 1491(b)(4) in ADRA.” Id. at 1227; see also id. at 1226 (“This construction is consistent with the language of 28 U.S.C. § 1491(b)(2), which, through use of the permissive ‘may,’ provides the United States Court of Federal Claims with discretion in fashioning relief.”). Accordingly, procurement error does not necessarily require the trial court to order equitable relief, but to decide instead whether to issue the injunction. Id. at 1228-29 (emphasis added).
In deciding whether to issue an injunction the court must consider:
(1) whether, ... the plaintiff has succeeded on the merits of the case; (2) whether the plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3) whether the balance of hardships to the respective parties favors the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive relief. See Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542[ ] (1987) (“The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success.”).
Id.
None of these individual factors, however, is determinative and “the weakness of ... one factor may be overborne by the strength of others.” FMC Corp. v. United States, 3 F.3d 424, 427 (Fed.Cir.1993).
The Complaint requests that the court:
A. Find and declare that the Government has acted arbitrarily and capriciously, abused its discretion, and acted contrary to law in its evaluation procedures and in awarding the contract to [CIS];
B. Enter ... preliminary and permanent injunctions, to require the Government to (i) stay the performance of [CIS’s] contract, and (ii) to correct the evaluation errors determined in this action and then to make a proper award decision after a technical/price tradeoff, in accordance with the Solicitation’s award criteria, to determine whether WSI’s great proposal strengths are worth a [deleted]% price differential.
C. Award WSI’s costs incurred in this action, and
D. Provide such other and further relief as the Court [deems] just and proper.
Compl. II42.
C. The Court’s Resolution.
1. Plaintiff Has Demonstrated Success On The Merits Regarding Specific Issues.
For the court to award equitable relief, a protester must have prevailed on the merits. See PGBA, 389 F.3d at 1229. In this case, as previously discussed herein, the court has determined that the SEB and SSA have violated the APA, and certain FAR regulations, demonstrating success on the merits.
2. Plaintiff Has Established Irreparable Harm, If The Court Does Not Grant Injunctive Relief.
The second substantive consideration is whether the protester will suffer irreparable harm, if the court does not grant injunctive relief. See PGBA, 389 F.3d at 1229. When assessing irreparable injury, the relevant inquiry is whether the protester has an adequate remedy, in the absence of an injunction. See OTI Am., Inc., 68 Fed.Cl. 646, 659 (2005) (quoting PGBA, LLC v. United States, 60 Fed.Cl. at 221, aff'd, 389 F.3d 1219 (2004)). The United States Court of Federal Claims has held that a protester suffers irreparable injury, when it has been deprived the opportunity to compete fairly for a contract. See Cardinal Maint. Serv., Inc. v. United States, 63 Fed.Cl. 98, 110 (2004) (“It is well-settled that a party suffers irreparable injury when it loses the opportunity to compete on a level playing field with other bidders---- Irreparable injury includes, but is not limited to, lost profits which would flow from the contract.” (citing Hunt Bldg. Co., Ltd. v. United States, 61 Fed.Cl. 243, 280 (2004) (“[The awardee,] will be harmed by having to undergo a recompetition-but not as severely as [, the losing bidder,] would be, if the unfair selection were allowed to stand.” The awardee “will still be able to compete, [but] this time on equal footing with ... whereas absent injunctive relief, [the losing bidder] will have been unfairly denied a meaningful opportunity to compete. On balance, injunctive relief is warranted to remedy the unfair process here.”))); see also SAI Indus. v. United States, 60 Fed.Cl. 731, 747 (2004) (“Irreparable injury can be shown in the ‘form of lost opportunity to fairly compete for and perform work under the contract, including but not limited to lost profits that would generate therefrom.’” (quoting Metcalf Constr. Co., Inc. v. United States, 53 Fed.Cl. 617, 645 (2002))).
In this case, the Government has awarded a $1.186 billion contract for a ten-year term that may be extended to ten year’s in total at a potential cost of $1.62 billion. See AR at 12, 26421, 26638, 26708. The Administrative Record, however, does not provide the court with sufficient information to quantify the potential profit each offeror could earn during the term of this contract. WSI, however, has committed substantial resources to challenge the procurement in the GAO and the United States Court of Federal Claims. Therefore, unless WSI is afforded limited injunctive relief, WSI will be deprived of the opportunity to compete fairly and equally for this very significant contract.
3. In This Case, A Balance Of Hardships To The Parties Favors The Grant Of Limited Injunctive Relief.
The third substantive consideration is whether the balance of hardships to the
Given the minimal impact of limited injunctive relief on NASA, the balance of the hardships favors the grant of injunctive relief. The minimal additional time and expense involved in requiring NASA to have members of the SEB re-evaluate key elements of the “Mission Suitability” Factor and “Price” Factor and for the new SSA re-evaluate the SEB’s reconsidered Final Findings to select the proposal that is the “best value” to the Government is outweighed by the importance of allowing WSI the opportunity to compete fairly for this contract.
4. In This Case, The Public Interest Weighs in Favor of Limited Injunctive Relief.
The final consideration is whether it is in the public interest to grant injunctive relief. See PGBA, 389 F.3d at 1229. It has long been recognized that the public interest is served by an injunction that is designed to ensure that the procurement process is conducted pursuant to law. See LABAT-Anderson, 65 Fed.Cl. at 581 (“[T]here is an overriding public interest in preserving the integrity of the federal procurement process by requiring government officials to follow procurement statutes and regulations.”) (citations omitted); see also SAI Indus., 60 Fed. Cl. at 747 (“The public’s interest is clearly served when suppliers engage in fair and robust competition for government contracts. Healthy competition ensures that the costs to the taxpayer will be minimized. In addition, granting this injunction will ensure that this procurement is conducted according to all applicable procurement laws and regulations.”); Al Ghanim Combined Group Co. Gen. Trad. & Cont. W.L.L. v. United States, 56 Fed.Cl. 502, 521 (2003) (“[T]he public interest is served by enforcing a procurement process that conforms with regulatory authority and the solicitation’s evaluation criteria.” (citing Essex Electro Eng’rs, Inc. v. United States, 3 Cl.Ct. 277, 288 (1983))).
Therefore, the court has determined that a limited injunction directing NASA to reexamine the Proposals submitted in response to the Solicitation and comply with the terms of the Solicitation, the APA and relevant provisions of the FAR is in the public interest. See TRW Envtl. Safety Sys., Inc. v. United States, 18 Cl.Ct. 33, 43 (1989) (“As a general proposition, while a contracting officer may exercise wide discretion in his evaluation of bids and in the application of procurement regulations, particularly in negotiated procurements, the ultimate obligation of the agency is to treat all bidders fairly and give full consideration to all bids.”).
IX. CONCLUSION.
For the reasons discussed herein, the court has determined that the SEB and SSA violated FAR regulations and the APA. Accordingly, the SSA’s May 20, 2008 award of a contract to CIS, pursuant to the September 14, 2007 FPP NO. NNX077040R Solicitation, is enjoined and set aside. NASA is hereby ordered to appoint a re-constructed SEB, specifically to include new SEB members to evaluate the Final “Technical Approach” Subfactor, “Management Approach” Subfaetor, and “Small Business” Subfactor of the “Mission Suitability” Factor, with particular emphasis on explaining the SEB’s reasons for arriving at final adjectival ratings, point scores, and any increase thereof. The SEB will then issue reconsidered Final Findings. In addition, NASA is hereby ordered to appoint a new SSA to evaluate the reconsidered Final Findings and, on or before March 2, 2009, to issue a reconsidered Source Selection Authority Final Decision explaining, in
The court emphasizes that NASA is expected to correct the FAR and APA violations, discussed herein, and to address the court’s concern that the SEB’s reconsidered Final Findings reflect the SEB’s independent evaluation and that the SSA’s reconsidered Final Source Selection Decision reflect the SSA’s independent and considered judgment as to the proposal that provides the “best value” to the Government. In addition, to the extent that the Contracting Officer, SEB, and/or SSA again determines that the NTE must be increased at this time, in excess of the provisions of Section B.8(a),(c) of the Source Evaluation Plan, the court orders that a comprehensive explanation and analysis be included in the Source Selection Authority’s Final Decision provided to the court.
IT IS SO ORDERED.
. FAR 15.101 provides:
An agency can obtain best value in negotiated acquisitions by using any one or a combination of source selection approaches. In different types of acquisitions, the relative importance of cost or price may vary .... The less definitive the requirement, the more development work required, or the greater the performance risk, the more technical or past performance considerations may play a dominant role in source selection.
48 C.F.R. § 15.101.
. CIS is a subsidiary of Akal Security, Inc., a privately held company headquartered in Española, New Mexico with 15,000 offices in forty-three states and abroad, and annual revenues exceeding $500 million. See AR at 12562; see also http://www.manta.com/coms2/dnbcompany_ yhvOk. CIS, headquartered in Lorton, Virginia, is a “major security services company,” providing protective services to federal agencies, the U.S. military, and public utilities. AR at 12562. At present, CIS provides protective services at the Marshall Space Flight Center and Michoud Assembly Facility. Id.
. OMNISEC is a joint venture of [deleted] and [deleted]. See AR at 12563. [Deleted] previously provided services at NASA Headquarters, Stennis, and Johnson Space Centers. Id. [Deleted], headquartered in [deleted], Virginia, has [deleted] employees in [deleted] countries. Id.
. Protective Services Alliance is a limited liability company comprised of Day & Zimmerman Federal Services LLC (“D & Z”) and Security Operations Consulting — Security Management Group, Inc. ("SOC-SMG") [deleted]. See AR at 12563. D & Z, headquartered in Philadelphia, has over 23,000 employees in 150 locations world-wide. Id. SOC-SMG, located in Minden, Nevada, also provides force protection and security internationally. Id.
. Sec Tek, Inc., headquartered in Reston, Virginia, has been providing security protective services since 1992. See AR at 12564. Currently, Sec Tek provides security services to NASA's Ames Research Center, Goddard Space Flight Center, and Headquarters. Id. Previously, these services also were provided to Glenn Research Center. Id.
. WSI, a subsidiary of Group 4 Securicor, a U.K. firm, is a private security and investigation firm, headquartered in Palm Beach Gardens, Florida. See AR at 12564. Founded in 1954, WSI has provided security services to five NASA locations, i.e., Kennedy Space Center, Johnson Space Center, Dryden Flight Research Center, Ames Research Center, and White Sand Testing Facility. Id.; see also http://en.wikipedia.org/wild/ wackenhut. In addition, WSI provides fire and security services for the Jet Propulsion Laboratory. See AR at 12564. In 2002, WSI had $2.8 billion in revenue and operated in fifty-four countries. See http://en.wikipedia.org/wiki/ wackenhut.
. The WSI phase-in price, quoted here as $ [deleted], is different from the WSI phase-in price of $ [deleted] quoted in the rest of the Administrative Record. See AR at 26185, 26200, 26211. The court assumes the difference is the result of a typographical error.
. The term " 'interested party' ... with respect to a contract or a solicitation or other request for offers described in paragraph (1), means an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” 31 U.S.C. § 3551 (2)(A).
. Perhaps, the cause of "verbal gymnastics” surrounding the "substantial chance” test arises because bid protests simply arise in many different procurement contexts. See, e.g., Myers, 275 F.3d 1366 (involving a sole-source procurement); Info. Tech. & Applications, 316 F.3d 1312 (involving a lowest priced, technically acceptable procurement); United States v. Int'l Bus. Machines Corp., 892 F.2d 1006 (Fed.Cir. 1989) (involving a sealed bid, lowest price procurement).
. On June 20, 2006, the Clerk of the United States Court of Federal Claims issued changes to the Rules of the United States Court of Federal Claims. In part, the amended rules supplant RCFC 56.1 with a new RCFC 52.1. The new RCFC 52.1(a) makes provisions for the filing of the administrative record in certain cases. See RCFC 52.1(a) ("In all cases in which action by, and a record of proceedings before, an agency is relevant to a decision, the administrative record of such proceedings shall be certified by the agency or agencies and filed with the court. The court may by order, including a scheduling order entered pursuant to RCFC 16(b) and Appendix A or C, establish a time for filing the administrative record."). RCFC 52.1(b) permits any party to “move for partial or other judgment on the administrative record" and sets forth the relevant
RCFC 52.1 has no [Federal Rules of Civil Procedure] counterpart. The rule replaces an earlier rule, RCFC 56.1, that applied certain standards borrowed from the procedure for summary judgment to review of an agency decision on the basis of an administrative record. That incorporation proved to be confusing in practice because only a portion of the summary judgment standards were borrowed____ Specifically, the now repealed Rule 56.1 did
not adopt the overall standard that summary judgment might be appropriate where there were no genuine issues of material fact. See RCFC 56(c). Nonetheless, despite this omission, parties, in moving for judgment on the administrative record under the prior rule, frequently would contest whether the administrative record showed the existence of a genuine dispute of material fact. To avoid this confusion, the new rule omits any reference to summaty judgment or to the standards applicable to summary judgment.
RCFC 52. 1, Rules Comm. Note (June 20, 2006).
. During oral argument, WSI conceded and the Government concurred, that WSI’s argument contesting a "regular weakness" assigned by the SEB under the “Technical Approach” Subfactor of the "Mission Suitability” Factor was no longer at issue, and because WSI did not plead this claim with specificity and the SSA’s Final Decision did not take this "weakness” into consideration. See RCFC 7(b)(1) (requiring a complaint to “state with particularity the grounds” therefore:); see also TR at 10-12, 100.
. The five components of the “General [Understanding]” element [that is one of the two elements of the "Understanding of the Requirements” element of the Technical Approach Sub-factor] are:
(1) The Offeror’s identified critical work functions to be accomplished^]
(2) The Offeror’s demonstrated understanding of the key contract performance characteristics[J
(3) The Offeror’s approach to quality management (quality control and quality assurance), including how the offeror will use quality organization processes, proceduresf.]
(4) The Offeror’s technical approach to performing the requirements of the PWS and task orders in relation to their proposed labor resource requirements^]
(5) The Offeror’s approach to work management and controls [.]
AR at 1474 (emphasis added).
. FAR 15.306(e)(1) provides:
Limits on exchanges. Government personnel involved in the acquisition shall not engage in conduct that — favors one offeror over another.
48 C.F.R. § 15.306(e)(1).
. Supra note 13.
. FAR 15.306(e)(2)-(5) provides:
(e) Limits on exchanges. Government personnel involved in the acquisition shall not engage in conduct that—
(2) Reveals an offeror's technical solution, including unique technology, innovative and unique uses of commercial items, or any information that would compromise an offeror's intellectual property to another offeror;
(3) Reveals an offerors price without that offeror's permission. However, the contracting officer may inform an offeror that its price is considered by the Government to be too high, or too low, and reveal the results of the analysis supporting that conclusion. It is also permissible, at the Government's discretion, to indicate to all offerors the cost or price that the Government’s price analysis, market research, and other reviews have identified as reasonable (41 U.S.C. 423(h)(l)(2));
(4) Reveals the names of individuals providing reference information about an offeror's past performance; or
(5) Knowingly furnishes source selection information in violation of 3.104 and 41 U.S.C. 423(h)(l)(2).
48 C.F.R. 15.306(e)(2)-(5).
. FAR 306(d)(2). states;
The primary objective of discussions is to maximize the Government's ability to obtain best value, based on the requirement and the evaluation factors set forth in the Solicitation.
48 C.F.R. § 306(d)(2).
. The court assumes that the absence of 24 of the SEB Final Evaluations from the Administrative Record reflects that no changes were made from the Preliminaiy Worksheets.
. The Solicitation clearly invited and confirmed that "any proposed enhancements to the contract requirements under the Mission Suitability sub-factor” would be evaluated, if the "Offeror agrees to include proposed enhancements ... in the final contract.” AR at 1473. Therefore, the SEB violated no law nor FAR regulation in re
. In addition, the Administrative Record does not discuss the extent of [deleted] involvement in this contract and why [deleted] proposed work was considered to be positive development, in light of prior issues concerning [deleted] controversial subcontractor performance on a different federal government contract. Compare AR at 26360 with AR at 26513.
. As the FAR [deleted], [deleted] 48 C.F.R. [deleted] (emphasis added).
. The Administrative Record also evidences that five elements of the "Small Business” Subfactor were rated. See AR at 12198-202. Only two elements reflected changes between the Preliminary and Final Worksheets. Compare AR at 12202 with AR at 26357; compare also AR at 12202 with AR át 26356. CIS’s "Small Business” rating was increased from "[deleted]” to a final rating of "[deleted].” See AR at 26658. CIS’s point score increased from [deleted] to [deleted] points or a [deleted]% increase, based on a change from a "Significant Weakness” to a “Significant Strength.” Compare AR at 12202 with AR at 26357. The “Small Business Goal” element also was increased from a "Significant Weakness” to a “Regular Weakness.” Compare AR at 12201 with AR at 26356. WSI’s Complaint does not allege any claim as to the SEB’s Evaluation of the "Small Business” Subfactor of the "Mission Suitability” Factor, however, the court has determined that the same deficiencies identified with regard to other aspects of the “Mission Suitability” Factor are applicable to this Subfactor. See TR at 63-64, 71.
. Moreover, as the Bragg Declaration explains, WSI and CIS both [deleted].
. As the Contracting Officer testified at the GAO hearing:
The SEB voting members assessed each Mission Suitability finding presented by the Committees and reached consensus on the finding type, the wording of each finding, and significance of each finding. Once the findings were complete, the Voting Members reached con*300 sensus on the Adjectival Rating for each Mission Suitability subfactor. Once adjectival ratings were assigned, consensus was then reached on a percentage rating for each sub-factor within the range established for each adjectival rating. The percentage was then multiplied by the number of points available for each subfactor to arrive at the numerical score.
AR at 27382.
. The court assumes this citation is a typographical error, as the relevant FAR regulation applicable to the "Past Performance” Evaluation is FAR 15.305(a)(2).
. The six contracts referenced by WSI are:
The NASA Kennedy Space Center and Cape Canaveral Air Force Station. WSI provides consolidated and interoperable fire and security services to NASA’s Kennedy Space Center (KSC) and Cape Canaveral Air Force Station (CCAFS) as a minority partner in Space Gateway Support, Inc. (SGS), a joint venture (JV) between Northrop Grumman and WSI. Specifically, WSI provides key mission support functions for both NASA and the U.S. Air Force (USAF) to include security guard services, fire protection/prevention, emergency medical services and armed security. WSI also operates the KSC/Cape Canaveral Di-
saster Preparedness Control Center, a 9/11 Joint Communication Center (JCC) and incident response command facility. AR at 20072-73.
The Jet Propulsion Laboratory. As a subcontractor to the California Institute of Technology since 1998, WSI has provided NASA "consolidated security, fire protection, and emergency medical services” at the Jet Propulsion Laboratory in Pasadena, California.
Id. at 20073-74.
The Johnson Space Center/White Sands Test Facility. As a subcontractor, WSI has been providing security services to NASA at these facilities since 2002.
Id. at 20075-76.
The NASA Ames Research Center. At this facility, WSI has been providing fire fighting/prevention and emergency medical services since August 2006.
Id. at 20076-77.
The NASA Dryden Flight Research Center. At this facility, WSI has been providing security services since 2004.
Id. at 20077-78.
The Department of Energy Savannah River Site. This is an extremely large DOE security services contract that WSI has been performing since 1999. It includes a paramilitary*301 protective force of approximately [deleted] armed personnel protecting a 310 square mile site.
Id. at 20078-79.
. WSI lists the following as CIS's contract references:
[Deleted]. CIS has provided security services to [deleted] since 2001. Beginning in May 2007, [deleted] into that contract, pursuant to which [CIS] provides security services and a "fire brigade." (A fire brigade is not a professional fire fighting force, but rather a group of individuals trained to provide interim assistance until a fire fighting force arrives at the scene.)
ARat 14131-32.
[Deleted], [CIS] has provided security services through four contracts for the [deleted], and the [deleted] in the [deleted].
Id. at 14134-35.
[Deleted]. [CIS] lists three contracts under which it has provided security services to the [deleted], and [deleted].
Id. at 14135.
[Deleted]. [CIS] has provided security services to [deleted] in this region since 2003.
Id. at 14136.
. WSI summarizes [deleted]’s experience as follows:
[deleted]
ARat 14140-41.
[deleted]
Id. at 14141.
[deleted]
Id. at 14141-42.
[deleted]
Id. at 14142.
[deleted]
Id.
. During oral argument, the Government corrected this statement, because only sixteen questionnaires were sent. See TR at 77.
. During oral argument, WSI’s counsel also pointed out additional errors in the SEB's understanding of how "Past Performance” references were submitted and what appears to be a mis
. FAR 15.305(a)(2), governing the "Past Performance” Evaluation provides:
(i) Past performance information is one indicator of an offeror's ability to perform the contract successfully. The currency and relevance of the information, source of the information, context of the data, and general trends in contractor’s performance shall be considered. This comparative assessment of past performance information is separate from the responsibility determination required under Subpart 9.1.
(ii) The solicitation shall describe the approach for evaluating past performance, including evaluating offerors with no relevant performance history, and shall provide offerors an opportunity to identify past or current contracts (including Federal, State, and local government and private) for efforts similar to the Government requirement. The solicitation shall also authorize offerors to provide information on problems encountered on the identified contracts and the offeror’s corrective actions. The Government shall consider this information, as well as information obtained from any other sources, when evaluating the offeror’s past performance. The source selection authority shall determine the relevance of similar past performance information.
(iii) The evaluation should take into account past performance information regarding predecessor companies, key personnel who have relevant experience, or subcontractors that will perform major or critical aspects of the requirement when such information is relevant to the instant acquisition.
(iv) In the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance.
(v) The evaluation should include the past performance of offerors in complying with subcontracting plan goals for small disadvantaged business (SDB) concerns (see Subpart 19.7), monetary targets for SDB participation (see 19.1202), and notifications submitted under 19.1202—4(b).
48 C.F.R. § 15.305(a)(2).
. FAR 15.308 provides:
The source selection authority’s (SSA) decision shall be based on a comparative assessment of proposals against all source selection criteria in the solicitation. While the SSA may use reports and analyses prepared by others, the source selection decision shall represent the SSA’s independent judgment. The source selection decision shall be documented, and the documentation shall include the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs. Although the rationale for the selection decision must be documented, that documentation need not quantify the tradeoffs that led to the decision.
48 C.F.R. § 15.308 (emphasis added).
. Again, the SSA testified at the GAO hearing:
GAO HEARING OFFICER: And in terms of the continuous improvement plan, did the SEB tell you, do you recall, whether WSI had a continuous improvement plan?
SSA: Yes.
GAO HEARING OFFICER: So you were aware of that?
SSA: Yes. But it was pertaining to the startup or the initial phase-in plan, not for the life of the contract. It was only pertaining to the phase-in plan of the contract. It stopped short of the life of the contract. It was not a continuous process.
GAO HEARING OFFICER: So you understood that WSI’s proposed continuous improvement plan would not actually be in effect for the actual performance of the contract, is that right?
SSA: Correct.
AR at 27470.
. As the SSA further testified at the GAO:
GAO HEARING OFFICER: What was it about [CIS's] significant strengths with web portal and this continuous improvement process that were so important to you?
SSA: Well, the web portal is a way of managing the contract and what [CIS] demonstrated to me through the SEB in my briefing was their web portal [deleted].
AR at 27462.
. Rule 702 of the Federal Rules of Evidence provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Evid. 702.
. Although this was not a factor in the court's determination that the SSA violated the APA, the compressed period of reflection and analysis, either reflects that this high value procurement did not receive appropriate attention by the SSA or the SEB's “Final Findings” were not a completely "independent” recommendation, incorporating the prior views of the SSA.
As the court observed at the oral argument:
*307 THE COURT: So [the SEB has] a meeting with the SSA and he pops this opinion out in a day, so there couldn’t have been a lot of discussion, unless there was something on the record that we don't know about.
Speaking of which, in the SSA’s opinion he says at the beginning: "In addition, I solicited and considered the views of key senior personnel at NASA and Center representatives during the executive session about the SEB’s presentation."
GOV’T COUNSEL: I'm not sure of the answer to that, your Honor.
TR at 76; see also 78-80 (emphasis added).
The answer appears to be in the record of the GAO proceedings.
HEARING OFFICER: Did you interact with the SEB during the acquisition process?
SSA: Yes, I did.
HEARING OFFICER: Can you describe this interaction?
SSA: Well, the SEB actually was located at Kennedy Space Center. We had our own building down there and I would talk to the SEB chair and several of the staff on a regular basis several times a week telephonically. And I made trips down there at least once or twice a month, certainly every month and a half over the period of a year and a half that this took place.
HEARING OFFICER: Were there any form of briefings by the SEB to you?
SSA: Yes.
HEARING OFFICER: Can you describe those?
SSA: Well, they’re basically status updates, starting off in the early days of procedural and how we were going to proceed, establishing procedures, guidelines, authorities and then, as it went on, just getting updates on issues that were developing and just various updates.
HEARING OFFICER: Were you also briefed by the SEB on the final results of the evaluation?
SSA: I was, the next day, the 20th.
HEARING OFFICER: Is it fair to say you had a good understanding of all of the evaluation findings?
SSA: Yes.
AR at 27451-52 (emphasis added).
Although the court is not aware of a FAR provision that prohibits the SSA from having discussions with the SEB during their evaluation, the problem that arises is how much influence did the SSA have in shaping the SEB's ratings and point scores during the critical period between the Initial and Final Findings. See supra at 43-44 (quoting TR at 62-64). In this case, the Administrative Record shows that the SSA rejected the SEB’s initial competitive range determination. See AR at 12553, 12897. The Administrative Record does not reflect the nature and extent of the communications between the SSA and SEB during the SEB Final Findings. The Administrative Record, however, reflects that the same day that the SEB Final Briefing occurred, the SSA’s Decision was rendered. See AR at 26421, 26643. The Administrative Record also reflects that the SSA noted in the SSA’s Final Source Selection Decision that he "solicited and considered the views of key senior personnel at NASA and center representatives during the executive session about the SEB’s presentation,” but did not mention his extensive communication with the SEB prior to that time. Compare AR at 26642-43 with AR at 27451-52.
Therefore, although WSI did not raise this issue, it appears that the SSA may have influenced the SEB to increase CIS’s scores and ratings during the Final Evaluation period, so that the SSA's "best value” decision already was reflected in the SEB’s Final Findings.
. In the GAO proceedings, the SSA also testified, in response to a question as to whether the SSA distinguished between the experience of the two offerors: “Well, I’m making an assumption and hopefully it’s a valid one that the SEB took into consideration. I didn’t go into that granularity.” AR at 27473.
. Bill McNally is the Assistant Administrator, Office of Procurement. See http:// www.nasa. gov/about/highlights/mcnally—bio.html. Mr. McNally was not an initial member of the Source Evaluation Board. See AR at 2603. Nor was he mentioned anywhere else in the Administrative Record. He was, however, in attendance at the May 20, 2008 SSA Final Decision Briefing. See AR at 26421. The court assumes he was present in an Ex-Officio capacity. See AR 2605.