In the United States Court of Federal Claims No. 25-515 (Filed Under Seal: June 27, 2025) Reissued: July 16, 2025
* * * * * * * * * * * * * * * * * * * * * * * ADVANCED TECHNOLOGY * SYSTEMS COMPANY, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant, * * and * * FORWARD SLOPE, INC., * * Defendant-Intervenor. * * * * * * * * * * * * * * * * * * * * * * * *
Philip E. Beshara, with whom were Carla Weiss, Robert Nichols, Logan Kemp, and Annie Hudgins, Nichols Law, all of Washington, D.C., for Plaintiff.
Matthew P. Roche, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, with whom were Albert S. Iarossi, Assistant Director, Patricia M. McCarthy, Director, Yaakov M. Roth, Acting Assistant Attorney General, all of Washington, D.C., for Defendant, and Jessica K. Eddy, Associate Counsel, Department of the Navy, of Washington, D.C., of counsel.
Tara D. Hopkins, with whom were Jonathan Shaffer, Zachary Prince, and Jesse Cardinal, Haynes and Boone LLP, all of Tysons Corner, VA, for Defendant-Intervenor.
OPINION AND ORDER
SOMERS, Judge.
In the boardgame Battleship, players take turns guessing the location of their opponent’s ships in an effort to destroy their opponent’s fleet and win the game. To be successful in the game, players must carefully pick the shots fired at their opponent’s fleet on offense while simultaneously attempting to not reveal how closely their opponent’s shots miss the player’s ships on defense. In this procurement, the Department of the Navy (“the Navy”) has seemingly mastered the defensive skills, but not the offensive skills, of a Battleship player. In evaluating proposals for the maritime surveillance contract at issue here, the Navy utilized vague and conflicting past performance criteria to make an award decision while simultaneously failing to provide any explanation for the decision it made. In other words, in contrast to how a skilled Battleship player carefully picks his shots on offense, the Navy carelessly chose ambiguous words and utilized an unclear past performance rating system in this procurement. Conversely, just as a successful Battleship player conceals how close his opponent is to hitting his ships on defense, the Navy did not reveal any clear rationale for its award decision. While players should abide by the adage “loose lips sink ships” when playing Battleship, an agency should not utilize a lips-sealed approach in documenting its evaluation of the award of a contract, especially when the evaluation criteria on which the agency relies for award are all but clearly stated.
BACKGROUND
A. Factual Background
On February 2, 2023, the Navy issued Solicitation number N00024-23-R-5310, providing the parameters for an “unrestricted full and open competition for a Cost-Plus-Fixed-Fee, Firm- Fixed-Price, and Cost (no fee) procurement to provide” the Arab Republic of Egypt with a Nationwide Maritime Surveillance System (“NMSS”) via a foreign military sale. Tab 172 at Administrative Record (“AR”) 6335; Tab 33 at AR 1111. The NMSS provides “security information required by the [Egyptian Navy] to make decisions on the defense and security of its maritime boundary, natural resources, and ports.” Tab 172 at AR 6335. The Navy sought a contractor to provide “surface search near shore, underwater detection, tracking, and monitoring capacity along the Mediterranean Sea and Red Sea coastal borders of Egypt.” Id.
The solicitation in this procurement stated that “[t]he Government plans to award a single contract resulting from this solicitation to the responsible Offeror whose proposal offers the best value to the Government.” Tab 33 at AR 1220. The solicitation established five factors, listed in relative order of importance, under which each offeror would be evaluated: Factor 1: Technical Approach; Factor 2: Management Approach; Factor 3: Past Performance; Factor 4: Small Business Utilization; and Factor 5: Total Evaluated Cost/Price. Id. at AR 1221. According to the solicitation, Factors 1–4, referred to as the “non-cost” factors, “are significantly more important than Factor 5.” Id. However, to the extent that “competing proposals approach[ed] parity in the non-cost/price factors, Factor 5 [was to] increase in importance.” Id. The non-cost factors were to be assigned adjectival ratings based on a rating system designated for each factor. Id. The Court will provide brief background on each evaluation factor relevant to this protest before discussing the Navy’s award decision.
1. Factor 1: Technical Approach and Factor 2: Management Approach
Under Factor 1: Technical Approach, the Navy would evaluate each offeror’s proposal to “assess the extent to which the Offeror’s proposal demonstrates an adequate approach, understanding, capabilities and experience to perform the entirety of the work under this
2 solicitation.” Id. at AR 1221. Furthermore, the Navy would “assess the degree to which the Offeror’s proposal demonstrates a thorough understanding of the solicitation requirements for, and technologies involved with, the efforts under this solicitation.” Id.
Under Factor 2: Management Approach, the Navy would evaluate “the degree to which the approach . . . details the Offeror’s plan in meeting [outside the continental United States (“OCONUS”)] activities and subcontractor requirements and the potential cost and performance risks as well as plans for mitigating those risks.” Id. Additionally, the Navy would evaluate “the extent to which the approach cites relevant experience executing in a security cooperation environment.” Id.
The solicitation provided the following adjectival rating system for Factor 1 and Factor 2:
Adjectival Ratings for Factors 1 and 2 Adjectival Rating Description Outstanding Proposal indicates an exceptional approach and understanding of the requirements and contains multiple strengths, and risk of unsuccessful performance is low. Good Proposal indicates a thorough approach and understanding of the requirements and contains at least one strength, and risk of unsuccessful performance is low to moderate. Acceptable Proposal meets requirements and indicates an adequate approach and understanding of the requirements, and risk of unsuccessful performance is no worse than moderate. Marginal Proposal has not demonstrated an adequate approach and understanding of the requirements, and/or risk of unsuccessful performance is high. Unacceptable Proposal does not meet requirements of the solicitation, and thus, contains one or more deficiencies, and/or risk of unsuccessful performance is unacceptable. Proposal is unawardable.
Id. at AR 1225 (color rating column omitted). As stated above, Factor 1 is the most important and Factor 2 is the second-most important evaluation factor for this solicitation. See id. at AR 1221.
2. Factor 3: Past Performance
The solicitation states that there are two aspects to the past performance evaluation under Factor 3. The first is “Relevance,” in which the Navy would “evaluate the Offeror’s past performance to determine how relevant the Offeror’s recent efforts are to the requirements included in this solicitation.” Id. With regard to relevancy, the solicitation defined “recency” as “Contracts/Orders performed within the past five (5) years from the date of proposal submission,” and “relevant” past performance as “experience similar in technical nature, scope, dollar value, and complexity to this effort.” Id.
To be evaluated under this evaluation factor, each offeror would have to submit past performance records detailing its performance in past contracts. The solicitation provided that the Navy would assess offerors’ past performance records for relevancy under Factor 3 pursuant to the following rating system: 3 Relevancy of Past Performance Ratings Under Factor 3 Rating Definition Very Relevant Present/past performance effort involved essentially the same scope and magnitude of effort and complexities this solicitation requires. Relevant Present/past performance effort involved similar scope and magnitude of effort and complexities this solicitation requires. Somewhat Relevant Present/past performance effort involved some of the scope and magnitude of effort and complexities this solicitation requires. Not Relevant Present/past performance effort involved little or none of the scope and magnitude of effort and complexities this solicitation requires.
Id. at AR 1226. For purposes of this solicitation, the Navy defined “magnitude” as “dollar value.” Id. at AR 1222. The solicitation did not expressly define the terms “scope” or “complexities this solicitation requires.”
In addition, “[w]ith respect to relevancy,” the solicitation states that “past performance of greater relevancy will typically be a stronger predictor of future success and have more influence on the past performance confidence assessment than past performance of lesser relevance” and that “[d]irect experience with DoD commands accomplishing tasking relevant to the SOW requirements will be considered more favorably.” Id.
The second aspect of the past performance evaluation was “Confidence,” through which the Navy would “determine how well the Offeror performed on [its submitted] relevant, recent contracts.” Id. The solicitation states that “[b]ased on an evaluation of the totality of each Offeror’s past performance record and considering recency, relevancy, and quality assessments, the [Navy] will assign one (1) overall performance confidence assessment rating” based on the ratings offerors receive in the “Relevancy” evaluation. Id. The solicitation provided that the Navy would assess offerors’ submissions under Factor 3 for performance confidence pursuant to the following rating system:
Performance Confidence Assessment Ratings Under Factor 3 Rating Description Substantial Confidence Based on the Offeror’s recent/relevant performance record, the Government has a high expectation that the Offeror will successfully perform the required effort. Satisfactory Confidence Based on the Offeror’s recent/relevant performance record, the Government has a reasonable expectation that the Offeror will successfully perform the required effort. Limited Confidence Based on the Offeror’s recent/relevant performance record, the Government has a low expectation that the Offeror will successfully perform the required effort. No Confidence Based on the Offeror’s recent/relevant performance record, the Government has no expectation that the Offeror will be able to successfully perform the required effort. Neutral Confidence No recent/relevant performance record is available, or the Offeror’s performance record is so sparse that no meaningful confidence assessment
4 when compared to FSI’s proposal.” Id. After justifying why the Navy would not pay the price premium associated with other offerors’ proposals, the SSA stated that “FSI’s proposal . . . offers the best value.” Id. The Navy accordingly awarded FSI the contract and notified ATSC that it was not selected for contract award on February 21, 2025. See Tab 110 at AR 1391–93.
B. Procedural History
On March 21, 2025, ATSC filed its complaint. ECF No. 1. A few days later, on March 26, 2025, FSI moved to intervene in this action, ECF No. 9, and the Court granted FSI’s motion that day, ECF No. 11. On April 18, 2025, ATSC filed its motion for judgment on the administrative record (“MJAR”). ECF No. 26. On April 29, 2025, FSI and the government filed their responses to ATSC’s motion and their own cross-motions for judgment on the administrative record. ECF No. 31; ECF No. 32. On May 6, 2025, ATSC filed a reply in support of its motion and response to the other parties’ cross-motions, ECF No. 35, and FSI and the government filed their replies on May 13, 2025. ECF No. 36; ECF No. 37. The Court held oral argument on the parties’ motions on May 21, 2025. This case is now ripe for adjudication.
DISCUSSION
A. Standard of Review
The Tucker Act, as amended by the Administrative Dispute Resolution Act, provides the Court of Federal Claims with “jurisdiction to render judgment on an action by an interested party objecting to . . . the award of a contract or any alleged violation of statute or regulation in connection with a procurement . . . .” 28 U.S.C. § 1491(b)(1). In such actions, the Court is to “review the agency’s decision pursuant to the standards set forth in section 706 of title 5.” Id. § 1491(b)(4). To succeed in a bid protest, a protestor must make two showings. Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005). First, a protestor must show error, meaning that the agency violated the standards set forth in section 706 of the Administrative Procedures Act (“APA”). Id.; see also 5 U.S.C. § 706(2)(A) (requiring the reviewing court to “hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”). Second, a protestor must demonstrate that such error was prejudicial. Bannum, Inc., 404 F.3d at 1351.
To demonstrate that an agency’s actions were in error, a protestor must establish that the agency “entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or [the decision] is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (alteration in original) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Put differently, a procurement decision may be set aside if the protestor proves that “(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009) (quoting PGBA, LLC v. United States, 389 F.3d 1219, 1225 n.4 (Fed. Cir. 2004)). Additionally, to demonstrate entitlement to relief, a protestor must establish not only that the agency violated the APA standard, but also that such
6 violation prejudiced the protestor. Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996) (“[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.”); see also Sys. Stud. & Simulation, Inc. v. United States, 22 F.4th 994, 996–97 (Fed. Cir. 2021) (“In particular, the challenger of agency action generally bears the burden of showing that an error was harmful—that is, that it was prejudicial.”).
Bid protests are generally decided on cross-motions for judgment on the administrative record, pursuant to Rule 52.1 of the Rules of the U.S. Court of Federal Claims (“RCFC”). Under RCFC 52.1, the Court must “make factual findings from the record evidence as if it were conducting a trial on the record.” Bannum, Inc., 404 F.3d at 1354. Unlike a motion for summary judgment, a genuine dispute of material fact does not preclude a judgment on the administrative record. See id. at 1355–56. Instead, in reviewing cross-motions for judgment on the administrative record, “this Court asks whether, given all the disputed and undisputed facts, a party has met its burden of proof based on the evidence contained in the administrative record.” Golden IT, LLC v. United States, 157 Fed. Cl. 680, 687 (2022) (citing Bannum Inc., 404 F.3d at 1356–57).
B. Analysis
ATSC advances seven reasons why the Court should grant its MJAR. ECF No. 26. First, ATSC alleges that the Navy conducted a flawed best value tradeoff in contravention of the solicitation and the FAR. Id. at 11–16. Second, ATSC argues that the Navy arbitrarily and disparately deemed two of ATSC’s past performance references “Not Relevant.” Id. at 26–30. Third, ATSC contends that the Navy improperly disregarded the “Very Relevant” past performance reference of ATSC’s proposed subcontractor. Id. at 30–31. Fourth, ATSC maintains that the Navy unreasonably based ATSC’s “Satisfactory” confidence rating on two “cherry- picked” comments from a Contractor Performance Assessment Report (“CPAR”). Id. at 31–32. Fifth, ATSC claims that the Navy entirely disregarded the Factor 1 evaluation requirement of “experience to perform the entirety of the work” in its award of the contract. Id. at 21–23. Sixth, ATSC insists that the Navy irrationally evaluated and underrated ATSC’s proposal under Factor 2 while simultaneously inflating FSI’s proposal under that factor. Id. at 23–26. Seventh, ATSC argues that the Navy irrationally evaluated FSI as “Outstanding” under Factor 1. Id. at 17–21. Finally, based on the preceding seven errors ATSC alleges, ATSC argues that injunctive relief is warranted in this case. Id. at 33–35. The Court addresses these arguments in turn.
1. The Navy Erred by Conducting a Flawed Best Value Tradeoff in Contravention of the Solicitation and the FAR.
Before discussing the parties’ arguments, the Court recounts the SSA’s rationale for her award decision. The SSA stated that the Source Selection Advisory Council (“SSAC”) determined that Factor 3 “was not a discriminator when determining best value as ATSC and both had Satisfactory Confidence and FSI, , and had Neutral Confidence. Neutral Confidence cannot be evaluated favorably or unfavorably.” Tab 173 at AR 6359–60. The SSA further stated:
7 I received and considered reference (b) [the SSAC report], which documents the SSAC’s recommendation to select FSI for award of the EN NMSS requirements. I independently reviewed each offeror’s proposal as well as the SSEB, reference c [SSEB Report], and CPAT, reference d, and SSAC, reference b, reports. In my independent judgment, I concur with the SSAC that the FSI proposal represents the best value to the Government, in accordance with the criteria set forth in reference (a) [the Solicitation]. The SSAC’s recommendation is based on its consideration of references (c) and (d) [CPAT Report], as well as its independent review of each Offeror’s proposal. I adopt in whole the analysis and conclusions in references (b), (c), and (d).
Id. at AR 6358 (emphasis added). In other words, the SSA fully adopted the reasoning and conclusions of the SSAC, SSEB, and CPAT reports in her decision to award FSI the contract. Importantly, this includes the SSAC’s reasoning that “[s]ince offerors with neutral ratings cannot be rated favorably or unfavorably on the factor of past performance, FSI, past performance does not impact the trade-off decision.” 1 Tab 172 at AR 6354.
With this background established, ATSC argues that the Navy’s award of the contract to FSI was fundamentally flawed because the Navy “adopted a legally erroneous premise—namely, that because FSI lacked relevant past performance and received a ‘Neutral Confidence’ rating, Factor [3]: Past Performance could not serve as a discriminator in the [best value] tradeoff” and that such premise violates “FAR 15.305, the Solicitation’s stated evaluation criteria, and black-letter law.” ECF No. 26 at 11 (emphasis in original). 2 Put succinctly, ATSC essentially argues that the SSA’s determination that past performance would not be a discriminator in the best value determination is contrary to law.
The government’s flagship argument in response is that the Navy did not fail to consider ATSC’s past performance rating but instead determined that, for this procurement, a Satisfactory Confidence and a Neutral Confidence rating would be considered as equal. See ECF No. 32 at 16 (“[T]he SSA simply concluded that a Neutral rating would not be considered a more favorable or less favorable rating than a Satisfactory rating during the best value tradeoff determination,
1 While the quoted language reflects the SSAC report’s intended meaning, the SSAC report originally included a typo, leaving off the word “not” in the quoted language. See Tab 172 at AR 6354 (“Since offerors with neutral ratings cannot be rated favorably or unfavorably on the factor of past performance, FSI, past performance does impact the trade-off decision.”). However, as the Navy concedes and is obvious given the context, “this is a typo in the SSAC and should have said ‘does not’ impact the trade-off decision. This is validated in the SSAC on page 22 ‘For Factor 3, the SSAC determined that the evaluation factor is not a discriminator in determining best value . . .’ and in the Source Selection Decision Document, which also makes it clear that Factor 3 was not a discriminator.” Tab 192 at AR 6836 (alteration in original) (quoting Tab 172 at AR 6354). 2 ATSC wrote in its brief that the Navy’s decision was irrational in its “Factor 2: Past Performance” evaluation. ECF No. 26 at 11. However, given the context of ATSC’s argument and the terms of the solicitation, the Court construes such language as a typo referring to Factor 3: Past Performance. 8 thus ensuring that an offeror with a Neutral past performance rating would not be ‘evaluated favorably or unfavorably on the factor of past performance.’” (quoting Tab 33 at AR 1226)).
However, the government’s response is not supported by the record and thus fails for at least three reasons. First, the SSA never stated that a Neutral rating would not be considered more or less favorably than a Satisfactory rating; all she said was that “the evaluation factor was not a discriminator when determining best value.” Tab 173 at AR 6359. Because the SSA never articulated the rationale that the government proclaims she used, the government’s argument appears to constitute the post hoc rationale of government attorneys and not the contemporaneous decision-making criteria of Navy procurement officials. It is a “foundational principle of administrative law” that judicial review of agency action is limited to “the grounds that the agency invoked when it took the action.” Michigan v. Env’t Prot. Agency, 576 U.S. 743, 758 (2015) (emphasis added). Stated differently, when reviewing an agency decision, the Court must look to the decision-making process contemporaneous to the agency’s decision, not post hoc justifications crafted for subsequent litigation.
In an attempt to avoid the post hoc label, the government points to debriefing documents that state that “[w]hile the Government may determine that a Satisfactory Confidence past performance rating is worth more than a Neutral Confidence rating, the SSAC and SSA did not for this procurement based on their review of the past performance records.” Tab 192 at AR 6836. But the government cannot rely on the justification provided in a post-award debrief to attempt to supply an unprovided contemporaneous rationale for a decision made at the time of award. Fort Carson Support Servs. v. United States, 71 Fed. Cl. 571, 591–92 (2006) (“But while such debriefings might, on occasion, yield useful party admissions, any new explanations of the evaluation process made post-award are the sort of ‘post hoc rationalizations’ that courts reject when offered by the government in bid protest cases.” (quoting Orion Int’l Techs. v. United States, 60 Fed. Cl. 338, 343 (2004)). By definition, a post-award debrief takes place after the award of a contract and is addressed to disappointed bidders. In other words, at the time of debriefing, the overall tone of the agency-bidder relationship begins to shift from a cooperative competition to a potentially adversarial dispute, as disappointed bidders seek explanation from the procuring agency as to why they were not selected for award. In many instances (including the instant protest), a debrief can be viewed as a precursor to an impending protest; thus, an agency may be using the debrief as a final attempt to offer an explanation to ward off a potential protest ground that is raised by a disappointed offeror’s debrief questions. Because the government only asserts post hoc rationale for a critical question regarding the Navy’s best value determination, the government’s argument does not reflect the Navy’s contemporaneous rationale for its award decision and accordingly fails. 3
Second, even if the government’s debrief-based argument did not constitute post hoc rationalization, the Navy’s justification for its best value determination is wholly conclusory. A
3 Even if a debrief could reflect the contemporaneous decision-making of an agency at the time of procurement, the debrief here expressly contradicts the government’s argument that the Navy essentially treated Satisfactory and Neutral Confidence ratings equally. See Tab 192 at AR 6836 (“A ‘Neutral Confidence’ rating is not treated as equal to all other past performance ratings.”). 9 conclusory rationale is not sufficient for purposes of APA review, as a Court must “know what [an agency’s] decision means before the duty becomes [the Court’s] to say whether it is right or wrong.” United States v. Chi., Milwaukee, St. Paul & Pac. R.R. Co., 294 U.S. 499, 511 (1935). Here, the debrief, on which the government solely relies, states that Neutral Confidence ratings would be considered equal to Satisfactory Confidence ratings for purposes of this procurement. See Tab 192 at AR 6836. But the debrief fails to provide any explanation for that decision, merely remarking that while the Navy could have determined that “a Satisfactory Confidence past performance rating is worth more than a Neutral Confidence rating,” it did not “for this procurement based on [its] review of the past performance records.” Id. Lacking from these sentences is any explanation of what, in the Navy’s review of the past performance records, led to the decision to consider Neutral and Satisfactory Confidence ratings equally. Although the Navy did not need to exhaustively explain why Neutral and Satisfactory ratings would be considered equally, some explanation for that choice was required. But because the Navy provided no explanation at all for its decision not to treat a Satisfactory Confidence past performance rating more favorably than a Neutral Confidence rating, the Court has no way to “know what [the Navy’s] decision means” and, therefore, cannot say whether that decision “is right or wrong” under the APA. Pac. R.R. Co., 294 U.S. at 511. Such explanation-barren agency decisions cannot be sustained.
Third, even if the explanation provided in the debrief and relied on by the government here was neither post hoc rationalization nor impermissibly conclusory, the explanation directly conflicts with the pre-award and contemporaneous-with-award documents in the record. For example, the SSA, who adopted “in whole the analysis and conclusions” of the SSAC, stated that “the SSAC determined that the [past performance] evaluation factor was not a discriminator when determining best value as ATSC and both had Satisfactory Confidence and FSI, , and had Neutral Confidence.” Tab 173 at AR 6358, 6359 (emphasis added). Nowhere in her report did the SSA say she was treating Satisfactory and Neutral Confidence ratings equally. She only stated that the past performance evaluation factor was “not a discriminator when determining best value.” Id. at AR 6359. The only semblance of an explanation for the SSA’s reasoning comes in the next sentence of the SSA report: “Neutral Confidence cannot be evaluated favorably or unfavorably.” Id. at AR 6359–60. The Court can either read this sentence as floating alone from the sentence that precedes it (inserted into the paragraph for no apparent reason) or, more rationally, can read the sentence to be an apparently disjointed explanation of the rationale for the SSA’s decision. The Court chooses the latter course and joins the sentences by inserting the word “because” to read: “[T]he evaluation factor was not a discriminator when determining best value as ATSC and both had Satisfactory Confidence and FSI, , and had Neutral Confidence” because “Neutral Confidence cannot be evaluated favorably or unfavorably.” Id. at AR 635960. While this is a more natural reading of the two sentences, to the extent that this is the reason for the SSA’s decision, such a decision cannot stand because the reasoning is invalid.
As ATSC argues, even though the solicitation states that Neutral Confidence ratings “may not be evaluated favorably or unfavorably,” Tab 33 at AR 1226, “this instruction applies to the evaluation of the offeror that receives the ‘Neutral’ rating—not to the relative comparison among all offerors’ past performance records in the best value determination,” ECF No. 35 at 6. The
10 government expressly agrees with this contention. ECF No. 37 at 5–6. 4 Yet, both the document on which the SSA relied to reach her conclusions and the SSA report itself seem to read the solicitation’s instructions as applicable to the relative comparison among all offerors’ past performance records, and not to the evaluation of the offeror that receives the Neutral rating. Tab 172 at AR 6354 (“Since offerors with neutral ratings cannot be rated favorably or unfavorably on the factor of past performance, FSI, past performance does [not] impact the trade-off decision. ATSC and were determined to have the same confidence rating.” (emphasis added)); Tab 173 at AR 6359–60 (“[T]he evaluation factor was not a discriminator when determining best value as ATSC and both had Satisfactory Confidence and FSI, , and had Neutral Confidence. Neutral Confidence cannot be evaluated favorably or unfavorably.”). This explanation confirms ATSC’s theory.
Moreover, it is well established that agencies may treat Satisfactory Confidence ratings more favorably than Neutral Confidence ratings. Bahr. Mar. & Mercantile Int’l BSC (C) v. United States, 118 Fed. Cl. 462, 480 n.13 (2014) (“While an agency may not assign an unfavorable rating to an offeror based on its lack of a past performance history, it is entitled to treat a high past performance rating (like BMMI’s) as worth more than a Neutral past performance rating (like OFI’s).”); Def. Base Servs., Inc. v. United States, 147 Fed. Cl. 424, 440 (2020) (“DBSI concedes that the Air Force was permitted, under the terms of the Solicitation and the FAR, to treat ASRCC’s Satisfactory Confidence rating more positively than a Neutral Confidence rating.”); see also Precision Images, LLC v. United States, 79 Fed. Cl. 598, 625 (2007) (“Here, a rating of ‘Satisfactory Confidence’ is listed above—and is therefore ranked higher than—ratings of ‘Unknown Confidence,’ ‘Little Confidence,’ and ‘No Confidence’ in the [solicitation].”). Thus, the Navy’s decision to treat Satisfactory and Neutral Confidence ratings equally—because it seemingly believed it was required to do so—was incorrect according to the relevant caselaw.
The parties expended much effort in their briefs arguing why certain ratings were justified or not justified or why a certain offeror achieved a higher rating than another. See, e.g., ECF No. 26 at 17–32; ECF No. 31 at 27–31; ECF No. 32 at 26–40. But these arguments are akin to ships passing in the night. Regardless of the justification for the assigned ratings, the Navy never explained that it would consider Satisfactory and Neutral Confidence ratings equally or why it did so. In mathematical terms, the Navy effectively explained both sides of the equation (the definitions of “Satisfactory” and “Neutral” confidence) but did not explain the symbol in the middle of the equation itself. Why was Satisfactory Confidence “equal to” Neutral Confidence? Or, conversely, why was Satisfactory Confidence not “greater than” Neutral Confidence”? Without an answer to these questions in the award decision and the documents relied upon to make that decision, the Navy fails to provide a rational basis for its award decision.
4 “ATSC contends that the solicitation’s instruction that Neutral Confidence ratings ‘shall not be evaluated favorably or unfavorably,’ Tab No. 33 at AR 1226, ‘applies to the evaluation of the offeror that receives the ‘Neutral’ rating—not to the relative comparison among all offerors’ past performance records in the best value determination.’ We agree.” ECF No. 37 at 5–6 (citation omitted) (emphasis added). 11 The solicitation states that the Navy would evaluate offerors’ proposals under Factor 3 by rating offerors’ past performance references in accordance with the “Relevancy” and “Performance Confidence” rating charts included above. See Tab 33 at AR 1226. While at first glance the criteria within the “Relevancy” chart may seem clear, closer inspection reveals significant overlap between ratings. For example, an offeror’s past performance reference will be deemed “Somewhat Relevant” if the “[p]resent/past performance effort involved some of the scope and magnitude of effort and complexities this solicitation requires.” Id. However, an offeror’s past performance reference will earn a “Not Relevant” rating if the “[p]resent/past performance effort involved little or none of the scope and magnitude of effort and complexities this solicitation requires.” Id. In other words, what separates a “Somewhat Relevant” rating from an a “Not Relevant” rating is the fact that the offeror’s performance effort involved “some” of the scope, magnitude of effort, and complexities the solicitation requires, rather than “little to none” of those aspects. But what is the difference between some—“a certain amount; a little” 5— and little—“small in amount, number, or degree”6—with regard to the scope, magnitude of effort, and complexities the solicitation requires? It is impossible for the Court to determine what the quantitative difference is between such vague and overlapping terms, given the limited explanation the Navy provided when assigning relevancy ratings in this procurement (a topic that will be discussed below).
The Navy’s explanations for the past performance ratings assessed to each offeror further illustrate the lack of consistency in the past performance rating criteria listed in the “Relevancy” chart. The Navy distinguished between ratings by using words such as “little” or “difference” or “similarity” with no discernable rhyme or reason of the consequences of each characterization. For example, the Navy deemed ATSC’s $ million contract “Not Relevant” because “[w]hile this past performance has some of the scope, . . . the size and complexity involved in this past performance record is substantially less than what is required by this solicitation.” Tab 171 at AR 6293. In contrast, the Navy deemed $ million contract “Somewhat Relevant” because “[w]hile it performed some of the scope required by this solicitation, the complexity and magnitude is less than what is required under this solicitation by this subcontractor.” Id. at AR 6329–30. Vague words such as “substantially less” and “less” do not shed light on the difference between the “little to none” and “some” language in the “Relevancy” past performance rating chart. Even if the size and complexity of ATSC’s contract were “substantially less” than what the solicitation required, ATSC’s contract could, by definition, have “some” of the size and complexities the solicitation requires, thereby meriting a “Somewhat Relevant” instead of a “Not Relevant” rating. As this example illustrates, the vague words used in the Navy’s rating system are consistently inconsistent.
Continuing this streak of unclear explanation, the Navy deemed $ million contract “Somewhat Relevant” because “[w]hile the past performance effort did have similarity of scope, the SSEB determined the magnitude, and complexity are less when compared to the requirements of the solicitation. The scale of this solicitation is significantly larger than what was performed under this past performance reference.” Id. at AR 6328. Yet, the Navy found $ million contract
5 Some, OXFORD ENGLISH DICTIONARY (2d ed. 1989). 6 Little, WEBSTER’S NEW WORLD COLLEGE DICTIONARY (4th ed. 2009). 14 same contract, in the same manner. Such disparate treatment constitutes an irrational agency procurement decision.
ATSC argues that this error was prejudicial because “[t]he result of this flawed assessment was that the Agency erroneously concluded there was not a high expectation that ATSC will successfully perform the required effort, leading to a ‘Satisfactory’ confidence rating rather than the warranted ‘Substantial’ confidence rating.” ECF No. 26 at 31. The government retorts that, in any event, ATSC cannot establish prejudice here, “as ATSC received the same Satisfactory Confidence rating as , and the SSA determined that past performance would not be a discriminatory factor in determining best value.” ECF No. 32 at 39. But, as established above, the SSA’s determination that past performance would not be a discriminator in the best value determination was itself an error. The government cannot argue against prejudicial error by relying on a different prejudicial error as justification. Accordingly, ATSC meets its burden to demonstrate prejudice because, had the Navy properly regarded the two “Very Relevant” past performance entries, ATSC could have received a higher Factor 3 rating and, with such rating, ATSC would then clearly be superior to all other offerors in both Factor 3 and Factor 2. See Tab 173 at AR 6360 (“ATSC offers an overall superior approach in the non-cost/price factors due its superior approach in Factor 2.”). Having a clear advantage in two of the non–cost evaluation factors, which were significantly more important than price, would certainly give ATSC an edge in competing for this contract. Such possibility squarely demonstrates a substantial chance of receiving the contract but for the Navy’s error.
4. ATSC’s Remaining Arguments Fail.
In addition to the above arguments, ATSC asserts four more reasons why the Navy’s award to FSI cannot stand. Specifically, ATSC alleges that the Navy unreasonably based ATSC’s “Satisfactory” confidence rating on two “cherry-picked” comments from a CPAR; that the Navy entirely disregarded the Factor 1 evaluation requirement of “experience to perform the entirety of the work” in its award of the contract; that the Navy irrationally evaluated and underrated ATSC’s proposal under Factor 2 while simultaneously inflating FSI’s proposal under that factor; and that the Navy irrationally evaluated FSI as “Outstanding” under Factor 1. ATSC has not met its burden of proof regarding any of these arguments. Nonetheless, the Court briefly discusses these arguments.
a. The Navy Rationally Considered CPAR Comments in its Factor 3 Evaluation.
ATSC argues that the Navy unreasonably based ATSC’s “Satisfactory Confidence” rating on “two cherry-picked comments” from a CPAR that are “inconsistent with the contents of the CPAR” and “de minimis in comparison to the successful performance reflected for ATSC.” ECF No. 26 at 31. In response, the government states that “there is no evidence that ATSC’s Satisfactory Confidence rating was the result of only these two CPARs comments” and that “past performance confidence ratings were based on an ‘evaluation of the totality of each Offeror’s past performance record and considering recency, relevancy, and quality assessments.’” ECF No. 32 at 39, 38 (quoting Tab 33 at AR 1222).
17 technical approach . . . to assess the extent to which the Offeror’s proposal demonstrates an adequate approach, understanding, capabilities and experience to perform the entirety of the work under this solicitation.” Tab 33 at AR 1221. In contrast, under Factor 3, the Navy would “evaluate each Offeror’s demonstrated recent and relevant record of performance in supplying products and services that meet requirements of this contract.” Id. Furthermore, whereas the Navy’s Factor 1 evaluation would utilize an adjectival rating system reflecting an offeror’s “understanding of the requirements,” strengths, and “risk of unsuccessful performance,” id. at AR 1225, the Navy’s Factor 3 evaluation involved two separate scoring systems comprised of a relevancy of past performance rating and a performance confidence assessment, id. at AR 1226. The relevancy of past performance rating, as discussed above, would evaluate the offerors’ past performance efforts against the scope, magnitude of effort, and complexities this solicitation required. Id. The performance confidence assessment would evaluate the extent to which the Navy expected that offerors would successfully perform the effort required by the solicitation. Id.
In other words, Factors 1 and 3 seek related information for different purposes. While Factor 1 utilizes an offeror’s experience to assess whether an offeror can complete the tasks requested by the solicitation, Factor 3 utilizes an offeror’s past performance to “determine how relevant the Offeror’s recent efforts are to the requirements included in this solicitation” and “how well the Offeror performed on those relevant, recent contracts.” Id. at AR 1221, 1222.
Here, the Navy found FSI’s experience sufficient for an “Outstanding” rating under Factor 1. ATSC contends that this conclusion is irrational because the Navy acknowledged that FSI lacked “any relevant past performance experience” under Factor 3. ECF No. 26 at 21–22. ATSC’s argument is that if FSI’s past performance is insufficient for purpose A, it must be insufficient for purpose C as well. But if past performance is used for a different reason for purpose A than for purpose C, ATSC’s logic does not follow. As explained above, the solicitation uses past performance for Factor 1 (purpose A) for a different reason than for Factor 3 (purpose C). For this reason, ATSC’s erroneous equating of the different reasons for evaluating past performance under Factor 1 and Factor 3 is unpersuasive and its argument fails.
Even if the past performance evaluation for Factors 1 and 3 overlap as ATSC contends, the government argues that the SSEB determined that FSI’s past performance capability “has merit” and is thus sufficient for an “Outstanding” rating under Factor 1. ECF No. 32 at 24; see also id. (citing Tab 171 at AR 6298). As the administrative record demonstrates, the SSEB justified FSI’s “Outstanding” rating by citing that FSI “completed FMS projects across countries, managing requirements, design, surveys, integration, installations, and upgrades SOVT at over surveillance and C4I sites around the world.” Tab 171 at AR 6298. Moreover, the Navy found that FSI’s “proposed partnership with and their experience to achieve ATO [Authorization to Operate] for FMS based programs has merit and is advantageous to the Government because it will reduce the time to integrate GCCS-M [Global Command Control Systems—Maritime].” Id. at AR 6300. The SSEB further explained that “[FSI’s] experience will reduce the lead time and administrative costs under the FMS case . . . The use of an experienced team that understands the ATO and cybersecurity requirements associated with integrating GCCS-M into NMSS will ensure seamless integration of GCCS-M into the NMSS.” ECF No. 32 at 24 (emphasis in original) (quoting Tab 171 at AR
20 6300). ATSC does not respond to this argument in its briefing and thereby waived any counterargument on this point. See Sarro & Assocs., Inc. v. United States, 152 Fed. Cl. 44, 58– 59 (2021). Therefore, even if the evaluation of past performance overlaps between Factors 1 and 3, ATSC’s argument still fails because the Navy expressly found FSI’s past performance sufficient for an “Outstanding” rating, and the administrative record supports such a finding, for purposes of Factor 1.
c. The Navy Rationally Evaluated and Rated ATSC’s Proposal Under Factor 2.
ATSC contends that the Navy “irrationally disregarded the experience component when evaluating offerors’ proposals under Factor 2: Management,” which was “contrary to the requirements of the Solicitation.” ECF No. 26 at 23. Specifically, ATSC takes issue with the fact that the SSEB report did not discuss ATSC’s and contract but “praised” FSI’s and contracts in its Factor 2 discussion. Id. at 24–25. In other words, ATSC appears to advance an unequal treatment theory regarding the Navy’s Factor 2 analysis.
The government, in response, points to the SSEB’s statement that “[e]lements of the proposal that the SSEB determined to meet the requirements of the solicitation are not identified in this report” and, therefore, “even if ATSC’s experience with security cooperation environments was not explicitly mentioned in the SSEB report, such an omission would not indicate that it was not considered, but rather that it met the requirements of the solicitation.” ECF No. 32 at 26–27 (alteration in original) (first quoting Tab 171 at AR 6270). The government adds that because “the administrative record demonstrates that the evaluators addressed both ATSC’s and FSI’s management proposals functionally the same way,” ATSC’s unequal treatment claim fails. See Id. at 27.
As explained above, to demonstrate unequal treatment, a protestor must show that the agency unreasonably evaluated aspects of its proposal that were “substantively indistinguishable or nearly identical [to] those contained in other proposals.” Off. Design Grp., 951 F.3d at 1372; see also Ascendant Servs., LLC, 160 Fed. Cl. at 289. In the context of challenging an agency’s past performance evaluation, mere disagreement with the agency’s relevancy ratings cannot be the basis of a successful post-award challenge. Onésimus Def. LLC v. United States, 173 Fed. Cl. 344, 354–56 (2024).
ATSC fails to demonstrate unequal treatment as there is essentially no difference in the Navy’s evaluation of ATSC’s and FSI’s proposals under Factor 2. For example, the Navy found two strengths for ATSC under Factor 2 because of its capability to station project managers in Egypt and ability to effectively communicate with subcontractors. Tab 171 at AR 6289. The Navy accordingly deemed ATSC’s proposal “Good” under Factor 2. Id. Similarly, the Navy found one strength for FSI under Factor 2 because FSI’s “past experience especially in and have provided lessons learned that will ensure cost efficiency, effective subcontractor oversight and risk mitigation when applied to this requirement.” Id. at AR 6304. The two offerors received the same ratings and the Navy’s rationale for assigning those ratings is nearly indistinguishable. Compare id. at AR 6289 (“The clear lines of responsibilities, leadership engagement, and proven approach to use existing programs, plan, policies, and procedures has merit and is advantageous to the Government because [ATSC’s] approach ensures
21 strength and strengths in ATSC’s Factor 1 proposal went unchanged. ATSC can hardly complain that it suffered prejudicial error from an agency action that benefitted its proposal as well.
5. Although ATSC Succeeds on the Merits, Injunctive Relief Is Not Appropriate Due to National Security Concerns.
ATSC moved the Court to permanently enjoin the award of the contract at issue to FSI. See ECF No. 26 at 33–35. While the Court finds that ATSC is successful on the merits, the government cites numerous reasons why an injunction would affect ongoing national security concerns. For this reason, the Court finds that injunctive relief is not warranted in this protest and instead will remand this matter to the agency to address the prejudicial errors it committed in its evaluation of past performance and its weighing of past performance in the best value determination. The Court will first analyze ATSC’s injunctive relief request before turning to its remand instructions.
a. Injunctive Relief Is Not Appropriate Here Because National Security Concerns Outweigh ATSC’s Alleged Harms.
To determine whether a permanent injunction should issue, the Court employs a four-prong test: “(1) whether, as it must, 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.” PGBA, LLC, 389 F.3d at 1228–29. “No one factor, taken individually, is necessarily dispositive. If a[n] . . . injunction is granted by the trial court, the weakness of the showing regarding one factor may be overborne by the strength of the others.” FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993). Moreover, in considering whether to grant an injunction, the Court must be mindful that “[a]n injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course.” Apple, Inc. v. Samsung Elec. Co., 735 F.3d 1352, 1359 (Fed. Cir. 2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010)). Accordingly, “[i]f a less drastic remedy . . . [is] sufficient to redress [a plaintiff's] injury, no recourse to the additional and extraordinary relief of an injunction [is] warranted.” Monsanto Co., 561 U.S. at 165–66.
Regarding prong 1 of the injunctive relief analysis, ATSC succeeds on the merits. As explained above, ATSC successfully established that the Navy conducted a flawed best value tradeoff, irrationally deemed two of ATSC’s past performance references “Not Relevant,” and improperly disregarded the “Very Relevant” past performance reference of ATSC’s proposed subcontractor. For this reason, ATSC satisfies the first prong of the injunctive relief analysis.
For prong 2, ATSC has established that it will suffer “irreparable harm” if the Court withholds injunctive relief. ATSC alleges that, without injunctive relief, it will “be deprived of the opportunity to compete fairly for the NMSS contract that it had a substantial chance of winning.” ECF No. 26 at 33. As ATSC correctly notes, “[t]he Court of Federal Claims has repeatedly held that a protestor suffers irreparable harm if it is deprived of the opportunity to compete fairly for a contract.” CW Gov’t Travel, Inc. v. United States, 110 Fed. Cl. 462, 494
24 In response, ATSC argues that the government only proffered “generalized claims about national security to oppose injunctive relief” and that such claims fail to show why an injunction would harm the government’s interests. See ECF No. 35 at 29–30. By offering such an argument, ATSC attempts to flip the burden of proof on the government to show why the Court should not grant injunctive relief. However, it is the protestor’s burden to establish that injunctive relief is appropriate, not the other way around. See, e.g., Kingfisher Sys., Inc. v. United States, 145 Fed. Cl. 22, 34 (2019) (“The protestor bears the burden of establishing the [injunctive relief] factors by a preponderance of the evidence.”); CGS-SPP Sec. Joint Venture v. United States, 158 Fed. Cl. 120, 133 (2022) (“To obtain permanent injunctive relief, the plaintiff bears the burden of establishing four factors . . . .”); Lab’y Corp. of Am. Holdings v. United States, 116 Fed. Cl. 643, 654 (2014) (“Plaintiff has the burden of establishing the four [permanent injunction] factors by preponderant evidence.”).
ATSC has not met its burden here. The Court would have expected ATSC to argue, for example, that because contract performance has not yet begun, an injunction would not delay this procurement. Instead, ATSC cites only the irreparable harm of its inability to compete fairly for the contract without substantively addressing the government’s national security concerns. 8 While ATSC’s harms are irreparable as a matter of law, the Court notes that ATSC’s proffered harm—deprivation of the opportunity to compete for a contract it had a substantial chance of winning—is a garden-variety harm that most successful bid protestors face. ATSC offers no unique harms it would face without an injunction, such as risking financial insolvency, which might make a more compelling argument in the face of the government’s serious national security concerns.
In sum, contrary to ATSC’s contention that the government only proffered “generalized claims about national security,” the government cites unique, specific national security concerns that could arise were the Court to enjoin performance of the contract at issue. In weighing the balance of the hardships, the allegations set forth in the government’s five-page partially classified declaration outweigh the six sentences in ATSC’s briefs devoted to discussing this prong of the injunctive relief analysis, especially when those six sentences do not substantively address the government’s concerns. Therefore, the balance of the hardships weighs in the government’s favor and ATSC has not satisfied the third prong of the injunctive relief analysis.
Turning to prong 4, ATSC’s garden variety invocation of the principle that “the public interest is ‘compromised whenever an agency abuses its discretion in evaluating a contractor’s bid,’” is not enough to overcome the government’s strong showing regarding national security. ECF No. 26 at 35 (quoting PGBA, LLC v. United States, 57 Fed. Cl. 655, 663 (2003), aff’d, 389 F.3d 1219 (Fed. Cir. 2004)). As discussed above, ATSC’s vague replies to the government’s specific national security concerns are unpersuasive. See Crowley Tech. Mgmt., Inc. v. United
8 Although ATSC attempted to address these national security concerns at oral argument, see ECF No. 41 at 80:14–81:2, such an attempt is too late, as ATSC should have confronted the government’s allegations in its briefing. By failing to do so, its responsive arguments are deemed waived. See Raytheon Co. v. United States, 96 Fed. Cl. 548, 555 n.2 (2011) (“The court need not consider new arguments raised for the first time at oral argument.”).
26 States, 123 Fed. Cl. 253, 267 (2015) (“[W]hen interests raise national security concerns they ‘place the weight of both the public interest and balance of the hardships firmly on [the government’s] side of the scale.’” (quoting Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 702–03 (2010))).
In sum, the Court finds that an injunction is not appropriate and therefore denies ATSC’s request for such relief.
b. The Court Remands the Navy’s Decision to Explain its Rationale and Ambiguous Past Performance Rating Criteria.
“If the record before the agency does not support the agency action[ ] [or] if the agency has not considered all relevant factors . . . the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” IAP Worldwide Servs., Inc. v. United States, 160 Fed. Cl. 57, 82 (2022) (alterations in original) (emphasis omitted) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). A remand “is most useful when an agency retains some discretion with regard to the action it took in violation of the APA.” Id. (quoting Ramirez v. U.S. Immigr. & Customs Enf’t, 568 F. Supp. 3d 10, 24 (D.D.C. 2021)); cf. Immigr. & Naturalization Serv. v. Orlando Ventura, 537 U.S. 12, 16 (2002) (“[A] court . . . should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.”). Moreover, remand is specifically provided for in this Court’s jurisdictional statute: “In any case within its jurisdiction, the court shall have the power to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper and just.” 28 U.S.C. § 1491(a)(2) (emphasis added). And, as explained directly above, ATSC has failed to establish that it is entitled to injunctive relief; however, “remand—even if interpreted to include declaratory relief or accompanied by some limited instructions and bounded with deadlines—does not transform the relief into an injunction.” IAP Worldwide Servs., 160 Fed. Cl. at 81.
Here, “the grounds that the agency invoked when it took” the actions at issue in this bid protest were inadequate; therefore, the Court may “remand for the agency to do one of two things.” See Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 20 (2020) (first quoting Michigan, 576 U.S. at 758). First, the agency can offer “a fuller explanation of the agency’s reasoning at the time of agency action.” Id. (emphasis omitted) (quoting Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 654 (1990)). When the agency’s initial explanation “‘indicate[s] the determinative reason for the final action taken,’ the agency may elaborate later on that reason (or reasons) but may not provide new ones.” Id. at 21 (alternation in original) (quoting Camp v. Pitts, 411 U.S. 138, 143 (1973) (per curiam)). Second, in the alternative, “the agency can ‘deal with the problem afresh’ by taking new agency action.” Id. (emphasis omitted) (quoting Chenery Corp., 332 U.S. at 201).
CONCLUSION
For the above reasons, pursuant to 28 U.S.C. § 1491(a)(2), (b)(2), and RCFC 52.2, the Court hereby STAYS and REMANDS this case to the Navy for up to forty-five days from the date of this opinion to address the issues identified above regarding the best value determination
27 and the evaluation of past performance (as it relates to the best value determination and with regard to the “Relevancy” rating issues discussed above and to the problems identified with the ATSC’s past performance references). Specifically, the Navy SHALL, consistent with this opinion, either provide (1) “a fuller explanation of the agency’s reasoning at the time of the agency action,” 9 or (2) render a new agency decision regarding: 1. The best value tradeoff between Neutral past performance ratings and other past performance ratings, such as a Satisfactory past performance rating;
2. The Factor 3 “Relevancy” rating criteria, including:
a. Explaining the difference between a “Somewhat Relevant” and “Not Relevant” rating;
b. Providing definitions of “scope” and “complexities this solicitation requires” in the context of the Factor 3 “Relevancy” evaluation; and
c. Explaining in greater detail or issue new agency decisions regarding the ratings of the offeror’s past performance references, including providing a rational basis for how “scope,” “magnitude,” and the “complexities this solicitation requires” affect the ratings an offeror received for each of its past performance references.
3. Past performances references, credit both ATSC’s and FA873022C0017 contract past performance references or provide a fuller explanation as to why the fact that the two references come from the same contract should affect ATSC’s past performance rating.
On or before the date that is five days after the Navy completes its decisions on remand, the government shall file a status report with the Court that includes with it the document(s) that contain the Navy’s decision-making on remand.
On or before the date that is fourteen days after the government files the above status report, the parties shall file a joint status report, indicating whether there is a need for further proceedings in this case, and, if so, proposing a schedule for such proceedings or requesting a status conference with the Court.
The parties shall confer to determine agreed-to proposed redactions to this opinion. On or before July 11, 2025, the parties SHALL file a joint status report indicating their agreement on proposed redactions, attaching a copy of those pages of the Court’s opinion that contain proposed redactions, with all proposed redactions clearly indicated.
9 The Navy shall be mindful that “[t]his route has important limitations. When an agency’s initial explanation ‘indicate[s] the determinative reason for the final action taken,’ the agency may elaborate later on that reason (or reasons) but may not provide new ones.” Regents, 591 U.S. at 21 (alteration in original) (quoting Camp, 411 U.S. at 143). 28 Notwithstanding RCFC 52.2(b)(2), the Clerk of the Court need not serve this opinion and order on the Navy; rather, counsel for the United States SHALL provide a copy of this opinion and order to the cognizant contracting officer, which shall constitute service pursuant to that Rule.
IT IS SO ORDERED.
s/ Zachary N. Somers Zachary N. Somers Judge