Devtech Systems, Inc. v. United States

• Court: United States Court of Federal Claims
• Decided: May 1, 2025
• Docket: 24-1792
• Status: Published

Opinion

In the United States Court of Federal Claims

DEVTECH SYSTEMS, INC,

Plaintiff,

v. No. 24-cv-1792 THE UNITED STATES, Filed Under Seal: April 16, Defendant, 2025

and Publication: May 1, 20251

VERITAS MANAGEMENT GROUP, INC.,

Intervenor-Defendant.

David B. Dixon of Pillsbury Winthrop Shaw Pittman LLP, McLean, VA, argued for Plaintiff. With him on the briefs were Toghrul M. Shukurlu, Aleksey R. Dabbs, and Alexis P. Landrum of Pillsbury Winthrop Shaw Pittman LLP, McLean, VA.

Antonia R. Soares of the United States Department of Justice, Civil Division, Washington, D.C. argued for Defendant. With her on the briefs were Patricia M. McCarthy and Deborah A. Bynum, of the United States Department of Justice, Civil Division, Washington, D.C., and David A. Lank of the Office of the General Counsel, United States Department of Health & Human Services.

Gordon Griffin of Holland & Knight LLP, Washington, D.C., argued for Intervenor-Defendant. With him on the briefs were John M. McAdams III and Tanner N. Slaughter of Holland & Knight LLP, Washington, D.C.

1 This Memorandum and Order was filed under seal in accordance with the Protective Order entered in this action. ECF No. 9. On April 30, 2025, the parties filed a Notice proposing redactions to the Memorandum and Order. ECF No. 44. The sealed and public versions of this Memorandum and Order are identical, except for some redactions, this footnote, the publication date, and corrections to minor typographical errors. MEMORANDUM AND ORDER

In 2003, Congress enacted the United States Leadership Against HIV/AIDS, Tuberculosis,

and Malaria Act of 2003. 22 U.S.C. § 7601, et seq. This Act created the President’s Emergency

Plan for AIDS Relief (PEPFAR), which is “the largest health program worldwide for a single

disease.” About the President’s Emergency Plan for AIDS Relief (PEPFAR), Health Res. & Servs.

Admin (Dec. 2023), https://www.hrsa.gov/office-global-health/global-hivaids-program/about-

pepfar. PEPFAR is supported by several federal agencies, including the United States Department

of Health and Human Services (HHS); the United States Agency for International Development

(USAID); the United States Department of Defense; and the Peace Corps. Id.

On September 27, 2024, the Health Resources and Services Administration (HRSA or

Agency) awarded to Veritas Management Group, Inc. (Veritas or VMG) a task order for technical

professional staffing to support PEPFAR. Plaintiff DevTech Systems, Inc. (DevTech) challenges

that decision in this post award bid protest. Specifically, DevTech—which proposed a price more

than double Veritas’s and over five times the Agency’s internal price estimate—challenges the

Agency’s decision as arbitrary and capricious on two grounds. First, DevTech asserts that Veritas

was ineligible for award because its proposal failed to respond to several material provisions of

the Solicitation. Second, DevTech contends that the Agency erred in its evaluation of certain parts

of DevTech’s proposal. Pending before the Court are the parties’ Cross-Motions for Judgment on

the Administrative Record. As explained further below, the Court grants the Agency’s and

Veritas’s respective Motions for Judgment on the Administrative Record and denies DevTech’s

Motion for Judgment on the Administrative Record, as the Agency’s actions were not arbitrary

and capricious.

2 BACKGROUND

I. Procedural History

DevTech filed its Complaint on October 31, 2024, and subsequently amended its

Complaint twice—first on December 20, 2024 and again on January 13, 2025. See Complaint

(ECF No. 1); First Amended Complaint (ECF No. 23); Second Amended Complaint (ECF No. 28)

(Am. Compl.). As noted, DevTech challenges the decision of the Agency to award a task order

(RFP No. 75R60224Q00135) (Solicitation) to Veritas for technical assistance supporting PEPFAR

initiatives. Am. Compl. ¶ 1. On November 7, 2024, Veritas filed an Unopposed Motion to

Intervene, which this Court granted on the same day. See ECF No. 10; Order, dated Nov. 7, 2024

(ECF No. 14).

On November 27, 2024, pursuant to this Court’s Scheduling Order, the Agency made the

Administrative Record (AR) available for review. Scheduling Order, dated Nov. 22, 2024 (ECF

No. 21); Notice (ECF No. 22). The Agency subsequently amended the AR on January 7 and

January 10, 2025. See ECF Nos. 25, 26. On January 13, 2025, Plaintiff timely filed its Second

Amended Complaint, and the parties filed their Opening Motions for Judgment on the

Administrative Record (MJAR). 2 On January 31, 2025, the parties filed their Responsive MJARs, 3

and on February 20, 2025, the Court conducted oral argument. See Transcript, dated Feb. 20, 2025

2 See Am. Compl.; Veritas’s Cross-Motion for Judgment on the Administrative Record (ECF No. 27) (Veritas MJAR); DevTech’s Motion for Judgment on the Administrative Record (ECF No. 29- 1) (DevTech MJAR); Agency’s Motion for Judgment on the Administrative Record (ECF No. 30) (Agency MJAR). 3 Veritas Reply in Support of its Motion for Judgment on the Administrative Record and Response to Plaintiff’s Motion for Judgment on the Administrative Record (ECF No. 33) (Veritas Resp. MJAR); Plaintiff’s Opposition to Defendant’s and Defendant-Intervenor’s Motions for Judgment on the Administrative Record (ECF No. 34) (DevTech Resp. MJAR); Defendant’s Reply in Support of its Motion for Judgment on the Administrative Record and Response to Plaintiff’s Motion for Judgment on the Administrative Record (ECF No. 35) (Agency Resp. MJAR).

3 (ECF No. 41) (OA Tr.). During oral argument, the Court granted DevTech’s request for leave to

file a sur-reply to address issues raised at argument regarding the parties’ proposed project

managers, which it filed on February 27, 2025. ECF No. 39 (Sur-Reply); see also OA Tr. 133:4–

134:13; Minute Order, dated Feb. 20, 2025. Accordingly, the parties’ Cross-MJARs are fully

briefed and ripe for review.

II. The Solicitation

The Solicitation underlying this post-award bid protest is for a task order, issued on

September 4, 2024 as a request for proposal (RFP) through the General Services Administration’s

(GSA) eBuy website, which facilitates Government purchases of commercial goods via GSA

Multiple Award Schedule (MAS) contracts. AR222–23; FAR 8.402(d). 4 The Solicitation sought

bids for a contract “to provide Technical Assistance (TA) to support [the Agency’s Office of

Global Health (OGH)] in advancing PEPFAR initiatives,” which “includes aiding in programming,

strategic planning, communication, scientific publication, analytics, site visits, and staff

development for effective implementation.” AR300. The “support encompasses providing

necessary personnel and services to execute the tasks outlined” in the RFP. AR408. The Agency

anticipated issuing a firm-fixed price task order for a twelve-month period—the Base Period—

with four twelve-month Option Periods to follow. AR405; AR408.

The MAS program, which is also known as the Federal Supply Schedule (FSS) program,

is managed by GSA and provides a simplified avenue for federal agencies to procure commercial

supplies and services at prices associated with volume buying. FAR 8.402(a); see also Land Shark

Shredding, LLC v. United States, 842 F. App’x 594, 595 (Fed. Cir. 2021); Coast Pro., Inc. v.

4 The Federal Acquisition Regulation (FAR) is contained in Chapter 48 of the Code of Federal Regulations. Thus, all references to the FAR are shorthand for “48 C.F.R. §.”

4 United States, 828 F.3d 1349, 1351–52 (Fed. Cir. 2016). The program is streamlined because pre-

approved contractors publish a price list containing the pricing and terms and conditions for

services that the contractor offers, already determined to be fair and reasonable. See Land Shark,

842 F. App’x at 595 (citing FAR 8.402(a), (b)); Coast Pro., 828 F.3d at 1351. Agencies then post

requirements and obtain quotes through the GSA’s eBuy System. Land Shark, 842 F. App’x at

595. Orders placed against GSA MAS contracts are “‘considered to be issued using full and open

competition’ even though they are not subject to FAR Part 15, which prescribes procedures for

most negotiated contracts.” 5 Coast Pro., 828 F.3d at 1351–52 (quoting FAR 8.404(a)).

The Solicitation required offerors to submit their proposals in four separate volumes: the

Technical Proposal (Volume I), the Past Performance Proposal (Volume II), the Price Proposal

(Volume III), and Voluntary Product Accessibility Template (VPAT) language (Volume IV).

AR382. To make a best value decision, the Agency employed a “Trade-off Evaluation process.”

AR391. The Solicitation notes that the “Technical [factor] is more important than the Past

Performance [factor].” Id. Further, “[w]hen combined, the non-price factors (Technical and Past

Performance) are significantly more important than Price.” Id. The Solicitation, however,

explained that if “the evaluation reveals that two (2) or more proposals are approximately equal in

non-price factors, then price will become significantly more important.” Id. This is because “[t]he

Government will not make an award at a significantly higher overall cost to the Government to

achieve only slightly superior performance.” AR392. Despite requiring four proposal volumes,

the Agency’s evaluation and best value decision for the contract award were limited to Volumes I

5 Task orders under GSA MAS contracts are protestable events under Section 1491(b) and are not subject to the task order protest bar under the Federal Acquisition and Streamlining Act of 1994. Coast Pro., 828 F.3d at 1354 & n.4.

5 through III and did not include Volume IV, VPAT language. AR391. DevTech’s challenges

largely focus on Volume I, Technical Proposal, and Volume IV, VPAT Proposal. See generally

DevTech MJAR. Accordingly, the Court provides a detailed background of the Solicitation as

related to those volumes.

A. Volume I, Technical Proposal

As an initial matter, the Solicitation states that “[f]ailure to follow all steps in the Task

Order Request instructions may result in your task order proposal receiving no further

consideration for award.” AR382. The Solicitation then detailed its evaluation criteria for the

Technical Proposal. AR392–94. It explained that the Technical Proposal would be evaluated on

an adjectival basis where evaluators would assign an adjectival rating to each Technical Evaluation

Criterion. AR392. The Solicitation defined the adjectival ratings as follows:

Id. The Solicitation defined strengths and weaknesses, which “are the findings that support the

assigned adjective rating” as follows:

6 Id.

The Technical Proposal was comprised of five “Factors”: (1) Technical Approach;

(2) Understanding the Project; (3) Key Personnel; (4) Management and Staffing Plan; and

(5) Organizational Experience and Expertise. AR383. As DevTech’s Technical Proposal

challenges only pertain to Factors 1 and 3, the Court describes only those factors more fully below.

1. Technical Proposal (Volume I), Factor 1: Technical Approach

For Factor 1, Technical Approach, the Solicitation required the proposal to “fully describe

the proposed technical approach to meet each of the requirements specified under the Statement

of Work.” Id. More specifically, the Solicitation required proposals to include, among other

things:

• A detailed description of the content of each task and subtask to be performed to achieve the project objectives.

• A discussion of the methodology and workplan to be used for individual tasks or subtasks and scheduling of time and persons.

• A discussion of workflow efficiency, appropriateness of approach, and efficiency of resources.

• A discussion of anticipated major problem areas, together with potential approaches for their solution.

Id.

7 As part of the Technical Proposal, the Statement of Work (SOW) included 20 tasks, nine

of which were considered “optional.” AR409–34 (Required Tasks); AR434–38 (Optional Tasks).

The Optional Tasks could be exercised “upon the request” of the Agency. AR434. Each offeror’s

proposal was to address and price these Required and Optional Tasks. See AR409–38.

The SOW included a “Payment Schedule,” reproduced below. This chart appears to list

the quantity of tasks that the Agency expected offerors to complete for the Base Period. AR444–

45 (Payment Schedule for Base Period). Additional charts were included for tasks that the Agency

expected offerors to complete for each subsequent Option Period. AR446–51.

AR444–45 (Payment Schedule for Base Period).

In addition to the Payment Schedule, the SOW included a “Tasks Section,” which also

provided a maximum quantity for each of the Optional Tasks that the Agency could exercise.

AR434–38 (Tasks Section). There was, however, a discrepancy between the maximum quantity

of Optional Tasks listed in the Tasks Section and the quantity of Optional Tasks included in the

8 Payment Schedule. Compare id., with AR444–51; see also AR297 (stating that “[o]fferors will

use the payment schedule in the SOW to build their price propos[a]l.”).

Optional Task 2 included three separate site visits. Specifically, the quantities for those

three site visits under Optional Task 2, “Comprehensive Site Visit[s],” “Technical Assistance Site

Visit[s],” and “Diagnostic Site Visit[s],” differ between the Payment Schedule and the Tasks

Section. Compare AR434–38, with AR444–51. The Tasks Section provides that comprehensive

site visits and technical assistance site visits can be exercised up to two times per period while

diagnostic site visits can be exercised up to three times per period. AR434. Meanwhile, the

Payment Schedule lists the quantity for those site visits as 10, 22, and 9, respectively. AR445.

For Optional Task 9, “Analytical Projects,” the Tasks Section provided that the Agency could

exercise the Optional Task three times but only during Option Period One and Option Period Two.

AR438. The Payment Schedule, however, included three Analytical Projects for the Base Period

and each of the Option Periods. AR445–51. The chart below illustrates these discrepancies in the

quantities proposed for the Base Period.

Quantity Listed in Payment Quantity Listed in Tasks Optional Task Schedule for Base Period Section for Base Period

Comprehensive Site 10 2 Visits

Technical Assistance 22 2 Site Visits

Diagnostic Site Visits 9 3

Analytical Projects 3 0

AR434; AR438; AR445.

9 2. Technical Proposal (Volume I), Factor 3: Key Personnel

Under Factor 3, Key Personnel, which is also part of the Technical Proposal (Volume 1),

the Solicitation required that offerors provide:

• “short descriptions of key personnel and their qualifications in the technical proposal. Bios and full resumes for all personnel proposed for this project should be in the appendix. Each resume, in the appendix, shall not be longer than five (5) pages,” AR384; and

• “the types of professional persons who will perform the contract activities, including their education, previous experience relevant to PEPFAR specific programs, and specific technical accomplishments essential to the performance of the project, degrees, specialized training, and up-to-date certifications/licensure.” Id.

The instructions in the Solicitation for Factor 3 included comprehensive descriptions of

five positions that were “required to be part of the Offeror’s proposal”: (i) Project Manager,

(ii) Project Assistant, (iii) Research Analyst/Advisor (RAA), (iv) TA Specialist/ Research Analyst

(TA/RA); and (v) Social Science Analyst, Write/Editor (SSA). AR383–88.

B. Volume IV, Voluntary Product Accessibility Template (VPAT) Proposal

The Solicitation also required that each offeror submit a VPAT Proposal volume. AR382.

The Agency’s Section 508 compliance team, not the Technical Evaluation Panel (TEP), evaluated

the VPAT Proposals. AR2374.15–18. The VPAT requirement stems from Section 508 of the

Rehabilitation Act, 29 U.S.C. § 794d, which requires that digital content is accessible to those with

disabilities. AR438–39; Agency MJAR at 11–12; 6 see also AR438 (“Section 508 requires that all

external public facing content and non-public facing official agency communications be

accessible.”). Accordingly, the Solicitation instructed offerors to “complete and submit the

applicable HHS Section 508 Accessibility Compliance Checklist.” AR439.

6 Citations throughout this Memorandum and Order correspond to the ECF-assigned page numbers, which do not always correspond to the pagination within the document.

10 Rather than the adjectival reviews used to rate the Technical Proposals, VPAT Proposals

were assigned a “color” rating as follows:

AR396. The Solicitation specified that the Agency’s “evaluation of the VPAT [was] independent

from the other factors” and was based on the offeror’s ability to meet the Section 508 requirements.

Id. The Section 508 compliance team explained in an email to the contracting officer that VPAT

Proposals rated red are not acceptable for award while proposals rated yellow or green “are

acceptable to be offered a[n] award.” See AR2374.1. Thus, the VPAT Proposal volume could

only affect the overall award to an offeror if the Agency rated its VPAT Proposal red. Id.; see also

AR391; AR396.

III. Submission and Evaluations of Proposals

Eight offerors, including DevTech and Veritas, submitted proposals. AR2384; see also

AR641–747 (DevTech Proposal); AR1632–1830 (Veritas Proposal). A three-member TEP

reviewed each offeror’s Technical Proposal. AR1834–35. First, each TEP member individually

reviewed each proposal, assigning an adjectival rating. AR1834. After individually assigning

ratings, the TEP met collectively for a “consensus meeting” to discuss each proposal and

“reconcile differences” between the individual evaluations. Id. The TEP members then

consolidated their findings into the Agency’s Consolidated Evaluation Report. AR2063–2100

(Agency’s Consolidated Evaluation Report).

11 The TEP rated DevTech’s and Veritas’s respective Technical Proposals as Outstanding—

the highest possible rating. AR2063. The TEP panel did not assign any weaknesses to DevTech’s

proposal. AR2069–74. The panel assigned three weaknesses to Veritas’s proposal. AR2096–

2100. Notwithstanding those three weaknesses, Veritas’s proposal—like DevTech’s—received

Outstanding ratings overall and for each of the five technical evaluation factors that made up

Volume I, Technical Proposal. AR2069–74; AR2096–2100; AR2386–87.

For proposal Volume II, Past Performance, which was not discussed in detail above,

offerors received two ratings, one for relevancy and the other for performance confidence. See

AR395. For relevancy, both DevTech and Veritas received “Very Relevant” ratings—the highest

rating. Id.; AR2387. For performance confidence, however, Veritas received an “Exceptional”

rating—the highest available rating—while DevTech received a “Very Good” rating—the second

highest. AR395; AR2387–88.

Turning to price, DevTech’s proposal of was (i) more than five times

greater than the Agency’s cost estimate of , (ii) over higher than the next

highest offer price, and (iii) more than double Veritas’s bid. AR2388. Veritas’s winning bid came

in at $13,146,516.24, which is less than DevTech’s bid. Id. All offerors’ bids are

reproduced below:

Offeror Total Bid DevTech Systems

Veritas Management Group $13,146,516.24

12 Offeror Total Bid Independent Government Cost Estimate (IGCE)

Finally, separate from these factors considered in making its best value determination, the

Agency also rated the offerors’ VPAT Proposals. AR391 (explaining criteria for best value

determination); AR396 (noting “evaluation of the VPAT is independent from the other factors”);

AR2383–90. The Agency’s Section 508 compliance team rated DevTech’s VPAT Proposal

“RED,” while it rated Veritas’s VPAT Proposal “GREEN.” AR2388–89. Specifically, DevTech

was among four of the eight offerors to initially receive a red rating. AR2371–72. Subsequently,

the Agency’s contract specialist emailed each of these offerors requesting a revised VPAT

Proposal. See AR2172–73; AR2236; AR2245–46; AR2365. The offerors each submitted a

revised VPAT Proposal, which the contracting officer forwarded to the HRSA Section 508

compliance team for review. See AR2168–71; AR2234–35; AR2245; AR2363–64; AR2374.3.

The Agency’s Section 508 compliance team, however, pushed back on reviewing the amended

proposals due to time constraints. AR2374.2. In response, the contracting officer agreed that

going forward he would only send the compliance team revised proposals for re-evaluation “if it

[would] impact[] the awardee decision.” Id.; see also AR2390 (noting that “a second revision

would not be conducted” unless the proposal was “submitted by the selected awardee”).

Accordingly, the contracting officer did not submit any of the four offerors’ revised VPAT

Proposals for re-evaluation as none of these offerors prevailed in the separate, best value

determination. See AR2371–74.18; AR2390; see also Agency MJAR at 44 (acknowledging that

13 the Agency did not reevaluate the revised VPAT Proposals); infra Background § IV (discussing

results of best value determination).

IV. Best Value Determination

On September 27, 2024, the Agency determined that Veritas presented the best value to

the agency. See AR2390. As required by the Solicitation, the Agency based its determination and

analysis only on Volumes I through III—the technical, past performance, and price proposals. See

AR2383–90. Meanwhile, the VPAT Proposals were evaluated separately and could only

potentially affect the award determination to the extent an offeror received a red rating. AR391;

AR2374.6–.7. For comparison, below is a chart comparing DevTech and Veritas’s proposals

related to the best value analysis (Volumes I–III):

Agency MJAR at 19 (citing AR2385–88).

APPLICABLE LEGAL STANDARDS

The Tucker Act, 28 U.S.C. § 1491(b)(1), as amended by the Administrative Dispute

Resolution Act of 1996, provides this Court with jurisdiction over bid protests. Bid protests

proceed in two steps. First, the Court analyzes the procurement under the Administrative

Procedure Act’s (APA) standards to determine whether the Agency “acted without rational basis

or contrary to law when evaluating the bids and awarding the contract.” Bannum, Inc. v. United

States, 404 F.3d 1346, 1351 (Fed. Cir. 2005); 28 U.S.C. § 1491(b)(4); see Oak Grove Techs., LLC

14 v. United States, 116 F.4th 1364, 1374 (Fed. Cir. 2024). Second, the Court considers whether the

alleged errors prejudiced the protestor. DynCorp Int’l, LLC v. United States, 10 F.4th 1300, 1308

(Fed. Cir. 2021) (citing Bannum, 404 F.3d at 1351).

At step one, the Court reviews the procurement under the standards set forth in the APA.

28 U.S.C. § 1491(b)(4) (“In any action under this subsection, the courts shall review the agency’s

decision pursuant to the standards set forth in section 706 of title 5.”); Harmonia Holdings Grp.,

LLC v. United States, 20 F.4th 759, 766 (Fed. Cir. 2021). The APA requires a reviewing court to

determine whether an agency’s action was “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Bowman Transp., Inc. v.

Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 284 (1974). Thus, to prevail in a post-award bid

protest, a plaintiff must demonstrate that “(1) ‘the procurement official’s decision lacked a rational

basis’ or (2) ‘the procurement procedure involved a violation of regulation or procedure.’”

DynCorp Int’l, 10 F.4th at 1308 (quoting WellPoint Mil. Care Corp. v. United States, 953 F.3d

1373, 1377 (Fed. Cir. 2020)). When a disappointed bidder alleges a violation of a regulation or

procedure, the Court reviews whether there was “a clear and prejudicial violation of applicable

statutes or regulations.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d

1324, 1333 (Fed. Cir. 2001) (quoting Kentron Hawaii, Ltd v. Warner, 480 F.2d 1166, 1169 (D.C.

Cir. 1973)). When a bidder alleges that the procurement official’s decision lacked a rational basis,

the Court reviews “whether the contracting agency provided a coherent and reasonable explanation

of its exercise of discretion.” Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 992 (Fed. Cir.

2018) (quoting Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir.

2004)). Courts “will uphold a decision of less than ideal clarity if the agency’s path may

reasonably be discerned.” Bowman Transp., 419 U.S. at 286. Indeed, “[a]lthough the inquiry

15 under the APA ‘is to be searching and careful, . . . [t]he court is not empowered to substitute its

judgment for that of the agency.’” Insight Pub. Sector, Inc. v. United States, 161 Fed. Cl. 760, 786

(2022) (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416–20 (1971)).

As the United States Court of Appeals for the Federal Circuit has explained, “the

disappointed bidder bears a heavy burden of showing that the award decision had no rational

basis.” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (quoting

Impresa, 238 F.3d at 1333); see also Impresa, 238 F.3d at 1333 (noting a similarly high burden

for claims of a violation of regulation or procedure, which must involve “a clear . . . violation of

applicable statutes or regulations”). Consistent with this high burden, agency decisions are

“entitled to a presumption of regularity.” Impresa, 238 F.3d at 1338 (citing Bowen v. Am. Hosp.

Ass’n, 476 U.S. 610, 626–27 (1986)).

Agencies possess “substantial discretion” to make decisions involving “the minutiae of the

procurement process in such matters as technical ratings” or best value determinations. E.W. Bliss

Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (explaining that “a court will not second

guess” certain matters, such as “technical ratings . . . , which involve discretionary determinations

of procurement officials”); Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed.

Cir. 2004) (“[A]s the contract was to be awarded based on ‘best value,’ the contracting officer had

even greater discretion than if the contract were to have been awarded on the basis of cost alone.”

(quoting E.W. Bliss Co., 77 F.3d at 449)). Indeed, this Court’s “role in reviewing procurement

decisions . . . is not to evaluate the offerors’ proposals anew or to substitute [its] judgment for that

of the agency.” Harmonia Holdings Grp., LLC v. United States, 999 F.3d 1397, 1408 (Fed. Cir.

2021); see also Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (“If the court

finds a reasonable basis for the agency’s action, the court should stay its hand even though it might,

16 as an original proposition, have reached a different conclusion as to the proper administration and

application of the procurement regulations.”) (cleaned up).

At step two, this Court evaluates the factual question of prejudice. Sys. Stud. & Simulation,

Inc. v. United States, 22 F.4th 994, 998 (Fed. Cir. 2021) (citing WellPoint Mil., 953 F.3d at 1377);

see Bannum, 404 F.3d at 1357 (explaining that this Court’s “factual determination on prejudice . . .

is entitled to review for clear error like any finding in a bench trial”). Thus, “[t]o prevail in a bid

protest, a protestor must show a significant, prejudicial error in the procurement process.”

DynCorp Int’l, 10 F.4th at 1308 (quoting WellPoint Mil., 953 F.3d at 1377); see also Sys. Stud. &

Simulation, 22 F.4th at 998 (noting that there is no presumption of prejudice following a

procurement error by an agency). A protestor establishes prejudice by showing “that there was a

‘substantial chance’ it would have received the contract award but for that error.” Sys. Stud. &

Simulation, 22 F.4th at 998 (quoting Bannum, 404 F.3d at 1353); see also REV, LLC v. United

States, 91 F.4th 1156, 1163 (Fed. Cir. 2024) (noting that a disappointed bidder must have “had

greater than an insubstantial chance of securing the contract” (quoting Info. Tech. & Applications

Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003))). In other words, the disappointed

bidder must have been “within the zone of active consideration.” Colonial Press Int’l, Inc. v.

United States, 788 F.3d 1350, 1355 (Fed. Cir. 2015) (quoting Statistica, Inc. v. Christopher, 102

F.3d 1577, 1581 (Fed. Cir. 1996)); see Frawner Corp. v. United States, 161 Fed. Cl. 420, 455

(2022) (explaining that protestors must show that “barring the error the protestor would have been

‘within the zone of active consideration’”) (quoting Off. Design Grp. v. United States, 951 F.3d

1366, 1373–74 (Fed. Cir. 2020)).

In the Court of Federal Claims, bid protests are adjudicated under Rule 52.1(c), which

provides an expedited trial on a “paper record, allowing fact-finding by the trial court.” Rule

17 52.1(c) of the Rules of the United States Court of Federal Claims; Bannum, 404 F.3d at 1356

(referencing Rule 56.1, which was replaced by Rule 52.1(c)). Unlike at summary judgment,

genuine disputes of material fact do not preclude a court from granting a motion for judgment on

the administrative record. Bannum, 404 F.3d at 1357. This Court is also empowered to provide

any relief, including declaratory or injunctive relief, that it deems proper. 28 U.S.C. § 1491(b)(2);

Oak Grove, 116 F.4th at 1375. To that end, if necessary, this Court may remand the case back to

a governmental agency for further factual findings. See Rule 52.2.

DISCUSSION

DevTech challenges the contract award to Veritas, arguing that the Agency’s actions were

arbitrary and capricious and requesting a permanent injunction requiring the Agency to reevaluate

all proposals. To support its challenge, DevTech advances two general lines of argument. First,

that Veritas is ineligible for award because its proposal contains material defects, and second, that

the Agency’s evaluation of DevTech’s proposal was arbitrary and capricious. See generally

DevTech MJAR; Am. Compl. DevTech’s arguments fail on the merits because Veritas’s proposal

is eligible for award and the Agency appropriately evaluated DevTech’s proposal. Thus, since

DevTech’s protest fails, it is not entitled to injunctive relief.

I. Veritas’s Proposal is Eligible for Award.

DevTech first contends that the Agency’s award to Veritas is arbitrary and capricious

because it failed to find Veritas’s proposal ineligible for the award. Am. Compl. ¶¶ 71–191. In

support of its contention, DevTech advances multiple arguments as to why Veritas is ineligible for

award. First, DevTech alleges that Veritas’s proposal failed to meet several material Solicitation

requirements. DevTech MJAR at 16–27. Second, DevTech alleges that Veritas’s proposal is

ineligible because it proposed services not included in Veritas’s GSA MAS price list. Id. at 27–

18 31. DevTech asserts that the Agency’s failure to consider these material defects renders the

Agency’s evaluation arbitrary and capricious. Id. at 16. Alternatively, DevTech contends that, to

the extent the Agency waived material solicitation requirements for Veritas alone, the Agency

implicitly amended the Solicitation. OA Tr. 10:7–11:13; DevTech MJAR at 16. Thus, DevTech

contends that the Court should find Veritas’s proposal ineligible for award or, alternatively, the

Agency should be required to reopen the bidding to allow for DevTech to submit a revised bid

under the implicitly amended terms of the Solicitation. OA Tr. 10:7–11:13. After review of the

parties’ arguments and the Administrative Record, it is clear to the Court that Veritas was eligible

for the award and that DevTech’s contentions to the contrary lack merit.

“To be acceptable, a proposal must represent an offer to provide the exact thing called for

in the request for proposals, so that acceptance of the proposal will bind the contractor in

accordance with the material terms and conditions of the request for proposals.” Centech, 554

F.3d at 1037–38 (citing E.W. Bliss Co., 77 F.3d at 448). Put another way, “[a] proposal that does

not comply with material terms expressed in a solicitation cannot receive an award.” Superior

Optical Labs, Inc. v. United States, 173 Fed. Cl. 243, 254 (2024) (citing E.W. Bliss, 77 F.3d at

448).

To evaluate a solicitation, the Court looks to the plain language of the solicitation, guided

by the principles governing contract interpretation. Banknote Corp., 365 F.3d at 1353 n.4 (citing

Grumman Data Sys. Corp. v. United States, 88 F.3d 990, 997–98 (Fed. Cir. 1996)). The Court

must take care to interpret the Solicitation “in a manner that harmonizes and gives reasonable

meaning to all of its provisions.” Id. (citing Coast Fed. Bank, FSB v. United States, 323 F.3d 1035,

1038 (Fed. Cir. 2003) (en banc)).

19 If the Court finds that an offeror’s proposal fails to conform with the requirements of the

Solicitation, the next question—whether that missing requirement is material—is a question of law

that the Court reviews de novo. Oak Grove, 116 F.4th at 1379. A “defect or variation is immaterial

when the effect on price, quantity, quality, or delivery is negligible when contrasted with the total

cost or scope of the supplies or services being acquired.” Id. (quoting FAR 14.405); see also E.W.

Bliss, 77 F.3d at 448–49 (“[W]here a defect in a bid is trivial or a mere formality, not material, the

bid is not required to be rejected out of hand.” (quoting M.W. Kellogg Co./Siciliana Appalti

Costruzioni v. United States, 10 Cl. Ct. 17, 26 (1986))).

Conversely, a solicitation requirement is material when it “(1) is express in the solicitation,

and (2) serves a ‘substantive purpose.’” Superior Optical, 173 Fed. Cl. at 254 (quoting DigiFlight,

Inc. v. United States, 150 Fed. Cl. 650, 657 (2020)). A solicitation requirement serves a

“substantive purpose when it is important to the government’s evaluation, is binding on the offeror,

or has more than a negligible impact on the price, quantity, or quality of the bid.” ManTech

Advanced Sys. Int’l, Inc. v. United States, 141 Fed. Cl. 493, 508 (2019) (citing Bus. Integra, Inc.

v. United States, 116 Fed. Cl. 328, 335 (2014)). “Whether a requirement serves a substantive

purpose,” and is therefore material, “is for the agency to decide — not [a c]ourt.” Superior Optical,

173 Fed. Cl. at 254. Indeed, “a court will only overturn an agency’s determination that an offeror’s

bid satisfied the material requirements of the solicitation if such a finding was arbitrary and

capricious.” Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed. Cl. 488, 505 (2009)

(citing E.W. Bliss Co., 77 F.3d at 448).

While interpretation of the Solicitation is a question of law over which this Court exercises

de novo review, the Court still provides contracting officers “a great deal of discretion in making

contract award decisions, particularly when, as here, the contract is to be awarded [based on] best

20 value.” Banknote Corp., 365 F.3d at 1353, 1355–56; see also Garrett Elecs. v. United States, 163

Fed. Cl. 632, 672 (2023) (“An agency’s award decision is ‘least vulnerable to challenge when

based upon a best value determination.’” (quoting PlanetSpace Inc. v. United States, 96 Fed. Cl.

119, 125 (2010))). And as noted above, the Court will not wade into “the minutiae of the

procurement process in such matters as technical ratings . . . , which involve discretionary

determinations of procurement officials that a court will not second guess.” E.W. Bliss, 77 F.3d at

449; see also Off. Design, 951 F.3d at 1373 (noting that second guessing an agency’s discretionary

determinations “is not the court’s role”); see also Galen Med., 369 F.3d at 1339 (“[T]he technical

evaluation [is] an inherently judgmental process requiring deference.”); Newimar S.A. v. United

States, 160 Fed. Cl. 97, 130 (“In best value procurements like this one, the [Agency] has substantial

discretion in its technical evaluations.” (citing E.W. Bliss, 77 F.3d at 449)). In sum, the “highly

deferential . . . standard requires a reviewing court to sustain an agency action evincing rational

reasoning and consideration of relevant factors.” Advanced Data Concepts, Inc. v. United States,

216 F.3d 1054, 1058 (Fed. Cir. 2000) (citing Bowman, 419 U.S. at 285); see also CeleraPro, LLC

v. United States, 168 Fed. Cl. 408, 430 (2023) (“[I]t is not for the Court to substitute its own

judgment for that of the agency. Instead, . . . ‘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.’” (quoting Weeks Marine, Inc. v. United States, 575

F.3d 1352, 1371 (Fed. Cir. 2009))).

A. Veritas’s Proposal Conformed to the Requirements of The Solicitation.

DevTech contends that Veritas’s proposal is not awardable because it failed to address

material requirements of the Solicitation, specifically (i) providing an insufficient technical

approach for each of the Optional Tasks, DevTech MJAR at 17–19 (citing AR1654–55);

(ii) improperly pricing Optional Tasks 2 and 9, id. at 19–21; (iii) insufficiently responding to the

21 tasks and sub-tasks under Task 11, id. at 23–26; and (iv) proposing key personnel under Factor 3

(Key Personnel) with insufficient experience, id. at 26–27. Alternatively, DevTech contends that

the Agency impermissibly waived these material requirements such that the Agency should be

required to amend the Solicitation accordingly and provide DevTech an opportunity to bid on this

newly amended solicitation. OA Tr. 10:7–11:13; DevTech MJAR at 16. Each failure, DevTech

claims, renders Veritas ineligible for award. However, it is evident to the Court that Veritas’s

proposal does not suffer from any of the alleged defects. Accordingly, Veritas’s proposal was

eligible for the award.

1. Veritas’s Technical Approach Included Sufficient Responses for the Optional Tasks.

DevTech first asserts that Veritas’s response to the Optional Tasks failed to meet the

Solicitation’s material requirements. DevTech MJAR at 17–19, 21. As discussed above, the SOW

of the Technical Proposal included twenty tasks, nine of which were considered “optional.”

AR409–34 (Required Tasks), AR434–38 (Optional Tasks). These tasks were considered optional

because they could be exercised at “the request” of the Agency. AR434. The Solicitation required

that offerors “fully describe” their technical approach to the tasks, Optional and Required,

including “[a] detailed description of the content of each task and subtask” and “[a] discussion of

the methodology and workplan to be used for individual tasks or subtasks.” AR383. While the

Solicitation required offerors to “fully describe” their approach, it emphasized “clarity, relevance

and conciseness” including by encouraging offerors to cross-reference rather than repeat

information contained in multiple sections and limiting each offeror’s Technical Proposal to 30

pages. AR382.

Veritas’s proposal responded to the nine Optional Tasks as follows:

22 2.12 Optional Tasking

VMG will employ the diverse approaches presented in section 2.1 in the performance of optional tasks as they are assigned by the COR. However, given the limited details contained in the SOW on the potential magnitude and complexity of these various tasks and activities, it was very challenging to estimate the precise type of resources and level of effort that could potentially be required to complete such broad-based tasks/activities on a firm fixed price basis. To manage the high risk associated with such potential variability in scope, complexity, and level of effort, we have based our estimates on the average “medium” level of complexity and magnitude on a not-to-exceed fixed price basis.

AR1653–54. According to DevTech, this response is inadequate because it failed to “address any

of the Factor 1 requirements with respect to the optional tasks” constitutes a “confess[ion] that

[Veritas] did not understand what any of the nine Optional Tasks entail.” DevTech MJAR at 18.

DevTech contends that the paragraph fails to meet material solicitation requirements because it

fails to respond to each task individually and does not fully describe Veritas’s technical approach

to any of the Optional Tasks. Id. at 18–19, 21.

The Agency counters that Veritas’s response was sufficient and that, in any event, the

Optional Tasks were not material based on the plain text of the Solicitation. Agency Resp. MJAR

at 11–13; OA Tr. 81:7–84:20; see also Agency MJAR at 27 (quoting AR434). The Agency

contends that Veritas’s reference to “section 2.1” in its proposal was consistent with the

Solicitation’s instructions (i) that “[w]here data/information appears in one part, it does not have

to be repeated in any other part,” and (ii) to include a “discussion of anticipated major problem

areas, together with potential approaches for their solutions.” AR382–83; Agency MJAR at 28

(first quoting AR382; and then quoting AR1653); Agency Resp. MJAR at 12 (quoting AR382);

OA Tr. 68:4–70:14 (“[T]he instructions are basically inviting what VMG is doing here.”). Veritas

similarly argues that it properly addressed the Optional Tasks, albeit “through a high-level

discussion that referenced its more in-depth analysis of the non-optional tasks.” Veritas MJAR at

14–15. Veritas also contends that the only offerors who received significant weaknesses for the

23 Optional Tasks were the two offerors who wholly failed to address the Optional Tasks.

Accordingly, Veritas asserts that it would be “unreasonable” to be rated similarly or lower than

offerors who failed to address the Optional Tasks at all. Id. at 16 (first citing AR2081 ; and

then citing AR2085 ); see also AR2081 (“The offeror did not include any description

or discussion to address Optional Tasks.”); AR2085 (same).

Veritas adequately responded to the Optional Tasks. Veritas’s response was consistent

with the terms of the Solicitation, and the Agency’s conclusion that Veritas sufficiently responded

was rational. The Court assesses Veritas’s response in light of the Solicitation’s encouragement

to refrain from submitting lengthy answers to the Technical Proposal. See AR382. Specifically,

the Solicitation (i) notes that “[t]he clarity, relevance and conciseness of the task order proposal is

important, not the length,” id.; (ii) encourages offerors to cross-reference repeated information,

id.; and (iii) limits the length of the Technical Proposal to 30 pages, id. Thus, Veritas’s response

to the Optional Tasks, though brief, was sufficient because, consistent with the Solicitation’s

instructions, Veritas cross-referenced to another section that contained a substantive response,

thereby incorporating that response. AR1653–54; see AR382.

DevTech contends that the cross reference in Veritas’s Technical Proposal, which totals 21

pages, was too vague. See DevTech Resp. MJAR at 7–8; DevTech MJAR at 17–18; see OA Tr.

124:12–25 (discussing Veritas’s cross-reference as encompassing the entire 21 pages of Veritas’s

Technical Proposal addressing all eleven Required Tasks). Veritas’s cross reference back to the

main portion of its proposal contained sufficient information for the Agency to evaluate the

Optional Tasks, particularly given that multiple Optional and Required Tasks served the same or

overlapping purposes. Agency MJAR at 28. Indeed, four of the nine Optional Tasks fully overlap

in purpose with the Required Tasks. Id.; compare, e.g., AR423–24 (Task 8: Special Projects), with

24 AR435–36 (Optional Task 3: Special Projects); AR414–15 (Task 5: Continuous Learning

Resources), with AR434 (Optional Task 1: Orientation, Trainings, and Learning Sessions);

AR417–20 (Task 6: Serve as ISME in Comprehensive, Diagnostic and Technical Assistance Site

Visits), with AR434-35 (Optional Task 2: Site Visits, including Comprehensive, Technical

Assistance, and Diagnostic Site Visits). This overlap, while not complete, undercuts DevTech’s

assertion that Veritas “does not address any of the Factor 1 requirements with respect to the

optional tasks.” DevTech MJAR at 18. In sum, Veritas’s approach, though short and high-level,

was a sufficient response given the cross-reference to another substantive section response and the

overlap between the Optional Tasks and Required Tasks. It was also consistent with the

Solicitation’s instruction that “[t]he clarity, relevance, and conciseness of the task order proposal

is important, not the length.” AR382; AR1653–54.

DevTech also asserts that the “Agency’s evaluation failed to notice” this alleged error.

DevTech MJAR at 25. The Administrative Record, however, shows otherwise. Indeed, one of

the Agency’s individual reviewers initially assigned Veritas a weakness for its Optional Tasks,

noting that the Optional Tasks were “covered in a short paragraph and refer[] back to main tasks.”

AR2040. Ultimately, the TEP met and came to a consensus to award Veritas no weaknesses or

strengths for its Optional Tasks in the Agency’s Consolidated Evaluation Report. AR1832;

AR1834; AR2097–98. This is consistent with how the Agency evaluated other proposals.7 See,

7 For example, offerors other than Veritas received no strengths or weaknesses for the Optional Tasks in the Agency’s Consolidated Evaluation Report. AR2071–72 (DevTech); AR2088–89 (ProScopeo); AR2093–94 (Rumph and Associates). Offerors who “excluded any description or discussion” of Optional Tasks were assessed only significant weaknesses, not deficiencies. AR2076 (G2S); AR2080–81 (IMS); 2083–85 (Links Media); see also AR392 (defining deficiency as a “material failure of a proposal to meet a Government requirement . . . that increases the risk of unsuccessful contract performance to an unacceptable level”). Thus, the Agency’s evaluation of the other proposals is squarely at odds DevTech’s assertion that Veritas should be considered ineligible based on its response to the Optional Tasks. See DevTech MJAR at 17–19.

25 e.g., AR2071–72; AR2076; AR2080–81; 2083–85; AR2088–89; AR2093–94. Thus, the record

reflects that the Agency considered Veritas’s short response and found it to be sufficient. See

Advanced Data, 216 F.3d at 1058 (noting that the “highly deferential” arbitrary and capricious

“standard requires a reviewing court to sustain an agency action evincing rational reasoning and

consideration of relevant factors.” (citing Bowman, 419 U.S. at 285)); Impresa, 238 F.3d at 1338

(noting that agency actions are “entitled to a presumption of regularity.”).

Finally, the Optional Tasks are part of the Agency’s technical evaluation. AR382–83;

AR2039–40. Thus, the Agency’s determinations regarding the Optional Tasks are entitled to

deference. Off. Design, 951 F.3d at 1373; see also Galen Med., 369 F.3d at 1339 (“[T]he technical

evaluation [is] an inherently judgmental process requiring deference.”); Blackwater Lodge, 86 Fed.

Cl. at 505 (“[A] court will only overturn an agency’s determination that an offeror’s bid satisfied

the material requirements of the solicitation if such a finding was arbitrary and capricious.” (citing

E.W. Bliss Co., 77 F.3d at 448)).

In sum, DevTech cannot carry its heavy burden to demonstrate that the Agency’s decision

was arbitrary and capricious here. Centech, 554 F.3d at 1037. This is because Veritas’s response,

while short, was sufficient in light of the Solicitation’s directions and the overlapping nature of

many of the Optional and Required Tasks. Accordingly, the Agency’s ultimate determination—

which is afforded great deference—was not arbitrary and capricious. Off. Design, 951 F.3d at

1373; see also E.W. Bliss, 77 F.3d at 449 (noting that the court “will not second guess” the

“minutiae of the procurement process in such matters as technical ratings . . . , which involve

discretionary determinations of procurement officials”).

2. Veritas Did Not Improperly Price Optional Tasks 2 and 9.

DevTech next contends that Veritas (i) priced improper quantities of the Optional Tasks

and (ii) improperly reserved the right to renegotiate the overall cost after award. See DevTech

26 MJAR at 19–21; DevTech Resp. MJAR at 10–13. These arguments lack merit. As described

below, Veritas’s pricing for Optional Tasks 2 and 9 was proper, and the Agency fully considered

the response. Further, to the extent Veritas’s response to the Solicitation could somehow be

considered impermissible, DevTech waived its ability to bring such a claim, which would have

resulted from a patent ambiguity in the Solicitation. See Blue & Gold Fleet, L.P. v. United States,

492 F.3d 1308, 1313 (Fed. Cir. 2007). Nor does the record reflect that Veritas reserved the right

to reprice its costs after award, as DevTech contends; in contrast the record reflects that Veritas is

bound to its pricing as bid.

a) Veritas’s Pricing of the Optional Tasks was Proper; Alternatively, DevTech Waived This Argument Under Blue & Gold.

As noted, the SOW included a “Payment Schedule,” for offerors to build their price

proposals for the Base Period and each Option Period. AR444–45; AR297 (indicating that

“[o]fferors will use the payment schedule in the SOW to build their price propos[a]l” in response

to a question about the price proposal). The Tasks Section, however, included a different quantity

of deliverables for Optional Tasks 2 and 9 than the Payment Schedule included. Compare AR434–

38, with AR444–51.

Quantity Listed in Tasks Quantity Listed in Payment Optional Task Section for Base Period Schedule for Base Period Comprehensive Site 2 10 Visits Technical Assistance 2 22 Site Visits Diagnostic Site Visits 3 9 Analytical Projects 0 3

27 The chart above reflects the differences in the quantity of Optional Tasks listed in (i) the

Payment Schedule and (ii) the Tasks Section. For example, while the Tasks Section provides that

Comprehensive Site Visits “[could] be exercised . . . [u]p to Two (2) times (one per implementing

partner),” the Payment Schedule provides for ten Comprehensive Site Visits. Compare AR434,

with AR445. Similar discrepancies appear for other site visits under Optional Task 2, including

Technical Assistance Site Visits and Diagnostic Site Visits. Compare AR434 (noting that

Technical Assistance Site Visits “can be exercised . . . Up to Two(2) [sic] times (one per

country)”), with AR445 (listing quantity as “22” under Technical Assistance Site Visit in Payment

Schedule); compare AR434 (noting that Diagnostic Site Visit “can be exercised . . . Up to Three

(3) times [] (one per region)”), with AR445 (listing quantity as “9” under Diagnostic Site Visit in

Payment Schedule).

Further, for Optional Task 9, Analytical Projects, the Tasks Section provides that the

analytical projects “[c]an be exercised three (3) times each,” but only “during the Option Period

One and Option Period Two.” AR438 (emphasis omitted). Thus, under the Tasks Section, the

Agency could not exercise Optional Task 9 during the Base Period or Option Periods Three and

Four. Id. While the Payment Schedule also lists the quantity of analytical projects as three, it

includes three analytical projects during each of the Base and Option Periods. AR444–51. This

plainly conflicts with the Tasks Section, which limits exercising of Optional Task 9, analytical

projects, to only “during the Option Period One and Option Period Two,” not during the Base

Period or Option Periods Three and Four. AR438 (emphasis omitted).

Before the deadline to submit bids, one prospective offeror submitted a question to the

Agency regarding the Payment Schedule. The prospective offeror asked:

Volume III. 3 Price Proposal Instructions, Section (c) says “Offeror shall propose a payment schedule with unit prices and to[t]al pricing”: A payment Schedule is

28 provided in Attachment B - pages 35-40[.] Shoudln't [sic] this Table be used by offerors to build the Paynment [sic] schedule? Are [] we expected to provide our own payment proposal?

AR297. In response, the Agency answered that “[o]fferors will use the payment schedule in the

SOW to build their price propos[a]l.” Id.

In its proposal, Veritas used the quantities listed in the Tasks Section, not the Payment

Schedule. AR1737–46. Thus, as illustrated in the chart below, Veritas only priced two technical

assistance and comprehensive site visits, three diagnostic site visits, and no analytical projects for

the Base Period. AR1738.

Quantity Listed in Quantity Listed in Quantity Priced Optional Task Tasks Section for Payment Schedule by Veritas for Base Period for Base Period Base Period Comprehensive Site 2 10 2 Visits Technical Assistance 2 22 2 Site Visits Diagnostic Site Visits 3 9 3 Analytical Projects 0 3 0

AR434–38, AR444–51; AR1737–38. Veritas was the only offeror that priced these Optional Tasks

using the quantity included in the Tasks Section rather than the Payment Schedule. OA Tr. 15:3–

6, 77:13–17.

DevTech contends that Veritas’s failure to price the quantities provided in the Payment

Schedule constituted a disqualifying failure to meet a material solicitation requirement and

“created a false and unfair price comparison” between Veritas and DevTech’s proposals. DevTech

MJAR at 17, 19, 21. The Agency asserts that it identified and considered Veritas’s pricing

assumptions and that nothing in the record demonstrates that it took issue with those assumptions.

Agency MJAR at 29–30. Veritas responds that it provided an approach “based on a reasonable

29 reading of the Solicitation,” which “brought two competing portions of the SOW into agreement”

by complying with the plain language of the Tasks Section and its pricing assumptions. Veritas

MJAR at 17–21; AR434; AR438.

A review of the record reflects that the Agency did not act arbitrarily and capriciously; it

fully considered Veritas’s responses to the Optional Task pricing and found them sufficient. To

begin, the record reflects multiple instances where the Agency fully considered Veritas’s responses

and still found them sufficient. For example, a native Excel file generated by the Agency during

its technical evaluation, the “Technical Evaluation Panel Review – Business,” demonstrates that

the Agency recognized that Veritas priced a different quantity of site visits under Optional Task 2.

AR Tab 40a (sheet: Cost Deliverables, cells S23–25); 8 Index to the Corrected Administrative

Record (ECF No. 25-2); see OA Tr. 78:11–79:22. The formulas in these cells reflect that the TEP

calculated the unit price for Veritas using the number of visits that Veritas priced based on the

Tasks Section rather than the quantity included in the Payment Schedule, which were reproduced

in column D of the same sheet, as the TEP did for other offerors like Devtech. AR Tab 40a

(dividing Veritas’s overall price for the Optional Task 2 site visits, cells T23–25, by the quantities

included in the Tasks Section (two or three visits) rather than the quantities included in the Payment

Schedule, to produce accurate unit pricing in cells S23–25); see also id. (sheet: Cost Deliverables,

cells G23–25) (illustrating that unit price for DevTech was calculated by dividing the total price

in cells H23–25 by the quantities included in cells D23–25, which match the quantities included

in the Payment Schedule). Indeed, in AR Tab 40a, Veritas’s unit prices for the three site visits as

part of Optional Task 2 are marked in red. AR Tab 40a (sheet: Cost Deliverables, cells S23–25);

8 As AR Tab 40a appears to be a duplicate of AR Tab 28, the Court only references AR Tab 40a.

30 OA Tr. 79:10–22 (Agency counsel explaining that “a logical inference” of the red text “is noting

that the quantities being proposed by this offeror are not a mirror image with the payment

schedule”).

AR Tab 40a illustrates that the Agency recognized that Veritas priced a different quantity

of Optional Tasks 2 and 9 than other offerors and revised its internal review to reflect the proper

unit costs. By doing so, the Agency compared apples to apples, considering Veritas’s unit pricing

against the unit pricing of other offerors regardless of the quantity proposed. AR Tab 40a. Further,

one of the individual TEP members specifically noted that Veritas did not price Optional Task 9

for the Base Period. AR2151 (“There should be a Unit and Total Costs for Optional Task 9

(Analytical Projects), which is listed as $0.”). The Agency also noted in the Award Summary that

all cost proposals “were evaluated by the TEP members as well for level of effort and

appropriateness.” AR2388. Thus, the record demonstrates that the Agency appropriately reviewed

Veritas’s pricing proposal, recognized its pricing approach, and found no issue with Veritas’s

pricing of Optional Tasks 2 and 9 even when that pricing was based on the quantity included in

the Tasks Section, not the Payment Schedule. See Advanced Data, 216 F.3d at 1058 (noting that

the “highly deferential” arbitrary and capricious “standard requires a reviewing court to sustain an

agency action evincing rational reasoning and consideration of relevant factors.” (citing Bowman,

419 U.S. at 285)).

The Agency’s acceptance was reasonable as the contract at issue is a firm-fixed price

contract. AR405. Indeed, Veritas must stand by the prices it proposed, even if its pricing

assumptions are incorrect. See Veritas Resp. MJAR at 3 (“V[eritas’s] pricing assumption makes

clear that it established a ceiling on its proposed price, such that even if [it] were incorrect

regarding quantity, the total price proposed is the total price to which [it] committed.”). At oral

31 argument, counsel for both the Agency and Veritas confirmed that Veritas could not amend its

Optional Task pricing. OA Tr. 70:15–20, 117:15–18, 131:13–132:15.

In sum, given that the Agency sufficiently considered the quantity of Optional Tasks

proposed by Veritas along with the firm-fixed price nature of the contract, coupled with the

Agency’s presumption of regularity and DevTech’s heavy burden, the Court cannot conclude that

the Agency acted arbitrarily or capriciously in accepting Veritas’s pricing assumptions. See

DynCorp Int’l, 10 F.4th at 1312–13 (quoting Impresa, 238 F.3d at 1337); Off. Design, 951 F.3d at

1373; Centech, 554 F.3d at 1037; Impresa, 238 F.3d at 1338.

Even if Veritas’s reading of the SOW was somehow an impermissible reading of the

Solicitation, DevTech waived this argument under Blue & Gold by failing to raise it before the

close of bidding. See Blue & Gold, 492 F.3d at 1313. This is because any conflict between the

amount of Optional Tasks listed in the Tasks Section versus the Payment Schedule is an obvious

and significant inconsistency.

“A defect in a solicitation is patent if it is an obvious omission, inconsistency, or

discrepancy of significance . . . [that] could have been discovered by reasonable and customary

care.” Inserso Corp. v. United States, 961 F.3d 1343, 1349 (Fed. Cir. 2020). A solicitation

provision “is ambiguous only if its language is susceptible to more than one reasonable

interpretation.” Banknote Corp., 365 F.3d at 1353 (citing Grumman Data Sys., 88 F.3d at 997).

In the post-award bid protest context, “a party who has the opportunity to object to the terms of a

government solicitation containing a patent error and fails to do so prior to the close of the bidding

process waives its ability to raise the same objection subsequently in a bid protest action in the

Court of Federal Claims.” Blue & Gold, 492 F.3d at 1313. This is so even where “a challenge to

the terms of the solicitation” is “characterize[d] . . . as a challenge to the evaluation of [an

32 awardee’s] proposal.” Id. Accordingly, if a Solicitation provision is ambiguous and that ambiguity

was clear before the close of bidding, the protestor may not advance arguments based on that

ambiguity. Id.

While Agency counsel equivocated whether there was a Blue & Gold issue related to the

discrepancies in quantities between the Tasks Section and Payment Schedule, Veritas advanced a

Blue & Gold argument. See OA Tr. 71:22–77:11, 114:4–115:6; Veritas MJAR at 17–21. The

quantity in the Tasks Section and the Payment Schedule plainly conflict as they offer different

quantities. Blue & Gold, 492 F.3d at 1313; compare AR434–38, with AR444–51. DevTech

argued in its responsive MJAR and at oral argument that the number in the Tasks Section “state[s]

how frequently the Agency can exercise optional tasks,” while the Payment Schedule lists “the

quantity of each task per exercised option.” DevTech Resp. MJAR at 13 (emphasis omitted); OA

Tr. 12:16–15:21. Even if true, this does not resolve the conflict between the Tasks Section and the

Payment Schedule. For example, with Optional Task 9, the SOW plainly states that Analytical

Projects can be exercised three times during Option Periods One and Two only. AR438. Thus,

even under DevTech’s proposed reading of the SOW, the Agency would be unable to exercise

Analytical Projects during the Base Period and Option Periods Three and Four. Id. Yet, the

Payment Schedule still includes three Analytical Projects during those years, directly conflicting

with the Tasks Section requirements and DevTech’s argument. AR438; AR445; AR449; AR451;

DevTech Resp. MJAR at 13. Thus, the inconsistency “could have been discovered by reasonable

and customary care.” Inserso, 961 F.3d at 1349. Even if a “cautious offeror” would not have used

the quantities included in the Tasks Section or the contracting officer did not see the ambiguity

does not bear on the fact that the inconsistency could have been discovered by reasonable care.

OA Tr. 76:14–16; Inserso, 961 F.3d at 1349. Thus, because the conflict between the quantity in

33 the Tasks Section and the Payment Schedule was apparent from a facial review of the SOW,

DevTech waived this argument under Blue & Gold when it failed to challenge this patent

ambiguity pre-award. 492 F.3d at 1313; compare AR434–38, with AR444–51.

b) Veritas Did Not Reserve the Right to Reprice the Optional Tasks Later.

In addition to challenging the pricing quantities on which Veritas based its proposal,

DevTech asserts that Veritas’s pricing illustrates Veritas’s expectation that it would be able to

reprice its proposal later, violating the Solicitation’s firm, fixed price requirement. DevTech

MJAR at 22 (citing AR396). DevTech bases this assertion on Veritas’s language in its price

proposal, which notes that:

VMG’s estimate of cost for this project is based on a not-to-exceed Firm Fixed Price (FFP) Contract Line Item (CLIN) structure. VMG staff will work with HRSA counterparts to accomplish tasks and deliverables according to the established project schedule, priorities and budgets. Given the limited details on some task/activities contained in the HRSA SOW with respect to the potential magnitude and complexity of various tasks and activities (especially Tasks 5, 7 and 8) it was very challenging to estimate the precise type of resources and level of effort that could potentially be required to complete such broad-based tasks/activities on a firm fixed price basis. To manage the high risk, on a firm fixed price contract, associated with such potential variability in scope, complexity, and level of effort, we have based our estimates on the average “medium” level of complexity and magnitude, on a not-to-exceed fixed price basis. VMG will work cooperatively with the HRSA COR and key stakeholders to establish greater clarity around scope, determine priorities and ensure alignment of HRSA objectives, timelines and budget resources with maximum flexibility to make any necessary adjustments to ensure project success and customer satisfaction.

AR1735 (emphasis in original). Specifically, DevTech reads the line that Veritas “will work

cooperatively with the [Agency] and key stakeholders to establish greater clarity around scope . . .

and budget resources with maximum flexibility to make any necessary adjustments” as a

reservation of Veritas’s right to reprice these tasks later. DevTech MJAR at 21–23.

34 The Court concludes that Veritas did not reserve any right to amend its price later. Rather,

Veritas simply recognized uncertainty as to which Optional Tasks would be exercised. 9 Veritas

MJAR at 20. Veritas’s conclusion is supported by its own proposal, which plainly acknowledges

the firm-fixed price nature of the Solicitation. For example, the excerpt above directly

acknowledged that Veritas’s cost estimate is for a fixed price contract four times in the same

paragraph. AR1735. This reflects that Veritas understood the nature of the contract and committed

to not altering its prices. Id. Further supporting this conclusion, at oral argument the Agency and

Veritas both acknowledged that Veritas could not amend its unit pricing as proposed. OA Tr.

70:15–20, 117:15–18, 131:13–132:15.

Finally, Harmonia, another case from this Court, is instructive. See Harmonia Holdings

Grp., LLC v. United States, 136 Fed. Cl. 298 (2018). In Harmonia, the protestor alleged that the

awardee’s inclusion of certain assumptions in its price quotation indicated that the awardee

“reserved . . . the right to a price adjustment any time it encounters anything . . . not specifically

identified in the statement of work.” Id. at 312 (cleaned up). Those assumptions were that “the

government will provide [awardee] timely access to facilities required for the completion of the

work aligned with this contract,” and “the government will provide [awardee] timely access to

staff and subject matter experts . . . required for the completion of the work assigned during this

contract.” Id. (cleaned up). The Harmonia court, however, rejected this assertion, concluding that

9 At most, the language may be suggestive that Veritas could later seek an equitable adjustment of its pricing. At oral argument, Veritas’s counsel acknowledged that the contracting officer could deny any request for equitable adjustment, and DevTech does not point to any requirement in the Solicitation stating that such a statement disqualifies a proposal. As Veritas confirmed its unit price for each Optional Task was not subject to change, whether an equitable adjustment would occur is a question for contract administration, not a bid protest, and accordingly weighs against DevTech. OA Tr. 117:15–18, 131:13–132:15.

35 the awardee’s “assumptions are [nothing] more than an illustration that [the awardee] understood

the solicitation’s requirements and the scope of work.” Id. (cleaned up). Here, like in Harmonia,

nothing in Veritas’s proposal reserves the right for the awardee to amend its firm-fixed pricing

quote later. Id.; AR1734–35. Rather, Veritas’s assumptions simply indicate that it fully

appreciated the Solicitation’s requirements.

3. The Agency Rationally Concluded that Veritas’s Response to Task 11 Was a Weakness.

DevTech asserts that Veritas failed to adequately respond to the many subtasks and sub-

subtasks under Task 11, Basic Security Requirements. DevTech MJAR 23–26. The Court finds

that the Agency properly considered Veritas’s response and rationally awarded Veritas a weakness

after finding its proposal was partially responsive. Even if Veritas’s responses were not sufficient,

Task 11 is not material, and DevTech cannot establish prejudice because DevTech’s responses to

Task 11 suffer from similar issues.

a) Veritas’s Response to Task 11 was Sufficient.

Task 11 contains thirteen subtasks and even more sub-subtasks. AR427–39. Veritas

responded to Task 11 in its Solicitation as follows:

VMG Is familiar with the security requirements under Task 11 from our work with HRSA, CDC, CMS FDA, and other federal agencies. We will ensure full compliance with all security requirements, effectively safeguarding government information and maintaining high-security standards throughout the contract duration. This is accomplished using internal contract, program, and project management practices, procedures and robust processes managed within our PMO.

AR1653. As discussed above, the Solicitation required that offerors “fully describe” their

technical approach, including “[a] detailed description of the content of each task and subtask.”

AR383. Based on Veritas’s response, quoted above, the Agency assigned Veritas a weakness,

noting that the response “[o]nly partially covered the security components with a few sentences

when covering general compliance with all the related tasks.” AR2098. The Agency’s TEP

36 Review Checklist notes that Veritas responded to Task 11 overall, but for each subtask and sub-

subtask, the TEP marked that Veritas only provided a “Partial” response. AR Tab 40a (sheet: Tech

Reqs, cells R49–80).

DevTech argues that (i) the Agency improperly downplayed the significance of Veritas’s

failure to meet the Solicitation’s requirements by only assigning a weakness when, in its view,

Veritas’s response was entirely non-responsive, and (ii) the Agency’s finding that Veritas had

responded to some of the subtasks is contrary to the Solicitation because Veritas failed to comply

with its requirements. DevTech MJAR at 25–26. The Agency responds that it is not the Court’s

job to second-guess the Agency’s discretionary determinations, particularly those regarding

technical evaluations. Agency MJAR at 30–31 (citing Off. Design, 951 F.3d at 1373). Veritas

advances a similar argument and further notes that (i) even with this weakness, Veritas’s strengths

“far outweigh[ed]” the weaknesses assessed under Task 11, and (ii) the Agency’s assignment of a

weakness is consistent with how it rated similar descriptions from other offerors. Veritas MJAR

21–23 (first quoting AR2097–98; then citing AR2066; then citing AR2076; and then citing

AR2089).

The Court will not second guess the Agency’s discretionary determinations, particularly

where the record shows that the Agency fully considered Veritas’s response. See Advanced Data,

216 F.3d at 1058 (noting that the “highly deferential” arbitrary and capricious “standard requires

a reviewing court to sustain an agency action evincing rational reasoning and consideration of

relevant factors.” (citing Bowman, 419 U.S. at 285)). “It goes without saying that an agency has

‘great discretion in determining the scope of an evaluation factor.’” Elec. Data Sys., LLC v. United

States, 93 Fed. Cl. 416, 430 (2010) (quoting Forestry Surveys & Data v. United States, 44 Fed. Cl.

493, 499 (1999)); Galen Med., 369 F.3d at 1339 (“[T]he technical evaluation [is] an inherently

37 judgmental process requiring deference.”). As the Federal Circuit has made very clear, it is not

the job of the Court to second guess an Agency’s discretionary determination. Off. Design, 951

F.3d at 1373; E.W. Bliss, 77 F.3d at 449 (noting that “a court will not second guess” certain matters,

such as “technical ratings . . . , which involve discretionary determinations of procurement

officials”). Further, it would be improper for the Court to substitute its own judgment for that of

the Agency. Harmonia Holdings, 999 F.3d at 1408 (noting that the Court’s “role in reviewing

procurement decisions, . . . is not to evaluate the offerors’ proposals anew or to substitute [its]

judgment for that of the agency”); Honeywell, 870 F.2d at 648 (“If the court finds a reasonable

basis for the 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.”).

The Agency fully considered Veritas’s response, concluded that the responses were

sufficient, and awarded Veritas a weakness. See AR2097–98; AR Tab 40a (sheet: Tech Reqs, cells

R49–80). In reaching its consensus in the Agency’s Consolidated Evaluation Report, one reviewer

awarded Veritas a significant weakness for Task 11 in their individual evaluation. AR2040. As

explained above, each offeror’s Technical Proposals were first reviewed individually by each

member of the TEP. AR1834–35. After each TEP member individually assigned ratings to an

offeror’s proposal, the TEP was required to meet collectively for a “consensus meeting” to discuss

each proposal and “reconcile differences” between the TEP member’s evaluations. AR1834. The

TEP members then consolidated their findings into the Agency’s Consolidated Evaluation Report.

AR2063–2100. After discussing, reconciling, and consolidating their individual ratings, the TEP

jointly assessed Veritas’s response to Task 11 a weakness, noting that it “[o]nly partially covered

the security components with a few sentences when covering general compliance with all related

38 tasks.” AR2098. It is clear that the Agency’s TEP thoroughly considered the responsiveness of

Veritas’s response to Task 11—including its brevity—and came to the consensus of awarding it a

weakness. See id.; see also Advanced Data, 216 F.3d at 1058 (noting that the “highly deferential”

arbitrary and capricious “standard requires a reviewing court to sustain an agency action evincing

rational reasoning and consideration of relevant factors.” (citing Bowman, 419 U.S. at 285)).

Because the Agency rationally concluded that Veritas’s responses warranted only a weakness, the

Court will not wade into the minutiae of the evaluation of a technical proposal. Off. Design, 951

F.3d at 1373; E.W. Bliss, 77 F.3d at 449 (noting that “a court will not second guess” certain matters,

such as “technical ratings . . . , which involve discretionary determinations of procurement

officials”).

b) Task 11 is an Immaterial Requirement.

Even if DevTech could establish that Veritas’s response to Task 11 was insufficient, it

cannot show that each subtask of Task 11 was material. A “defect or variation is immaterial when

the effect on price, quantity, quality, or delivery is negligible when contrasted with the total cost

or scope of the supplies or services being acquired.” Oak Grove, 116 F.4th at 1379 (quoting FAR

14.405). Indeed, for a term to be material, it must serve a substantive purpose. Superior Optical,

173 Fed. Cl. at 254 (quoting DigiFlight, 150 Fed. Cl. at 657); see ManTech Advanced, 141 Fed.

Cl. at 508 (quoting Bus. Integra, 116 Fed. Cl. at 335). “Whether a requirement serves a substantive

purpose, though, is for the agency to decide — not this Court.” Superior Optical, 173 Fed. Cl. at

254.

The Agency’s independent government cost estimate (IGCE), included in AR Tab 41,

illustrates that Task 11 is not material. AR Tab 41 (sheet: IGCE). The Agency estimated that

personnel from each labor category included in the Solicitation would only spend four total hours

on Task 11 in the Base Period. Id. Those four hours pale in comparison to the overall estimated

39 1,761 hours that the Agency expected the Research Analyst/Advisor (RAA) and TA

Specialist/Research Analyst (TA/RA) positions to spend on the project in the Base Period. Id.

This means that the Agency estimated the RAA and TA/RA positions spending 0.2% of their time

on Task 11’s security tasks. Similarly, the Agency estimated that the Project Manager and Project

Assistant would respectively spend 760 and 710 hours on the project during the Base Period, but

still only estimated those roles spending four hours on Task 11. Id. This is roughly 0.5% of the

total estimated hours personnel in these positions would spend on the entire project during the

Base Period. Beyond the Base Period, the IGCE maintained the same four-hour estimate for all

roles in Option Periods One and Two along with similar overall time estimates for the roles. Id.

The IGCE did not provide estimates for Base Periods Three and Four. Id. Further, Task 11 had

the fewest allocated hours of any other task, illustrating that it was immaterial. See id.

The hours the Agency allocated to Task 11 in the IGCE undermines DevTech’s contention

that Task 11 is material. See DevTech MJAR at 23–26. The limited number of hours that the

Agency expected contractors to spend on Task 11 indicates that the Agency did not think it served

a substantive purpose. See Superior Optical, 173 Fed. Cl. at 254 (“Whether a requirement serves

a substantive purpose, though, is for the agency to decide — not this Court.”). Given the minor,

estimated percentages of time that the Agency thought personnel would spend on Task 11—less

than any other task—the effect of Task 11 “is negligible when contrasted with the total cost or

scope of the supplies or services being acquired.” Oak Grove, 116 F.4th at 1379 (quoting FAR

14.405); AR Tab 41 (sheet: IGCE).

Consistent with the miniscule time that the Agency estimated contractors would spend on

Task 11, the tasks and subtasks described in Task 11 do not appear to be substantive or material

40 tasks. Certain subtasks appear so non-substantive that formulating an appropriate response would

be difficult. For example:

• Task 11, subtask 1.a: “Access (Physical or Logical) to Government Information: A Contractor (and/or any subcontractor) employee will have or will be given the ability to have, routine physical (entry) or logical (electronic) access to government information.” AR427.

• Task 11, subtask 1.b: “Operate a Federal System Containing Information: A Contractor (and/or any subcontractor) will operate a federal system and information technology containing data that supports the HHS mission. In addition to the Federal Acquisition Regulation (FAR) Subpart 2.1 definition of “information technology” (IT), the term as used in this section includes computers, ancillary equipment (including imaging peripherals, input, output, and storage devices necessary for security and surveillance), peripheral equipment designed to be controlled by the central processing unit of a computer, software, firmware and similar procedures, services (including support services), and related resources.” AR428.

• Task 11, subtask 13: “The Government will provide laptops. A total of ten (10) laptops will be issued to the contractor and will be tracked with SOW Attachment A. The Government will pay for shipping of laptops to the contractor and the contractor shall pay for shipping of laptops to return to the Government.” AR433– 34.

When asked at oral argument what would be a sufficient response to some of these general

subtasks, DevTech’s counsel could not provide a specific answer. OA Tr. 44:15–46:7. Instead,

he noted that the Court “identified [a subtask] that may not be as material as others.” Id. at 45:23–

46:7. The non-substantive nature of these subtasks supports a finding that they are not material

because they are “negligible when contrasted with the total . . . scope” of the Solicitation. Oak

Grove, 116 F.4th at 1379 (quoting FAR 14.405); see also E.W. Bliss, 77 F.3d at 448–49 (“[W]here

a defect in a bid is trivial or a mere formality, not material, the bid is not required to be rejected

out of hand.” (quoting M.W. Kellogg, 10 Cl. Ct. at 26)).

c) DevTech Cannot Establish Prejudice Related to Task 11.

Even if Task 11 was a material solicitation requirement and DevTech could establish that

Veritas failed to respond to it, DevTech cannot establish prejudice because DevTech’s own

41 responses to Task 11 would also be insufficient. See AR665–67. DevTech contends that merely

acknowledging that a task is required does not satisfy—fully or partially—the requirements of the

Solicitation. DevTech MJAR at 25. But DevTech’s own responses to Task 11 do exactly that.

For example, under subtask 1, “Applicability,” which is reproduced above, the Solicitation

included two subtasks, “Access (Physical or Logical) to Government Information” and “Operate

a Federal System Containing Information.” AR427–28. In response to these two subtasks,

DevTech noted that

AR665. DevTech’s responses to other tasks are similarly short and rife with

generalities. See AR665–67 (DevTech response to Task 11); compare AR428 (requirements for

subtask 2 with four sub-subtasks and three sub-sub-subtasks), with AR665

; see also Veritas

Resp. MJAR at 4 (“DevTech’s proposal for Task 11 is long on words and short on substance.”).

Thus, DevTech cannot establish prejudice because, to the extent the Agency committed error by

accepting what Veritas contends is an insufficient response, DevTech benefitted from the same

error. DigiFlight, Inc. v. United States, 165 Fed. Cl. 588, 606 (2023); see also G4S Secure

Integration LLC v. United States, No. 21-1817C, 2022 WL 211023, at *8 (Fed. Cl. Jan. 24, 2022)

(“There has been no prejudice when a bid protestor benefited from the same potentially unlawful

discretion from which the awardee benefited.”), appeal dismissed, No. 22-1513, 2023 WL 316142

(Fed. Cir. Jan. 19, 2023); VS2, LLC v. United States, 155 Fed. Cl. 738, 768 (2021) (“[Protestor]

42 cannot now complain about [awardee and agency’s] interpretation of the Solicitation when

[protestor] relied upon the very same interpretation when preparing its proposal.”).

4. DevTech’s Arguments Related to Veritas’s Proposed Project Manager Fail.

DevTech next asserts that the Agency erred by assigning Veritas a strength under Factor 3,

Key Personnel, because Veritas’s proposed project manager purportedly lacks the experience

required by the Solicitation. DevTech MJAR at 26–27. The Solicitation required a “Project

Manager” with “[e]ight years general experience [and] 6 years project management experience.”

AR385. Veritas proposed Jennifer C. Peters for the position. AR1660; see AR1666–69 (Ms.

Peters’s resume). Ms. Peters has over 25 years of experience in public health—including with

PEPFAR—in 22 countries and has “led or participated in more than ten USAID evaluations.”

AR1666. DevTech’s lone challenge to Ms. Peters’s qualifications is that, despite her 25 years of

experience, she lacks six years of project management experience. DevTech Resp. MJAR at 18.

The Court finds that Veritas’s proposed project manager met the minimum qualifications

required by the Solicitation. Further, even if the Agency erred in its determination that Veritas’s

project manager was qualified, DevTech cannot establish prejudice because its proposed project

manager suffers from the same purported deficiencies—if not more—that DevTech argues renders

Veritas’s project manager unqualified.

a) The Agency Rationally Concluded that Veritas’s Project Manager was Qualified.

Veritas’s proposed project manager meets the Solicitation’s requirements. DevTech only

challenges whether Ms. Peters has the requisite six years of project management experience.

AR385; DevTech Resp. MJAR at 18. DevTech contends that Ms. Peters’s resume “does not show

any project management experience.” DevTech MJAR at 26–27; Sur-Reply at 2–3. The Agency

and Veritas disagree with DevTech’s characterization and contend that the Court should not second

43 guess the Agency’s discretionary judgment in its review of technical proposals. Agency MJAR at

31; Veritas MJAR at 24, 26. Indeed, DevTech’s own Sur-Reply seems to agree that the Court

should not disturb the Agency’s determination concerning whether a project manager has the

requisite experience. See Sur-Reply at 3 (“This is also not an area where the agency reasonably

could exercise discretion—i.e., where reasonable minds could differ.”). Ultimately, upon review

of the record and the parties’ arguments, the Court finds that the Agency reasonably determined

that Ms. Peters has the requisite six years of project management experience.

As noted, the question before the Court is whether the Agency had a rational basis to find

that Ms. Peters had the requisite project management experience as required by the Solicitation.

While the Solicitation fails to define the term “project management experience,” the Solicitation

describes the role of Project Manager as follows:

Serves as the project manager for a large, complex task order (or a group of task orders) and shall work with the Government Contracting Officer, the contract-level Contracting Officer’s Representative (COR), the task order-level COR(s), government management personnel and customer agency representatives. This individual is responsible for the overall management of the specific task order(s) and ensuring that the solutions and schedules in the task order are implemented in a timely manner. Responsible for the overall quality of the tasks' deliverables. Manage subcontracting agreements in accordance with government terms and requirements.

AR385. Beyond six years of project management experience, the Solicitation requires that the

candidate:

Demonstrate strong diplomatic skills to ensure effective and respectful collaboration across diverse cultural contexts and have expertise in International Public Health, infectious disease, capacity building, health equity, strategic planning, communications, and/or global HIV/AIDS programs – including PEPFAR and the Global Fund[.]

Veritas argues that the Solicitation reserved the determination of what qualifies as “project

management experience” to the Agency’s technical evaluators. Veritas MJAR at 24. Though

44 DevTech asserts that Ms. Peters lacks the requisite six years of experience, it fails to clearly define

project management experience. See DevTech MJAR at 26–27; DevTech Resp. MJAR at 18–19;

Sur-Reply at 2; OA Tr. 26:13–22. Based on its statements in multiple filings and at oral argument,

DevTech seems to assert that a project manager is the Agency’s go-to contact for contract

deliverables who would be expected supervise other personnel and manage complex contracts.

See DevTech MJAR at 26–27; DevTech Resp. MJAR at 18–19; Sur-Reply at 2; OA Tr. 26:13–22.

As key personnel are part of the Solicitation’s Technical Proposal, the Court owes

deference to Agency’s personnel determinations. AR383–84; see Off. Design, 951 F.3d at 1373;

see also Galen Med., 369 F.3d at 1339 (“[T]he technical evaluation [is] an inherently judgmental

process requiring deference.”); E.W. Bliss, 77 F.3d at 449 (noting that “a court will not second

guess” certain matters, such as “technical ratings . . . , which involve discretionary determinations

of procurement officials”). DevTech bears the heavy burden of proving that the Agency’s

conclusion lacked any rational basis. Centech, 554 F.3d at 1037 (quoting Impresa, 238 F.3d at

1332). DevTech cannot carry this heavy burden to show that the Agency’s decision was arbitrary

and capricious. Id.

The Agency reasonably determined that Ms. Peters was qualified. First, based on Ms.

Peters’s resume entries, the Agency was well within its discretion to find that Ms. Peters was

qualified. Second, the Agency fully considered and documented its determination that Ms. Peters

was qualified through its TEP and final report.

After reviewing Ms. Peters’s resume, the Court finds that the Agency rationally could have

credited Ms. Peters with the requisite six years of project management experience. Ms. Peters’s

resume indicates that she held multiple team lead positions from February 2016 through November

2018. AR1668. Though DevTech contends that team lead positions do not count as project

45 manager positions, the Court finds that the Agency could reasonably credit Ms. Peters’s time spent

as a team lead as having project management experience, given that she would have been

overseeing technical experts. DevTech Resp. MJAR at 17–18 (explaining that a team lead

oversees other technical experts). She further was a lead technical writer from December 2016 to

October 2017. AR1668. This reasonably could have entailed managing other technical writers.

Thus, the Agency could rationally have credited Ms. Peters with project management experience

for this role. Ms. Peters also served as a Strategic Solutions/Technical Advisor for over three years

from March 2019 until September 2022. AR1667. That role involved “[s]upport for PEPFAR and

USAID investments in South Africa’s” programs, “[t]echnical assistance in . . . strategic planning[]

and knowledge management,” and “[s]upport for HIV & TB programs at [multiple] levels in South

Africa and Mozambique.” Id. Ms. Peters’s resume also indicates that she served as a Lead

Technical Writer/Editor. Id. The entry does not include dates, but notes that Ms. Peters’s worked

on “[s]trategic design, drafting, and editing of concept notes, technical proposals, and

programmatic reports” and “[c]ollaborat[ed] with URC and partners for various USAID

activities.” Id. This, too—namely the collaboration across agencies and management of proposals

and program reports—may well fit within the project manager’s required skills. AR385; AR1667.

These roles, which rationally could be credited as project management experience, collectively

span more than the six-year minimum required in the Solicitation. 10 AR1667–68; see also

10 In total, the Court counts 75 months of experience on Ms. Peters’s resume that could reasonably qualify as project management experience. See AR1667–68. These roles include (i) strategic solutions/technical advisor (43 months); (ii) team leader at MSI (5 months in 2018); (iii) team leader at Khulisa (6 months); (iv) lead technical writer (11 months); (v) team leader at MSI (5 months in 2017); and (vi) team leader at GH Pro (5 months). This exceeds the minimum of 72 months—six years—of project management experience required by the Solicitation. AR385. This does not include her most recent position as a “Lead Technical Writer/Editor,” as the resume does not include any dates for that position. AR1667.

46 Honeywell, 870 F.2d at 648 (“If the court finds a reasonable basis for the 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.”).

The Solicitation also indicates that the Agency may have had a more holistic view of the

project manager requirements. Indeed, beyond the minimum years of general and project

management experience, the Solicitation requires that the project manager have “strong diplomatic

skills,” the ability to “respectful[ly] collaborat[e] across diverse cultural contexts,” and experience

in public health, specifically with HIV/AIDS programs. AR385; see AR394. Therefore, while

DevTech correctly asserts that, in general, a project manager oversees a project, the Solicitation

could reasonably support a broader view of project management, as evidenced by the position

requirements. DevTech Resp. MJAR at 18–19; AR385. More importantly, in this situation, the

Agency, not the Court, should make this determination. See Oak Grove, 116 F.4th at 1374, 1380;

Insight Pub., 161 Fed. Cl. at 797.

Taking this broader, more holistic view of the requirements, Ms. Peters is certainly

qualified under the terms of the Solicitation. See OA Tr. 103:17–104:11 (Agency counsel agreeing

that the project manager requirements are “a set of holistic criteria for the [A]gency to consider”).

Indeed, the Solicitation requires that the Project Manager “[d]emonstrate strong diplomatic

skills . . . and have expertise in International Public Health.” AR385. Ms. Peters has extensive

experience in the public health and HIV/AIDS space, and has collaborated, led, or worked on large

teams, all requiring diplomatic skills. AR1666–69. The summary of her qualifications begins by

explaining that she has “[o]ver twenty-five years of experience in public health,” including

“[t]echnical expertise,” “evidence-based decision-making,” and “strategic planning.” AR1666.

She has “led or participated in more than ten USAID evaluations.” Id. Her resume indicates four

47 positions with experience relevant to PEPFAR, AIDS, or the Global Fund, all experience

specifically sought after by the Agency through the Solicitation. AR1667–68; AR385. Ms.

Peters’s other roles also reference public health initiatives. AR1666–69. Ms. Peters has

experience “[m]anag[ing] the preparation and delivery of final reports for project completion,”

“[l]ead[ing] in evaluations for major health programs,” and “collaborat[ing] effectively” with

various parties. AR1666–67.

Finally, the Agency appropriately considered Ms. Peters’s experience, as evinced in the

Agency’s Consolidated Evaluation Report. The Report reflected that Veritas was awarded four

strengths and no weaknesses, significant weaknesses, or deficiencies. AR2098. The Report also

recognized that “[a]ll key personnel meet and exceed the minimum required experience, including

global health and HIV/PEPFAR experience.” Id. (emphasis added). Indeed, Veritas received an

“Outstanding” rating for its personnel. Id. This not only demonstrates that the Agency viewed

PEPFAR experience as important, consistent with the Solicitation, but it also demonstrates that

the Agency concluded that Veritas’s personnel possessed the required experience. DevTech

argues that the Agency “overlooked this key shortcoming” in Veritas’s proposal, and, for the first

time at oral argument, claims that the Agency did not provide any rationale for its decision.

DevTech MJAR at 29; OA Tr. 33:16–23. This argument fails, however, because the Agency (i) is

entitled to a presumption of regularity, (ii) need not document all of its findings, and (iii) properly

considered—and found sufficient—Veritas’s project manager’s experience. AR2098; DynCorp

Int’l, 10 F.4th at 1313 (quoting Impresa, 238 F.3d at 1337); Impresa, 238 F.3d at 1338 (citing

Bowen, 476 U.S. at 626–27); see also Advanced Data, 216 F.3d at 1058 (noting that the “highly

deferential” arbitrary and capricious “standard requires a reviewing court to sustain an agency

48 action evincing rational reasoning and consideration of relevant factors.” (citing Bowman, 419

U.S. at 285)).

The relevant question for this Court is not whether it would have hired Ms. Peters as the

project manager. Instead, the Court must determine whether the Agency had a rational basis for

making its decision. Harmonia Holdings, 999 F.3d at 1408 (noting that the Court’s “role in

reviewing procurement decisions, . . . is not to evaluate the offerors’ proposals anew or to substitute

[its] judgment for that of the agency”); Honeywell, 870 F.2d at 648 (“If the court finds a reasonable

basis for the 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.”). Here, based on Ms. Peters’s resume and the requirements in the

Solicitation, and, given the deference the Court owes to agency determinations regarding a

technical approach, the Court cannot say that the Agency’s action was arbitrary and capricious.

See Oak Grove, 116 F.4th at 1374, 1380; E.W. Bliss, 77 F.3d at 449 (noting that “a court will not

second guess” certain matters, such as “technical ratings . . . , which involve discretionary

determinations of procurement officials”); Insight Pub., 161 Fed. Cl. at 797.

b) DevTech Cannot Establish Prejudice Arising Out of the Agency’s Evaluation of Veritas’s Project Manager.

DevTech cannot establish prejudice related to the Agency’s evaluation of Veritas’s project

manager because its own proposed project manager lacks the qualifications required by the

Solicitation. At oral argument, after the Court raised issues about DevTech’s project manager’s

own requirements, DevTech requested a Sur-Reply to address the issues. OA Tr. 127:15–130:21.

The Court specifically instructed DevTech that the Sur-Reply must be consistent with and “operate

within th[e] constraints” of DevTech’s statements at oral argument. Id. at 133:4–134:13. In its

Sur-Reply, DevTech argues that any focus on its own project manager is a post-hoc rationalization.

49 Sur-Reply at 4. DevTech asserts that because the Agency evaluated its project manager and gave

the project manager a strength, the Court should not consider the qualifications of its project

manager. Id. This argument is squarely inconsistent with how DevTech contends the Court should

review the Agency’s determinations about Veritas’s project manager. DevTech claims that the

Agency’s evaluation of Veritas’s project manager position is “not an area where the agency

reasonably could exercise discretion,” while also positing that the Agency’s assignment of a

strength to DevTech’s proposed project manager is entitled to deference. Id. at 3–4; see also E.W.

Bliss Co., 77 F.3d at 449 (explaining that “a court will not second guess” certain matters, such as

“technical ratings . . . , which involve discretionary determinations of procurement officials”). In

essence, DevTech asks the Court to review Veritas’s proposed project manager without deference

to the Agency’s finding that Ms. Peters is qualified, but then turns around and tells the Court it

must defer to the Agency’s finding that DevTech’s own project manager, , was

qualified. DevTech cannot have it both ways—what is good for the goose must be good for the

gander.

The Solicitation included certain qualifications for the project manager, including (i) a

bachelor’s degree from a relevant discipline, (ii) eight years general experience, (iii) six years of

project management experience, (iv) demonstrated diplomatic and collaboration skills, and

(v) experience in public health including HIV/AIDS, PEPFAR, and Global Fund. AR385. At oral

argument, counsel for DevTech unequivocally agreed that each of these five requirements must be

met by a project management candidate. OA Tr. 27:6–28:6 (DEVTECH COUNSEL: “I think

they’re all material and they’re minimum requirements. Absolutely.”). DevTech’s proposed

project manager, , plainly lacks at least three of these five requirements: eight years

of general experience, six years of project management experience, and experience in public

50 health, including HIV/AIDS, PEPFAR, and Global Fund. Thus, DevTech cannot establish

prejudice as it relates to the project manager.

First, lacks eight years of general experience. To meet this eight-year

requirement, the project manager must have 96 months of general experience.

resume indicates the following positions for the following durations: evaluation specialist (17

months) 11; technical program manager (16 months); senior program associate (31 months);

program coordinator (23 months); intern (5 months). See AR676.8–.9. This experience totals 92

months, four months shy of the minimum.12 See id.

Second, lacks six years of project management experience, which is precisely

why DevTech argues Veritas’s project manager does not meet the Solicitation’s requirements. To

meet this six-year minimum, a candidate must possess 72 months of project management

experience. The Solicitation did not define “project management experience.” AR385. All parties

agree that job title alone does not establish project management experience. DevTech Resp. MJAR

at 17; Agency MJAR at 31; Veritas MJAR at 24. Counsel for DevTech agreed at oral argument

that experience as an intern, a program coordinator, and an evaluation specialist

11 resume indicates that this role began in May 2023 and continued “to present.” AR676.8. The Court calculated the position through September 2024, when DevTech submitted its proposal, as that is the date at which the Agency would have been calculating experience. 12 The Court notes that this total includes a five-month internship and counts overlapping months of experience twice. For example, resume shows that he worked as a senior program associate from August 2019 until February 2022 and as a technical program manager from February 2022 until May 2023. The 92-month total includes February 2022 as a month of experience in both positions. The Court conservatively counts this month twice given the lack of specificity regarding the exact start and end dates. Even with this conservative approach, fails to meet the requisite eight years of overall experience.

51 would not satisfy its own definition of project management experience. OA Tr. 31:21–32:12. The

Court specifically inquired about each of these roles:

THE COURT: Is a program coordinator a program manager?

DEVTECH COUNSEL: It would be like a junior level . . . but it wouldn’t be a manager.

THE COURT: Okay. And an intern wouldn’t be a project manager, obviously.

DEVTECH COUNSEL: No, ma’am.

THE COURT: Okay. And what about a job where someone provides technical leadership and managerial support to develop evaluation and research frameworks, like an evaluation specialist? That’s not a project manager either.

DEVTECH COUNSEL: Well, a manager position is certainly getting closer to that area. But, again, a program is all the tasks, not a single task.

Id. (emphasis added); see also AR676.8 (including in the description for

“Evaluation Specialist” position, “[p]rovides technical leadership and managerial support to

develop evaluation and research frameworks . . .”). Accordingly, DevTech’s counsel agrees that

time as an intern, a project coordinator, and as an evaluation specialist do not

satisfy its own definition of project management experience. 13 This leaves only

technical program manager (16 months) and senior program associate (31 months) as potentially

qualifying project management experience, totaling only 47 months. See AR676.8–.9. This falls

far short of the 72 required months of project management experience. Even if the Court credited

one of the two positions that DevTech’s counsel discredited—the program coordinator (22

13 In its Sur-Reply, DevTech argues that experience as an evaluation specialist and program coordinator included project management functions. Sur-Reply at 5–6. This not only conflicts with DevTech’s counsel’s statements at oral argument, but also conflicts with this Court’s instruction that DevTech would be held to the representations made at oral argument. OA Tr. 31:21–32:12, 133:12–21.

52 months) or evaluation specialist positions (17 months)— would still fall short of the

72-month threshold. OA Tr. 31:21–32:12; AR676.8–.9; see also supra notes 12, 13.

Third, lacks global health experience, particularly experience with PEPFAR

and the Global Fund. See AR676.8–.9. When asked at oral argument to identify

experience with public health, another requirement of the Solicitation, DevTech could not do so.

OA Tr. 28:7–29:20; AR385. Instead, DevTech argued that this issue was not properly briefed.

See OA Tr. 127:15–130:21. The issue of DevTech’s project manager’s qualifications, however,

was raised by Veritas in its Responsive MJAR and at oral argument by the Agency in response to

the Court’s questions. Veritas Resp. MJAR at 5; OA Tr. 129:7–9. Even with the Court’s leave to

brief the project manager issue in a post-argument Sur-Reply, DevTech failed to point to any public

health experience on resume. See OA Tr. 133:4–134:13; Sur-Reply at 1–6. Nor

could it, as resume shows no Global Fund or PEPFAR experience. See AR676.8–

.9. Instead, DevTech used its Sur-Reply to challenge the requirement as “legally irrelevant,”

contending that “[t]he Solicitation does not require the Project Manager to have any experience in

public health.” Sur-Reply at 5. This, however, directly conflicts with DevTech’s statement at oral

argument that each of the requirements in the solicitation for the project manager must be met.

OA Tr. 27:6–28:6 (DEVTECH COUNSEL: “Yes, those are minimum requirements. . . . I think

they’re all material and they’re minimum requirements. Absolutely.”).

Accepting DevTech’s positions that each of the qualifications listed in the Solicitation must

be met and its definition of project management experience as true, DevTech cannot establish

prejudice because its proposed project manager fails under its own definitions. See DigiFlight,

165 Fed. Cl. at 606. Thus, to the extent the Agency’s acceptance of Veritas’s proposed project

manager was an error, DevTech benefited from the same error as Veritas and cannot now claim

53 prejudice. Id.; see also G4S Secure, 2022 WL 211023, at *8 (“There has been no prejudice when

a bid protestor benefited from the same potentially unlawful discretion from which the awardee

benefited.”); VS2, 155 Fed. Cl. at 768 (“[Protestor] cannot now complain about [awardee and

agency’s] interpretation of the Solicitation when [protestor] relied upon the very same

interpretation when preparing its proposal.”).

B. Veritas Only Proposed Services Included in Its GSA MAS Price List.

DevTech contends that Veritas’s proposal is ineligible for award because it proposed

services not included in its GSA MAS price list. DevTech MJAR at 27–31. More specifically, it

contends that the personnel proposed for three specific positions, RAA, TA/RA, and SSA, were

improperly “mapped” 14 to the “Analyst” labor category on Veritas’s GSA MAS price list. Id.;

AR386–88, AR1752. Because Veritas properly mapped the positions required by the Solicitation

to permissible labor categories in its GSA MAS price list, it proposed services included in its GSA

MAS price list. Regardless, DevTech cannot establish prejudice as its proposal suffered from a

similar issue.

Under an MAS contract, the Agency may only procure services included in an offeror’s

MAS price list. See HomeSource Real Est. Asset Servs., Inc. v. United States, 94 Fed. Cl. 466, 486

(2010), aff’d, 418 F. App’x 922 (Fed. Cir. 2011). If an agency seeks to procure services not

included on a bidder’s MAS price list, it must do so with a full procurement process. See FAR

8.402(f)(1), 8.404(a); Kearney, 2024 WL 2209767, at *11. Thus, if the Agency purchases services

not included on Veritas’s MAS price list, the procurement would be invalid. There is, however,

“no ‘prohibition on the government’s common sense identification of overlapping, related labor

14 In this context, “mapping” references the identification of which labor category an offeror’s MAS contract will be used to fill each role specified in the Solicitation. See Kearney & Co., P.C. v. United States, No. 24-162, 2024 WL 2209767, at *6 n.9 (Fed. Cl. Apr. 30, 2024).

54 categories.’” Kearney, 2024 WL 2209767, at *6 (quoting Career Training Concepts, Inc. v.

United States, 83 Fed. Cl. 215, 227 (2008)). Given the generality of GSA MAS contracts, the

“default rule” is that offerors can map the work specified in the Solicitation to their own labor

categories. Id. As such, “differences in job titles and descriptions between the [Solicitation] and

the [labor categories] are not dispositive.” Id. (citing Eagle Techs., Inc. v. United States, 163 Fed.

Cl. 692, 703 (2022)); HomeSource, 94 Fed. Cl. at 486. Rather, as DevTech acknowledges, the

correct inquiry “[w]hen evaluating the sufficiency of labor category mapping” is whether “the

proposed labor category will satisfy the contract requirements.” DevTech MJAR at 28 (citing

HomeSource, 94 Fed. Cl. at 486–87).

DevTech specifically contends that (i) Veritas’s proposed “Analyst” labor category lacks

the minimum years of experience required by the Solicitation, and (ii) Veritas’s proposed labor

category, “Analyst” is a position for “generalist support staff,” not for specialized positions. See

DevTech MJAR at 27–31. Veritas’s analyst labor category requires at least four years of

experience and a bachelor’s degree. AR1752. Each of the RAA, TA/RA, and SSA positions

require at least six years of experience. AR386–88. The RAA and TA/RA positions require those

six years of experience be “within HIV care setting, Public health programmatic and policy

experience,” while the SSA position requires “6 years basic to intermediate knowledge of

evaluation design.” Id.

Veritas properly mapped its analyst labor category to the RAA, TA/RA, and SSA positions,

despite the difference in the minimum years of experience. Mapping to a labor category that

requires a lower minimum experience than required by the solicitation is proper unless (i) the

Solicitation requires an exact match or (ii) the offeror fails to commit to fulfilling the mandatory

requirements of the Solicitation. See Eagle Techs., 163 Fed. Cl. at 703; Kearney, 2024 WL

55 2209767, at *6. Here, the Solicitation did not require an exact match and Veritas’s proposal

committed to fulfilling the Solicitation’s mandatory requirements.

First, all parties agree that the labor category and proposed positions need not be an exact

match. See DevTech Resp. MJAR at 23 n.4; Agency Resp. MJAR at 20–21; Veritas MJAR at 27–

28. An exact match would only be required where a solicitation mandated such specificity. See

Kearney, 2024 WL 2209767, at *5–6. The Solicitation here did not require an exact match

between the labor categories and the required positions. Instead, it required offerors “identify the

GSA schedule and contract utilized, the schedule price, labor categories price used[,] any discounts

proposed[,] and any other relevant pricing information.” AR390. It further required that offerors

should include “the labor category(ies) to be utilized for this effort (per task area), a description of

the skills and experience per category, [] hourly rate(s) proposed, [] any discounts[,]

[and]. . . provide labor categories and labor rates for all Task Areas.” AR390–91. Veritas’s

proposal did just this. See AR1732–33; AR1751–60. The Agency’s evaluation reflected its

satisfaction with Veritas’s proposal when it assigned “Outstanding” ratings for the personnel

subfactor and the Technical Proposal overall. AR2096; AR2098.

Veritas’s proposal also “commit[ted] to fulfilling the mandatory requirements of the

[Solicitation].” Kearney, 2024 WL 2209767, at *6. It explained that Veritas “has assembled a

complete team . . . who are highly qualified and experienced . . . . Their work histories cover all

tasks identified in the SOW.” AR1657. Veritas notes that Section 5 of its price volume,

“demonstrate[s] the experience of [its] proposed staff in each of the labor categories identified.”

AR1658. The experience is outlined by the biographies and resumes for proposed personnel. Id.

The biographies and resumes show that Veritas’s proposed staff’s experience far exceed the four-

and six-year requirements of the analyst labor category and Solicitation. AR1661; AR1680–83;

56 AR1684–85; AR1692–94. Indeed, Veritas’s proposed staff for the RAA, TA/RA, or SSA

positions have over 15, 24, and 30 years of experience respectively. AR1680–83; AR1684–85;

AR1692–94. Accordingly, just as in Kearney, where the awardee illustrated its commitment to

meeting the Solicitation’s minimum requirements by noting that the it “evaluates all personnel on

a case-by-case basis to ensure that each employee meets or exceeds the minimum requirements of

the specific labor categories,” Veritas has similarly illustrated its commitment through its proposal

and proposed staff, each of whom have well more than the six-years of minimum experience.

Kearney, 2024 WL 2209767, at *6; AR1660–61; AR1680–83; AR1684–85; AR1692–94.

Second, DevTech’s argument that Veritas’s analyst position is meant for support staff, not

for specialized positions like the RAA, TA/RA, or SSA positions is unavailing. See DevTech

MJAR at 29; DevTech Resp. MJAR at 22. As DevTech recognizes, the key question when

evaluating labor category mapping is “if the proposed labor category will satisfy the contract

requirements.” DevTech MJAR at 28 (citing HomeSource, 94 Fed. Cl. at 486–87). As discussed

above, Veritas signaled its commitment to complying with the six-year requirement by proposing

staff all with well over six years of experience. AR1660–61; AR1680–83; AR1684–85; AR1692–

94. Further, the Agency reviewed the proposed mapping and staffing, and nothing in the record

indicates that it thought the proposed staff could not satisfy the contract requirements. The

question of whether the Agency thought that “the proposed labor category will satisfy the contract

requirements,” is part of the Agency’s technical evaluation. DevTech MJAR at 28 (citing

HomeSource, 94 Fed. Cl. at 486–87); AR1680–85 (submitting key personnel with Technical

Proposal Volume); AR1692–94 (same); AR2071–72 (evaluating DevTech key personnel in

technical evaluation); AR2098 (evaluating Veritas key personnel in technical evaluation). As

57 such, the Agency is entitled to deference on this discretionary question. Off. Design, 951 F.3d at

1373; E.W. Bliss, 77 F.3d at 449.

Finally, even if DevTech is correct that Agency erred in allowing Veritas’s labor category

mapping, DevTech cannot establish prejudice because its proposal suffers from a similar infirmity.

The “Mid-Level Analyst” category that DevTech maps onto the SSA position only requires a

minimum of three years of experience. AR700; AR712. This is the same error that DevTech

contends renders Veritas’s proposal ineligible for award. See DevTech MJAR at 27–31.

Accordingly, even if Veritas’s proposal was deficient for an error in mapping, DevTech could not

establish prejudice because DevTech’s proposal suffered from similar improprieties. See

DigiFlight, 165 Fed. Cl. at 606 (“There has been no prejudice when a bid protestor benefited from

the same potentially unlawful discretion from which the awardee benefited.” (quoting G4S Secure,

2022 WL 211023, at *8)).

II. The Agency’s Actions Related to DevTech’s Proposal Were Not Arbitrary and Capricious.

DevTech alleges that the Agency’s (i) failure to complete a professional compensation

review and (ii) actions related to DevTech’s revised VPAT Proposal, including declining to

evaluate the revised VPAT proposals and not conducting discussions related to DevTech’s price,

were arbitrary and capricious. See DevTech MJAR at 31–38; DevTech Resp. MJAR at 24–31.

Neither argument succeeds. DevTech cannot establish that it was prejudiced by the Agency’s

failure to evaluate professional compensation pursuant to FAR 52.222-46. Further, the Agency’s

actions related to DevTech’s VPAT Proposal were not arbitrary and capricious.

A. DevTech Cannot Establish That It Was Prejudiced by the Agency’s Failure to Evaluate Professional Compensation under FAR 52.222-46.

DevTech contends that FAR 52.222-46, which requires an agency to evaluate professional

compensation plans from offerors, applies to the Solicitation here. See DevTech MJAR at 31. As

58 such, it argues that the Agency acted arbitrarily and capriciously when it did not evaluate

professional compensation for any proposals. Id. This compensation analysis is “a sort of targeted

form of price realism analysis which ‘evaluates whether a proposed compensation is too low.’”

ENGlobal Gov’t Servs., Inc. v. United States, 159 Fed. Cl. 744, 768 (2022) (quoting Eskridge &

Assocs. v. United States, 955 F.3d 1339, 1346 (Fed. Cir. 2020)).

Even though the Solicitation does not expressly reference FAR 52.222-46, DevTech claims

that the provision nevertheless applies because it is incorporated into the Solicitation by the terms

of DevTech’s and Veritas’s MAS contracts through the Ordering clause, FAR 52.216-18.

DevTech MJAR at 31–33; FAR 52.216-18 (noting that orders are subject to the terms and

conditions of the MAS contract); see also Am. Compl., Ex. A (GSA list of contract clauses

applicable to Veritas’s MAS contract); Am. Compl., Ex. B (GSA list of contract clauses applicable

to DevTech’s MAS contract). The Agency and Veritas contend that FAR 52.222-46 does not

apply because the procurement at issue here is a FAR 8.4 procurement, and FAR 52.222-46 is

limited to FAR 15 procurements. See Agency MJAR at 37–39; Agency Resp. MJAR at 24–25;

Veritas Resp. MJAR at 6–7. Further, they argue that the current Solicitation does not meet the

requirements of FAR 22.1103, which directs when FAR 52.222-46 is applicable to a contract. See

Agency MJAR at 38–39; Agency Resp. MJAR at 24–25; Veritas Resp. MJAR at 6–7. Finally, the

Agency and Veritas argue that even if FAR 52.222-46 did apply, DevTech could not show

prejudice and waived the argument by failing to bring a pre-award challenge. Agency MJAR at

39–40; Agency Resp. MJAR at 27–28; Veritas MJAR at 35 n.4, 36.

59 The Court agrees with the Agency and Veritas—DevTech is unable to establish that it was

prejudiced by the Agency’s failure to evaluate professional compensation under the provision. 15

DevTech cannot establish prejudice here “because it benefited from the same alleged error as the

awardee did.” DigiFlight, 165 Fed. Cl. at 606; see also G4S Secure, 2022 WL 211023, at *8; VS2,

155 Fed. Cl. at 767–69. In DigiFlight, which, like this case, concerned a FAR Subpart 8.4

procurement and a similar dispute about the applicability of FAR 52.222-46, the court concluded

that the protestor lacked standing to challenge whether the agency complied with FAR 52.222-46

because it failed to allege the elements of FAR 22.1103. 165 Fed. Cl. at 604–06; see also supra

note 15 (explaining that DevTech failed to plead or brief the elements of FAR 22.1103). DigiFlight

continued that even if the protestor had properly pleaded its case, it still would have been unable

to establish prejudice where it, too, “did not submit a total compensation plan as would be required

by FAR 52.222-46.” 165 Fed. Cl. at 606.

DevTech cites a GAO decision to support its contention that FAR 52.222-46 should have

applied in this procurement. DevTech MJAR at 33–34 (citing Skyward IT Sols., LLC, B-421105.2,

15 Even if DevTech could show prejudice, DevTech fails to plead or argue that the requisite elements of FAR 22.1103 are met. See generally Am. Compl.; DevTech MJAR; see Agency MJAR at 38. FAR 22.1103 requires a solicitation to include FAR 52.222-46 for (1) negotiated contracts (2) when the contract amount is expected to exceed $750,000 and (3) services are to be provided which will require meaningful numbers of professional employees. FAR 22.1103. Thus, to properly bring this claim, DevTech must have pleaded or briefed these three requirements. DigiFlight, 165 Fed. Cl. at 605. While DevTech pleads that the contract amount is expected to exceed $750,000, it does not argue that this is a negotiated contract or that services requiring “a meaningful number[] of professional employees” are to be provided. FAR 22.1103; Agency MJAR at 38; Am. Compl. ¶ 205. DevTech does not respond substantively to the Agency’s and Veritas’s contentions that this is not a negotiated procurement. Agency MJAR at 38; DevTech Resp. MJAR at 25–26 (responding to contention that it lacks standing under DigiFlight without alleging that it had pleaded the relevant elements or attempting to argue that the elements are present). As such, this argument is waived and DevTech cannot argue that the elements of FAR 22.1103 are met. See Sarro & Assocs., Inc. v. United States, 152 Fed. Cl. 44, 58 (2021) (“A party’s failure to raise an argument in an opening or responsive brief constitutes waiver.”).

60 2023 CPD ¶ 103 (Comp. Gen. Apr. 27, 2023)). But there, the GAO reached a similar conclusion

as this Court—that an offeror that did not submit a total compensation plan could not be prejudiced

by an agency’s failure to evaluate compensation plans from offerors. Skyward IT Sols., 2023 CPD

¶ 103 at 11 (“Despite finding that the agency should have evaluated quotations under FAR

provision 52.222-46,” the GAO could not “conclude that the agency’s error caused . . . any

competitive prejudice”).

Even if DevTech could show a procurement error and prejudice related to FAR 52.222-46,

its claim would be considered waived under Blue & Gold. The conflict between FAR 52.222-46,

which requires a compensation plan, and the Solicitation, which did not, would have been obvious

to DevTech before the close of bidding. FAR 52.222-46; AR383–84; AR390–91. Neither the

Agency requested a total compensation plan, nor did DevTech—or any other offeror—submit one.

AR383–84; AR390–91; AR693–722. As such, if FAR 52.222-46 did apply, DevTech waived its

right to challenge this obvious conflict by failing to do so before the close of bidding. Blue &

Gold, 492 F.3d at 1313; see also DigiFlight, 165 Fed. Cl. at 605–06 (“[U]nder Blue & Gold,

Plaintiff waived any objection to a FAR § 52.222-46 violation by failing to raise the issue prior to

the close of bidding.”); K-Mar Indus., Inc. v. United States, 91 Fed. Cl. 20, 23 (2010) (“[E]ven

assuming that the Army should have amended the solicitation to include [FAR] 52.222–46, [the

protestor’s] challenge is out of time since it did not ‘object to the terms of [the] government

solicitation . . . prior to the close of the bidding process. . . .’” (quoting Blue & Gold, 492 F.3d at

1313)).

In sum, DevTech’s arguments fail because it cannot establish prejudice, and, even if it

could, its argument would be considered waived under Blue & Gold.

61 B. The Agency’s Actions Related to DevTech’s VPAT Proposal Had a Rational Basis.

DevTech asserts that the Agency conducted discussions when it requested a revised VPAT

Proposal from DevTech, therefore requiring the Agency to inform DevTech of its “excessive or

unreasonabl[y]” high price. See DevTech MJAR at 35–38. It further argues that the Agency’s

decision not to evaluate its revised VPAT Proposal was arbitrary and capricious. Id. Both

arguments fail.

1. The Agency Did Not Conduct Discussions and Had No Obligation to Inform DevTech That Its Price Was Excessive.

DevTech argues that the Agency engaged in discussions when it requested revised VPAT

Proposals. DevTech MJAR at 35–38; DevTech Resp. MJAR at 24–27. Therefore, DevTech

asserts that, after purportedly initiating discussions, the Agency should have informed DevTech

that its price was “excessive or unreasonable.” See DevTech MJAR at 35–38; DevTech Resp.

MJAR at 24–27. The Agency, however, neither conducted discussions nor was required to

disclose to DevTech that its price was unreasonable.

As an initial matter, the Agency was not required to conduct discussions. To begin,

solicitations under FAR Part 15 require discussions before an agency issues an award, but

solicitations under FAR Subpart 8.4 do not. Compare FAR Subpart 8.4 (no mention of

discussion), with FAR 15.306(d)(1) (requiring discussion); Insight Pub., 161 Fed. Cl. at 802–03

(“While FAR 15.306(d)(1) requires contracting officers to engage in ‘discussions’ with ‘each

offeror within the competitive range,’ that provision is not applicable to this Federal Supply

Schedule procurement conducted under FAR subpart 8.4.” (quoting FAR 8.404(a))). It is

undisputed that FAR Subpart 8.4 governs this Solicitation. See Am. Compl. ¶¶ 18; 165–66;

Agency MJAR at 41; OA Tr. 48:3–6, 95:14–18; see also FAR 8.404(a) (“[FAR] Parts 13 . . . , 14,

15, and 19 . . . do not apply to . . . orders placed against Federal Supply Schedules contracts.”).

62 Thus, the Agency was not required to conduct discussions. See FAR Subpart 8.4; Insight Pub.,

161 Fed. Cl. at 802; see also RELI Grp., Inc. v. United States, 174 Fed. Cl. 630, 638 (2025)

(“Because FAR 8.404(a) does not require discussions with all offerors, and because the Agency

did not elect to use FAR Part 15 procedures, the Agency was not required to hold discussions with

all offerors.”); AccelGov, LLC v. United States, 170 Fed. Cl. 508, 515–16 (2024) (“Therefore,

under the plain language of FAR Subpart 8.4, [the Agency] was not required to follow

requirements from FAR Part 15 and hold discussions.”); Distributed Sols., Inc. v. United States,

106 Fed. Cl. 1, 15 (2012), aff’d, 500 F. App’x 955 (Fed. Cir. 2013) (“[U]nder FAR Part 8, [the

agency] was under no obligation to hold discussions.”).

Next, DevTech incorrectly contends that the Agency’s request for DevTech to submit a

revised VPAT proposal constituted a discussion. See DevTech MJAR at 36. Even assuming that

FAR Part 15 applies—which it does not—the communications between the Agency and DevTech

do not constitute a discussion under the terms of Part 15. FAR Part 15 distinguishes between

“discussion” and “clarifications.” Compare FAR 15.306(d)(1) (defining discussions), with FAR

15.306(a) (defining clarifications); see Galen Med., 369 F.3d at 1332–33; Insight Pub., 161 Fed.

Cl. at 803. Discussions “are tailored to each offeror’s proposal, and must be conducted by the

contracting officer with each offeror within the competitive range.” FAR 15.306(d)(1). “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.” FAR

15.306(d)(2). As such, “‘discussions involve negotiations’ and ‘are undertaken with the intent of

allowing the offeror to revise its proposal.’” Galen Med., 369 F.3d at 1332 (quoting Info. Tech.,

316 F.3d at 1321); see also Insight Pub., 161 Fed. Cl. at 803 (noting that the “acid test for deciding

whether discussions have been held is whether it can be said that an offeror was provided the

63 opportunity to revise or modify its proposal” (quoting Davis Boat Works, Inc. v. United States,

111 Fed. Cl. 342, 353–54 (2013))); ENGlobal, 159 Fed. Cl. at 766 (collecting cases). Meanwhile,

“[c]larifications are limited exchanges, between the Government and offerors, that may occur

when award without discussions is contemplated.” FAR 15.306(a)(1); Galen Med., 369 F.3d at

1332–33. Without becoming a formal discussion, “offerors may be given the opportunity to clarify

certain aspects of proposals (e.g., the relevance of an offeror’s past performance information and

adverse past performance information to which the offeror has not previously had an opportunity

to respond) or to resolve minor or clerical errors.” FAR 15.306(a)(2).

The communications here were not discussions because (i) the Agency did not provide

DevTech with the opportunity to revise its pricing or overall proposal and (ii) the Solicitation

provided for award without discussion. See Galen Med., 369 F.3d at 1332–33; Insight Pub., 161

Fed. Cl. at 803. While the Agency did permit DevTech to revise its VPAT Proposal, it did not

provide an opportunity for DevTech to revise its pricing or overall proposal—two key features of

a discussion. AR391; AR2172–74; ENGlobal, 159 Fed. Cl. at 767–71 (concluding an agency’s

request for new total compensation packages was a clarification, not discussion, because the total

compensation plan “operate[d] independently of the Solicitation’s . . . evaluation factors (and its

best value framework)”). Here, like in ENGlobal, the VPAT Proposal operates outside of the

Agency’s best value framework and evaluation factors. 159 Fed. Cl. at 767–68; AR391

(explaining that the VPAT Proposal is not included in the best value analysis). At oral argument,

DevTech pointed to this Court’s decision in Insight Public. OA Tr. 50:5–9. Insight Public,

however, does not support DevTech’s position. There, this Court recognized that a targeted

communication asking an offeror to supplement a portion of its proposal in which the offeror

“could not change its pricing” or other key parts of its submission constituted a clarification, not a

64 discussion. Insight Pub., 161 Fed. Cl. at 803; see also IBM Corp. v. United States, 119 Fed. Cl.

145, 158 (2014) (“And by giving [awardee] the opportunity to clarify its proposal regarding the

reservation-of-right language, the [agency] did not oblige itself to provide [protestor] with what it

seeks here—the opportunity to engage in discussions aimed at reducing its price.”). DevTech

acknowledged at oral argument that it was not provided the opportunity to revise its price along

with its VPAT Proposal. OA Tr. 51:6–15, 58:16–24 (acknowledging that any amendments to the

VPAT Proposal would not affect price); Insight Pub., 161 Fed. Cl. at 803. The Agency’s

clarification with DevTech did not affect the ability of the Agency to obtain its best value as it did

not affect pricing or any other factor relevant to the Agency’s best value analysis. See FAR

15.306(d)(2); AR391. Therefore, the Agency did not conduct discussions. See Insight Pub., 161

Fed. Cl. at 803; IBM Corp., 119 Fed. Cl. at 158. This conclusion is consistent with the Solicitation,

which did not provide for discussions. AR391; see FAR 15.306(a)(1); Galen Med., 369 F.3d at

1332–33.

Third, even if the Agency had conducted discussions—which it was neither required to do

nor actually did—the Agency still would have been under no obligation to inform DevTech that

its price was too high. DevTech asserts that “[o]nce undertaken, discussions must be equal and

must not mislead offerors.” DevTech MJAR at 35 (citing Banknote Corp. of Am. v. United States,

56 Fed. Cl. 377, 385 (2003)). DevTech’s reliance on Miller-Hozwarth and WorldTravelService

for the proposition that the Agency was required to inform it that its “price [was] excessive or

unreasonable” is misplaced. DevTech MJAR at 35–36 (first citing Miller-Hozwarth, Inc. v. United

States, 42 Fed. Cl. 643 (1999), aff’d, 232 F.3d 905 (Fed. Cir. 2000); and then citing

WorldTravelService v. United States, 49 Fed. Cl. 431, 439 (2001)). In both cases, other judges of

this Court explained that the scope and extent of discussions are left to the discretion of the

65 contracting officer. Miller-Hozwarth, 42 Fed. Cl. at 655 (“The scope and extent of discussions are

a matter of contracting officer judgment.” (citing FAR 15.306(d)(3))); WorldTravelService, 49

Fed. Cl. at 439 (“Ultimately, both the decision to conduct discussions and the scope of any

discussions are left to the judgment of the contracting officer.”). Here, the Agency had concerns

about DevTech’s VPAT Proposal only and sought a clarification. Even if considered a discussion,

the scope of that discussion would be “left to the judgment of the contracting officer.”

WorldTravelService, 49 Fed. Cl. at 439; see Miller-Hozwarth, 42 Fed. Cl. at 655.

Although DevTech stated at oral argument that its price “could be construed as excessive

or unreasonable,” nothing in the record shows that the Agency found DevTech’s high price to be

unreasonable or excessive and DevTech has not shown—or alleged—any bad faith. See OA Tr.

23:12–15. Even if the Agency did find it unreasonable, the contracting officer would not have

been obligated to raise the issue of DevTech’s high price. WorldTravelService, 49 Fed. Cl. at 439;

see Miller-Hozwarth, 42 Fed. Cl. at 655. Thus, even if this was a discussion and the Agency was

required to conduct that discussion fairly and reasonably, the Court would find that the Agency

did just that.

Finally, even if DevTech could make it past each of the first three hurdles discussed above,

it still stumbles over the final hurdle—prejudice.16 DevTech is unable to establish prejudice

16 While the Agency argues that prejudice should more broadly preclude DevTech from bringing this protest, the Court only finds prejudice appropriate to consider on certain protest grounds. OA Tr. 62:19–67:20; Agency MJAR at 32–33; Agency Resp. MJAR at 19–20. The cases cited by the Agency regarding prejudice each involve a comparison of the awardee and protestor’s pricing. See Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1563 (Fed. Cir. 1996); Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. 16, 24 (2010), aff’d, 649 F.3d 1320 (Fed. Cir. 2011). For many of the counts in this protest, however, DevTech asks the Court to find Veritas’s proposal ineligible for award. OA Tr. 19:13–22. Thus, if DevTech succeeds on its arguments and Veritas’s proposal is eliminated from contention, the comparison of Veritas and DevTech’s pricing is irrelevant. Even though the Agency argues that offeror would likely be awarded the contract in place of Veritas if Veritas’s proposal is found ineligible, nothing in the record supports that finding and the

66 because of its high price. Even if, as here, price is not the most important factor, a “whopping

price difference” supports a finding of no prejudice. See Allied Tech., 94 Fed. Cl. at 24. For

example, in Archura, the court found no prejudice where the protestor’s price was 29% higher than

the highest-price awardee and 73% more than the average awardee’s price. See Archura LLC v.

United States, 112 Fed. Cl. 487, 498–99 (2013). In Analytical & Research Technology, too, the

protestor could not establish prejudice—even in light of a procurement error by the awardee—

where its price was $4.5 million higher than the awardee and $3.4 million higher than the

government estimate. Analytical & Rsch. Tech., Inc. v. United States, 39 Fed. Cl. 34, 54 & n.19

(1997).

Here, DevTech’s price of illustrates a similar “whopping price difference.”

See Allied Tech., 94 Fed. Cl. at 24. DevTech’s price was more than five times greater than the

Agency’s cost estimate of and more than double Veritas’s winning bid of

$13,146,516.24. AR2388. As such, even if DevTech cut its proposal price in half, it would still

have a higher price and one lower overall rating than Veritas’s proposal. AR2385–88. Because

the Solicitation indicated that the Agency would “not make an award at a significantly higher

overall cost to the Government to achieve only slightly superior performance,” and because where

“the evaluation reveals that two (2) or more proposals are approximately equal in non-price factors,

then price will become significantly more important,” the Agency would not have selected

DevTech’s higher price for comparable technical ability. AR391–92.

Court cannot substitute its judgment for that of the Agency. OA Tr. 66:2–67:20; Harmonia Holdings, 999 F.3d at 1408. Therefore, the Court does not address price prejudice where DevTech asks this Court to find Veritas ineligible for the award.

67 Accordingly, DevTech was not in the active zone of consideration because of its excessive

price and did not stand a substantial chance of being awarded the contract. Colonial Press, 788

F.3d at 1355; Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999);

see also OA Tr. 23:12–15 (acknowledging that DevTech’s price “could be construed as excessive

or unreasonable”). Thus, even if the Court found procurement error, DevTech’s bid protest would

fail. More specifically, given DevTech’s pricing was more than double Veritas’s, to establish

prejudice, DevTech needed to show that it would have reduced its price significantly to compete

with Veritas. Data Gen., 78 F.3d at 1562–64. Without such a showing and in light of DevTech’s

overall high price, DevTech cannot establish that “had it not been for the alleged error in the

procurement process, there was a reasonable likelihood that the protester would have been awarded

the contract.” Id. at 1562.

2. The Agency’s Decision Not to Evaluate DevTech’s Revised VPAT Proposal Did Not Prejudice DevTech.

DevTech also argues that the Agency’s decision not to evaluate its revised VPAT Proposal

was arbitrary and capricious. DevTech MJAR at 36–38; Am. Compl. ¶¶ 219–47. Regardless of

that decision was arbitrary and capricious, DevTech cannot establish prejudice. The VPAT

Proposal was not part of the Agency’s best value decision and was “independent from the other

factors” based on the offeror’s ability to meet the Section 508 requirements. AR396; see AR391;

AR2384. Rather, the Agency considered the Technical Proposal (Volume I), the Past Performance

Proposal (Volume II), and the Price Proposal (Volume III) in its best value decision, while the

HRSA Section 508 compliance team conducted a separate review of the VPAT Proposals. See

AR391; AR2371–73.

To demonstrate prejudice, a disappointed offeror must demonstrate that “but for the alleged

error, there was a substantial chance that [it] would receive an award.” Allied Tech. Grp., 649 F.3d

68 at 1326 (alteration in original) (quoting Statistica, 102 F.3d at 1581); see Sys. Stud. & Simulation,

22 F.4th at 998 (quoting Bannum, 404 F.3d at 1353). Here, even though DevTech’s VPAT

Proposal was rated red, it did not affect the award decision because the Agency did not

immediately disqualify all offerors who received red ratings. Id. Instead, the Agency provided

the four offerors who received red ratings with an opportunity to submit revised VPAT Proposals.

AR2374.6–.7 (showing four offerors received red ratings); AR2374.5 (sending revised proposals

to Section 508 compliance team). Ultimately, due to resource constraints, the Agency determined

that it would only review “VPAT proposal resubmissions if it impacts the awardee decision from

now on.” AR2374.2; see also AR2390 (noting that “a second revision would not be conducted . . .

for proposals not submitted by the selected awardee”). The contracting officer did not resubmit

the revised VPAT Proposals. This illustrates that the VPAT Proposals did not impact the awardee

decision (i.e., that DevTech was not otherwise in contention to be the awardee). See AR2374.2;

AR2390. If DevTech’s VPAT Proposal had “impact[ed] the awardee decision,” then the Section

508 compliance team would have evaluated the revised proposal. AR2374.2. Therefore, the

record indicates that DevTech’s VPAT Proposal had no bearing on the Agency’s award decision

one way or another.

Even if the Agency’s decision not to evaluate DevTech’s revised VPAT Proposal was a

procurement error, DevTech would not have prevailed. Indeed, in a world where DevTech

received a green rating after the Agency reevaluated its VPAT Proposal, the Agency still would

not have selected DevTech’s proposal over Veritas’s proposal. As the Solicitation explained, if

“the evaluation reveals that two (2) or more proposals are approximately equal in non-price factors,

then price will become significantly more important.” AR391. The Solicitation also provided that

the Agency would “not make an award at a significantly higher overall cost to the Government to

69 achieve only slightly superior performance.” AR392. Thus, the Agency could not have selected

DevTech’s significantly higher price for nearly identical technical ratings. AR391–92; AR2385–

88. Accordingly, DevTech cannot establish prejudice on this issue because regardless of whether

the Agency’s decision not to review DevTech’s revised VPAT Proposal was an error, DevTech

did not have a substantial likelihood of receiving the award. See Allied Tech. Grp., 649 F.3d at

1326.

III. DevTech is Not Entitled to Injunctive Relief.

The Court considers four factors when deciding whether to grant injunctive relief:

(1) whether the plaintiff has succeeded on the merits, (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 granting an injunction, and (4) whether the public interest is served

by granting an injunction. Centech, 554 F.3d at 1037. The Court need not progress beyond the

first factor because “[t]here can be no injunctive relief without a corresponding prevailing claim.”

Obsidian Sols. Grp., LLC v. United States, 54 F.4th 1371, 1376 (Fed. Cir. 2022). Put differently,

a “plaintiff who cannot demonstrate success upon the merits cannot prevail upon a motion for

injunctive relief.” Insight Pub., 161 Fed. Cl. at 817 (quoting By Light Pro. IT Servs., Inc. v. United

States, 131 Fed. Cl. 358, 367 (2017)); see also Dell Fed. Sys., 906 F.3d at 999 (“[P]roving success

on the merits is a necessary element for a permanent injunction.”); Blue & Gold, 492 F.3d at 1312

(noting that success on the merits is “the most important factor required to enjoin the award of the

contract”). As discussed above, DevTech’s protest fails on the merits. Thus, DevTech is not

entitled to injunctive relief.

70 CONCLUSION

Accordingly, for the reasons stated above, the Court DENIES DevTech’s Motion for

Judgment on the Administrative Record (ECF No. 29); GRANTS the Agency’s Motion for

Judgment on the Administrative Record (ECF No. 30); and GRANTS Veritas’s Motion for

Judgment on the Administrative Record (ECF No. 27). The Clerk of Court is DIRECTED to

enter Judgment accordingly.

The parties are directed to CONFER and FILE a Notice by April 30, 2025, attaching a

proposed public version of this Sealed Memorandum and Order, with any competition-sensitive

or otherwise protected information redacted.

IT IS SO ORDERED.

Eleni M. Roumel ELENI M. ROUMEL Judge