Garrett Electronics Inc. v. United States

• Court: United States Court of Federal Claims
• Decided: January 10, 2023
• Docket: 22-807
• Status: Published

Opinion

In the United States Court of Federal Claims

GARRETT ELECTRONICS, INC.,

Plaintiff,

v. No. 22-cv-807

THE UNITED STATES, Filed Under Seal: December 19, 2022

Defendant, Publication: January 10, 2023 1

and

CEIA USA, LTD.,

Intervenor-Defendant.

Thomas Parker McLish, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C. argued for Plaintiff. With him on the briefs are Scott M. Heimberg, Samantha J. Block, and Madeline M. Bardi, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.

Domenique Grace Kirchner, United States Department of Justice, Civil Division, Washington, D.C. argued for Defendant. With her on the briefs are Brian M. Boynton, Acting Assistant Attorney General, Civil Division; Patricia M. McCarthy, Director, Commercial Litigation; Deborah A. Bynum, Assistant Director, Commercial Litigation; Eric J. Singley, Trial Counsel, Commercial Litigation; and H. Weston Miller, United States Department of Homeland Security, Office of the General Counsel.

Aaron Scott Ralph, Pillsbury Winthrop Shaw Pittman LLP, Los Angeles, CA argued for Intervenor-Defendant. With him on the briefs is Jason D. Wright, Curtis, Mallet-Prevost, Colt & Mosle LLP, New York, NY.

1 This Memorandum and Order was filed under seal in accordance with the Protective Order entered in this case (ECF No. 10) and was publicly reissued after incorporating all redactions proposed by the parties. (ECF No. 39.) The sealed and public versions of this Memorandum and Order are otherwise identical, except for the publication date and this footnote. MEMORANDUM AND ORDER

This bid protest arises out of the Federal Protective Service’s (FPS’s) efforts to procure

walk through metal detectors for federal buildings. Originating as six “night watchmen” hired in

1790 to guard buildings occupied by the then-fledgling federal government, the FPS is now

responsible for protecting more than 9,000 federal facilities located throughout the United States

and its territories. 2 The FPS deploys metal detectors in federal buildings as its first line of defense

against hazards and threats. See Administrative Record (ECF No. 19) (AR) at 3. In 2021, the FPS

requested vendors submit quotes to supply, deliver, install, and provide warranty services for walk

through metal detectors over a five-year period. See AR at 77.

Plaintiff Garrett Electronics, Inc. (Garrett) unsuccessfully bid on the FPS contract. Garrett

now challenges the FPS’s decision to award the contract to Intervenor-Defendant CEIA USA, Ltd.

(CEIA). In its Complaint, Garrett alleges “FPS’s actions with respect to this procurement were

arbitrary, capricious, and without rational basis.” Complaint (ECF No. 1) (Compl.) ¶ 2. Garrett

further argues the FPS “misapplied the evaluation criteria” and conducted “a flawed best value

analysis,” leading the FPS “to pay a price premium over Garrett’s price.” Id. Garrett requests

this Court (1) enter judgment in its favor, (2) order an injunction prohibiting the FPS from

proceeding with the award to CEIA, and (3) order the FPS to reevaluate the bids, conduct a new

best value analysis, and make a new award. Id. at 16. 3

2 Who We Are, Federal Protective Service, https://www.dhs.gov/who-we-are (last visited Dec. 2, 2022). 3 Citations throughout this Memorandum and Order to the Administrative Record correspond to the pagination within the document. Citations to all other documents, including briefing and exhibits, reference the ECF-assigned page numbers, which do not always correspond to the pagination within the document. 2 In September 2022, the parties filed their respective motions for judgment on the

administrative record, and those motions are now fully briefed. See Plaintiff’s Motion for

Judgment on the Administrative Record (ECF No. 20) (Pl.’s MJAR); Defendant’s Cross-Motion

for Judgment on the Administrative Record (ECF No. 22) (Def.’s Cross-MJAR); Intervenor-

Defendant’s Cross-Motion for Judgment on the Administrative Record (ECF No. 23) (Int.’s Cross-

MJAR). On November 15, 2022, the Court also conducted oral argument on the parties’ motions.

See Transcript of Oral Argument, dated Nov. 15, 2022 (ECF No. 35) (Oral Arg. Tr.).

Having considered the parties’ arguments, applicable law, and the Administrative Record,

the Court rules in favor of Defendant and Intervenor-Defendant. Accordingly, for the reasons

explained below, the Court DENIES Plaintiff’s Motion for Judgment on the Administrative

Record (ECF No. 20) and GRANTS Defendant’s and Intervenor-Defendant’s Cross-Motions for

Judgment on the Administrative Record (ECF Nos. 22, 23). Defendant United States

(Government), including the Department of Homeland Security and the FPS, is authorized to

proceed with its award to CEIA.

BACKGROUND

I. The Parties

Garrett is a small business headquartered in Texas that manufactures, installs, and services

walk through metal detectors for domestic and international customers. Pl.’s MJAR at 8.

According to Garrett, it has furnished walk through metal detectors for a variety of facilities and

events, including the Olympics and the 2018 FIFA World Cup in Russia. Id. at 9.

CEIA is an Ohio-based company that “specializes in the design, production and

maintenance support of metal detectors and electromagnetic inspection devices.” Int.’s Cross-

MJAR at 5; AR at 649–50. According to CEIA, it previously furnished and serviced metal

3 detectors for the FPS, including under a prior project with a scope that is “almost identical” to the

solicitation at issue here. AR at 997. CEIA is “the incumbent FPS Contractor for [walk through

metal detectors].” AR at 24; see also AR at 25, 36, 1000, 1022.

The FPS is a component of the Department of Homeland Security. Def.’s Cross-MJAR at

10. The FPS “provides integrated security and law enforcement services in support of federally

owned and leased facilities,” including facilities outside the continental United States. 4 The FPS

uses walk through metal detectors to physically screen individuals entering the approximately

9,000 federal facilities under its protection. Id.

II. The Solicitation

In November 2020, the FPS sought to “continue the upgrade of its Walk Through Metal

Detector (WTMD) program.” AR at 3. To advance this objective, the FPS issued a Request for

Quotations (Solicitation) in April 2021, seeking offers to “purchase, deliver, install and provide

warranty service for new WTMDs . . . for FPS sites within the Continental United States (CONUS)

and outside the Continental United States (OCONUS).” AR at 77. The FPS planned to award a

Blanket Purchase Agreement (BPA or Contract) for the purchase of metal detectors, with a one-

year base ordering period followed by four one-year optional ordering periods. AR at 16. The

Solicitation specified the Government would conduct the acquisition “in accordance with FAR 12

and 13.5 procedures.” AR at 9.

The Solicitation explained the Contract would “be issued to the vendor that provides the

best value.” AR at 13; AR at 105. Offeror’s quotes would be evaluated based on price and three

technical evaluation factors: Past Performance, Technical Approach, and Management Approach,

4 Who We Are, Federal Protective Service, https://www.dhs.gov/who-we-are (last visited Dec. 2, 2022). 4 listed in “descending order of importance.” Id. Each technical evaluation factor would be given

an adjectival rating of Highly Acceptable, Acceptable, or Unacceptable. AR at 13–14. The

Solicitation further stated that, when combined, the three technical evaluation factors “are

significantly more important than price.” AR at 105.

On May 24, 2021, the Solicitation closed, and the FPS received bids from three vendors:

Garrett, CEIA, and . See generally AR at 226–99

(Garrett’s Initial Quote); AR at 300–439 (CEIA’s Initial Quote); AR at 440–79 (

Initial Quote). While evaluating the bids, however, the contracting officer noticed fundamental

errors and ambiguities in the Solicitation and determined an award could not be made. AR at 499–

500. The contracting officer opted to issue a post-award amendment — Amendment 0007 — and

provide Garrett, CEIA, and the opportunity to re-submit their proposals. Id.

III. Amendment 0007

The FPS issued Amendment 0007 to the Solicitation on November 15, 2021. AR at 200.

The contracting officer sent Amendment 0007 to Garrett, CEIA, and and requested

that each offeror “correct and resubmit” their respective quotes based on Amendment 0007’s

updated instructions. AR at 200; see AR at 212–20 (Correspondence with Garrett); AR at 221–24

(Correspondence with CEIA); AR at 225 (Correspondence with ). The contracting

officer also sent each offeror a brief letter summarizing any issues found in that offeror’s respective

initial bid. See AR at 615–16 (Letter to Garrett); AR at 617–18 (Letter to CEIA); AR at 619–21

(Letter to ).

Amendment 0007 did not dramatically alter the Solicitation’s evaluation framework. Like

the original Solicitation, the FPS would still evaluate each quote based on price and the three

technical evaluation factors: Technical Approach, Past Performance, and Management Approach.

5 AR at 200–05. Amendment 0007 changed technical evaluation factor #1, Technical Approach, to

a “pass or fail” factor. AR at 202. A passing Technical Approach received an “Acceptable” rating,

and a failing Technical Approach received an “Unacceptable” rating. Id. Technical evaluation

factors #2, Past Performance, and #3, Management Approach, remained largely unchanged and

were “listed in descending order of importance.” Id. When combined, Past Performance and

Management Approach were considered significantly more important than price. Id. Amendment

0007 required each offeror resubmit its quote relating to factors #1 and #3, Technical Approach

and Management Approach. AR at 200, 204. While offerors were not required to resubmit quotes

for factor #2, Past Performance, Amendment 0007 allowed offerors to resubmit their Past

Performance submission if they so chose. AR at 203–04.

Price and the three technical evaluation factors, in their final forms, are discussed below.

A. Technical Evaluation Factor #1: Technical Approach

Amendment 0007 altered the Technical Approach factor to “a pass or fail factor,” and each

offeror would be rated Acceptable or Unacceptable for this factor. AR at 202. An Acceptable

rating reflects that the quote meets the “minimum technical specifications;” an Unacceptable rating

reflects that the quote lacks “one or more of the technical specifications.” Id. Amendment 0007

required each offeror to submit a “Technical Approach Attestation,” indicating whether the

offeror’s quoted walk through metal detector satisfied each of the requisite technical specifications.

Id.; see AR at 206–11. Amendment 0007 further stated that “[n]o other documents / pages will be

accepted for this factor.” AR at 202. The Technical Approach Attestation is simply a spreadsheet

that lists one technical specification in each row. If an offeror’s quoted metal detector satisfied

the technical specification, the offeror was required to check the corresponding “Compliant”

column; if the metal detector did not satisfy the technical specification, the offeror was required to

6 check the corresponding “Non-Compliant” column. An example of an Amendment 0007

Technical Approach Attestation is depicted below. See AR at 206.

Technical Approach Attestation (AR at 206)

B. Technical Evaluation Factor #2: Past Performance

As Technical Factors #2 (Past Performance) and #3 (Management Approach) were

numbered in “descending order of importance” under the Solicitation, Past Performance was

accordingly considered more important than Management Approach. AR at 202. Amendment

0007 required all offerors to “demonstrate relevant past performance” to the quoted job. Id.

Amendment 0007 defined relevant past performance as performance under prior projects (current

or within the last three years) “that is of a similar or directly related scope, magnitude, and

complexity” to the Solicitation. 5 AR at 203. The Solicitation further stated that such Past

5 The FPS’s Technical Evaluation Team (TET) “set benchmarks” for its evaluation of the scope, magnitude, and complexity of past projects. See AR at 721. The TET evaluated the relevancy of a past project’s scope “by the type of product or service provided” on past projects, e.g., whether the referenced past project related to the delivery and installation of walk through metal detectors as required by the Solicitation. Id. The TET evaluated the relevancy of a past project’s magnitude 7 Performance information would “assist the Government in determining the degree of risk

associated with” each offeror, based on each offeror’s proven capability to execute projects of

similar scope, magnitude, and complexity to the contemplated Contract. AR at 203.

Each offeror was required to submit at most three past projects for evaluation. See AR at

203. For each past project, a Past Performance Questionnaire (Attachment 5) was sent to an

offeror’s customers “to provide feedback” on each past project. Id.; see AR at 136–40 (Past

Performance Questionnaire). Amendment 0007 acknowledges that an offeror’s past projects could

encompass performance by third parties, such as subcontractors. AR at 203. In that situation, the

Government may evaluate the subcontractors’ performance “separately and consider its findings

about [the subcontractor] . . . when determining the risk associated with the quote and [in]

assigning the appropriate rating to the quote.” Id. Furthermore, Amendment 0007 noted that “[t]he

Government may decide not to attribute to the prime contractor, as an organization, the past

performance of its” subcontractors. Id.

C. Technical Evaluation Factor #3: Management Approach

Under the Management Approach factor, each offeror was required to “provide

management strategies and proposed solutions demonstrating how they will result in better value

to the government.” AR at 204. Given the operational needs of the FPS, including the need for

functional metal detectors on a 24/7 basis, offerors were required to demonstrate how they would

prevent disruptions relating to metal detector malfunction or servicing requirements. Id.

“by considering various measures such as . . . the quantity of [walk through metal detectors] delivered in a year and or the annual purchase amount.” Id. The TET evaluated the relevancy of a project’s complexity “by considering various measures such as . . . the experience in delivery, installation, training, warranty coverage and annual maintenance of [walk through metal detectors] in geographically dispersed locations in CONUS and OCONUS locations.” AR at 722. No party challenged the propriety of the TET’s benchmarks. 8 Amendment 0007 elaborated that the Management Approach factor was an opportunity for each

offeror to demonstrate the value its management strategies would bring to the FPS. See id.

(Management Approach “is where the benefits of the vendor and not only the equipment will be

determined.”). Amendment 0007 required that, at a minimum, each submitted quote discuss the

offeror’s proposed warranty and maintenance plan; methods and procedures the offeror would use

to ensure completion of deliveries in a timely manner; and the offeror’s approach to manage the

quality and timeliness of any response to the Government’s requests and concerns during Contract

performance. Id.

D. Price Factor

Amendment 0007 required that offerors’ quotes include unit prices and extended prices;

the Amendment stated the extended price is the unit price multiplied by the not-to-exceed quantity

listed in the Solicitation. AR at 204. Like the original evaluation framework, under Amendment

0007, “Technical Factors #2 and 3 . . . when combined, are [still considered] significantly more

important than price.” AR at 202.

IV. First Technical Evaluation

On November 22, 2021, the three original offerors — Garrett, CEIA, and —

submitted revised quotes in response to Amendment 0007. 6 See AR at 622–37 (Garrett’s

Amendment 0007 quote); AR at 638–88 (CEIA’s Amendment 0007 quote); AR at 689–716

( Amendment 0007 quote). The TET then evaluated and rated each Amendment 0007

quote. AR at 717–38.

6 An offeror’s quote, submitted in response to Amendment 0007, is referenced as the offeror’s “Amendment 0007 quote.” 9 A. Evaluation of Garrett’s Amendment 0007 Quote

The TET determined that under Technical Factor #1, Technical Approach, Garrett fully

completed the Technical Approach Attestation, demonstrating its quoted metal detector, the

Garrett PD6500i, satisfied the Solicitation’s technical requirements. AR at 722; see generally AR

at 627–37. Accordingly, the TET rated Garrett’s Technical Approach Acceptable. AR at 722.

Garrett provided three past projects for evaluation under Technical Factor #2, Past

Performance. AR at 722. Garrett’s first project involved its manufacture and delivery of walk

through metal detectors for use at the . AR at 722–23. Garrett’s second

project consisted of the manufacture, delivery, installation, and training regarding walk

through metal detectors across ten locations within the United States, including Puerto Rico. Id.

Garrett’s third project comprised the manufacture and installation of walk through metal

detectors at the . Id. Garrett used

subcontractors for portions of the work in its past projects; however, despite that Amendment 0007

permitted “teaming arrangements” with subcontractors, Garrett did not propose using

subcontractors in its Amendment 0007 quote. See AR at 203; AR at 723–25.

Each Past Performance Questionnaire completed by Garrett’s customers on the noted three

projects reflected that Garrett’s past performance on those jobs was “Highly Acceptable.” AR at

723–24. The TET further concluded the scope and magnitude of Garrett’s three past projects were

“relevant” to the Solicitation. AR at 723–25. However, in assessing complexity, the TET

determined that Garrett’s first project ( ) was not relevant and third project (

) was only partially relevant. Id. Specifically, the TET found that Garrett’s first and third

projects

. Id. Regarding Garrett’s first project (furnishing walk through metal detectors for

10 the ), the TET determined “there is limited information regarding actual

life maintenance of the machines.” AR at 724. By way of background, Garrett

. Id. The TET found relevant to the complexity determination that

Id. In summary, in making its complexity determination, the TET found that the information

Garrett provided regarding its

Id. In assessing Garrett’s third project, in which

Garrett provided and installed metal detectors

Id. Additionally, the TET found relevant

to its complexity determination that this past job

Id.; see also AR at 77 (FPS utilizes walk through metal detectors

“in all 50 states, the District of Columbia, and all U.S. Territories”); id. (scope of work includes

servicing walk through metal detectors “within the Continental United States . . . and outside the

Continental United States”).

Finally, the TET stated that in assessing the complexity of Garrett’s past performance, it

“had some difficulty when identifying which portion of [the prior] work was performed by

[subcontractors] and which work was accomplished by Garrett itself.” AR at 725. The TET further

noted that the various tasks required under the Solicitation, including “delivery, maintenance,

training, warranties, [and handling] geographic dispersion . . . were not always identifiably met

by” Garrett in its past projects. Id. Since Garrett did not propose using subcontractors for this

11 Contract, the TET determined it could not adequately confirm that Garrett could handle the

complexity of the Contract at issue in the Solicitation. Id. The TET also noted that it could not

locate CPARS 7 reports “for Garrett or any of [Garrett’s] identified [subcontractors]” noted in

Garrett’s past performance submission. Id. The TET thus concluded “there is a risk associated

with Garrett’s past performance particularly when demonstrating similar complexity.” Id.

Accordingly, the TET rated Garrett’s Past Performance as Acceptable. Id.

In assessing Technical Factor #3, Management Approach, the TET found that Garrett’s

Amendment 0007 quote included “one significant weakness.” AR at 726. The TET stated that

Garrett did not detail the methods and procedures it would use to ensure deliveries would be

completed and submitted in a timely manner. Id.; see AR at 204 (Amendment 0007 stating vendors

should “[a]t a minimum . . . [d]escribe methods and procedures . . . to ensure that deliveries are

completed and submitted in a timely manner”). Although Garrett emphasized in its submission

that it had sufficient inventory to fulfill deliveries, it did not describe the “procedural or logistical

methods” it would use to ensure timely deliveries, which, the TET found, “poses [a] possible

security risk to the government.” Id. Despite the identification of this significant weakness, the

TET nonetheless rated Garrett’s Amendment 0007 quote’s Management Approach as Acceptable.

Id.

B. Evaluation of CEIA’s Amendment 0007 Quote

In assessing CEIA’s quote under Technical Factor #1, Technical Approach, the TET

concluded CEIA fully completed the Technical Approach Attestation, demonstrating its quoted

7 CPARS is the “Contractor Performance Assessment Reporting System.” CPARS contains past performance information for federal contractors and is a resource used by federal agencies when making award decisions. See Homepage, CPARS, https://cpars.gov/index.htm (last visited Nov. 8, 2022). 12 metal detector satisfied the Solicitation’s technical requirements. AR at 726; see generally AR at

641–48. Accordingly, the TET rated CEIA’s Technical Approach as Acceptable. AR at 727.

CEIA submitted three projects for review to satisfy Technical Factor #2, Past

Performance. AR at 727–29. The TET found that all three projects were “fully relevant in regard

to scope, magnitude, and complexity.” AR at 729. In particular, the TET explained that CEIA’s

first project “represents [FPS’s] most recent [contract] with CEIA and is the most directly relevant

project, as the scope of service is almost identical to the instant requirement.” Id. The past

performance questionnaires for CEIA’s projects demonstrated that CEIA’s work was highly

acceptable, and the TET located 16 additional CPARS evaluations rating CEIA’s performance

anywhere between Satisfactory to Exceptional. AR at 733; AR at 729. The TET rated CEIA’s

Past Performance as Highly Acceptable. See AR at 729.

In assessing Technical Factor #3, Management Approach, the TET identified three

strengths in CEIA’s Management Approach that offered “benefits to the government.” AR at 731.

First, CEIA identified for specific

aspects of the Contract. Id. Second, the TET found that CEIA had provided a thoughtful and

detailed plan for ensuring . Id. CEIA’s plan “demonstrated an understanding of

risks that come along with management of large orders of machines which are geographically

dispersed.” Id. Third, CEIA included a that, according to the TET,

“provided a clear description” of CEIA’s proposed process for .

Id. As a result of this detailed and transparent plan, the TET found that

is minimized . . . increasing the security of both the facility and its occupants.” Id.

Accordingly, the TET rated CEIA’s Management Approach as Highly Acceptable. Id.

13 C. Evaluation of Amendment 0007 Quote

The TET rated Technical Approach and Management Approach factors as

Unacceptable. AR at 731–32. also did not submit any past projects for review; its Past

Performance factor was rated Neutral. 8 Id.

D. Summary of Ratings

In summary, the TET determined that CEIA submitted the highest-rated technical quote.

AR at 736. The TET rated CEIA’s Technical Approach as Acceptable, and its Past Performance

and Management Approach as Highly Acceptable. Id. The TET found that CEIA’s performance

on the incumbent project demonstrated CEIA could manage the scope, magnitude, and complexity

of the tasks required by the Solicitation. AR at 729; AR at 733. The TET also assigned three

strengths to CEIA’s Management Approach. AR at 731; AR at 734. In contrast, while the TET

likewise rated Garrett’s Technical Approach as Acceptable, it rated Garrett’s Past Performance

and Management Approach only as Acceptable, not Highly Acceptable. AR at 736. Regarding

Past Performance, the TET noted that two of Garrett’s submitted past projects did not fully meet

the complexity of the Solicitation. AR at 725; AR at 733–34. Furthermore, the TET found that

Garrett’s Management Approach contained a “significant weakness,” as Garrett did not explain

how it would ensure timely deliveries. AR at 734. Finally, the TET rated quote as

Unacceptable; was therefore deemed ineligible for award. AR at 733.

The TET’s ranking of the three Amendment 0007 quotes is summarized below, as well as

each quote’s proposed price. See AR at 736; AR at 740.

8 According to the TET, “[s]ince there is no relevant past performance associated with this vendor, a rating of Neutral was assigned. No relevant performance record is identifiable upon which to base a meaningful performance risk prediction. This is neither a favorable nor unfavorable rating.” AR at 732. 14 Technical Past Management Ranking Vendor Price Approach Performance Approach Highly Highly 1 CEIA Acceptable $5,395,130.00 Acceptable Acceptable

2 Garrett Acceptable Acceptable Acceptable

3 Unacceptable Neutral Unacceptable

V. First Award

While the TET was responsible for evaluating and rating the submitted quotes, it was not

responsible for ultimately selecting the awardee. That role fell to the contracting officer, who was

the designated source selection official. See AR at 747. 9 The contracting officer reviewed the

offerors’ Amendment 0007 quotes along with the TET’s Technical Evaluation Report. See AR at

739–43. Based on “the quotes and an assessment of the advantages and disadvantages associated

with each,” the contracting officer “determined that the quote submitted by [CEIA] provides the

best overall value to the Government, price and non-price factors considered.” AR at 739.

Accordingly, the contracting officer decided the “award should be made to” CEIA (First Award).

With respect to Past Performance, the contracting officer reasoned that “CEIA is found to

be superior to Garrett due to multiple factors,” including:

[S]uccessful performance on the most relevant contract compared to the instant requirement[,] demonstrating the most relevant past performance, more examples of fully relevant past performance as compared to Garrett, and more visibility of the vendors [sic] performance on the ancillary services provided as part of this instant requirement, to include maintenance, training, warranties, etc.

9 Accordingly, the terms “contracting officer” and “source selection official” are used synonymously within this Memorandum and Order. 15 AR at 741. The contracting officer found that Garrett’s Amendment 0007 quote thus demonstrated

“significantly more performance risk to the government as compared to the performance risk

associated with CEIA.” Id. With respect to Management Approach, the contracting officer noted

that CEIA’s Amendment 0007 quote included three strengths, while Garrett’s Amendment 0007

quote had no strengths and one significant weakness. AR at 741. Accordingly, the contracting

officer concluded CEIA’s Amendment 0007 quote was “significantly superior” on Management

Approach. AR at 742.

While CEIA’s Amendment 0007 quote was superior to Garrett’s, CEIA’s quoted price was

$5,395,130.00 — about more than Garrett’s quoted price. AR at 742.

This was equivalent to an approximately annual price premium over the life of the five-

year Contract. Due to the price differential, the contracting officer conducted “a price/technical

tradeoff analysis to determine whether CEIA’s quote provides non-price benefits that would justify

paying the annual price premium associated with their quotation.” Id. The contracting

officer emphasized that “CEIA was determined to be superior in all aspects of their technical quote

when compared to Garrett.” Id. She further stated that CEIA’s Amendment 0007 quote

“demonstrates relevant and high-quality past performance,” and its Management Approach

“provides a level of technical superiority which is superior to any benefits associated with the

selection of the lower price quote of Garrett, which included a significant weakness and overall

lack of detail and specificity.” Id.

The contracting officer further reasoned that “[s]pecifically differentiating CEIA’s quote

from Garrett’s quote was an overall understanding of the complexity of the [Solicitation’s]

requirements;” this understanding was “suggestive of experience with risks associated with

downtime or lapse in working WTMD.” AR at 742. The contracting officer stressed that

16 functioning metal detectors are crucial to the FPS’s mission, and “[s]ecurity breaches or lapses,”

including those resulting from metal detector downtime, “could be catastrophic.” Id. In contrast

to CEIA’s comprehensive quote, the contracting officer found Garrett’s “lack of detail” in its

Management Approach risked

AR at 743. The contracting officer concluded “there is significantly

less performance risk associated with CEIA’s technically superior quote, which more than offsets

the annual price premium.” Id.

On February 4, 2022, the contracting officer issued a notice of award to CEIA. See AR at

777. The contracting officer also informed Garrett and of her decision to award the

Contract to CEIA. See AR at 845–50. Garrett subsequently requested an explanation of the FPS’s

decision. AR at 857–59. On February 10, 2022, the contracting officer prepared for Garrett a brief

explanation of award letter. See AR at 851–53. The contracting officer explained that regarding

Past Performance, Garrett’s first and third projects “did not fully meet complexity” and were

therefore only “partially relevant.” AR at 852. The contracting officer also informed Garrett that

its Management Approach contained a significant weakness. Id. Overall, the contracting officer

explained that CEIA’s quote provided better value, as it was “technically superior” to Garrett’s

quote and was worth the price premium. Id.

VI. GAO Protest and Subsequent Corrective Action

On February 14, 2022, Garrett filed a pre-award protest at the GAO. AR at 882. Garrett’s

protest rested on two grounds. First, Garrett argued the FPS departed from the Solicitation’s

evaluation criteria. AR at 890–91. Garrett eventually withdrew this argument. AR at 909.

17 Second, Garrett argued the FPS’s best value analysis was flawed — namely, that the FPS had no

logical rationale for accepting the “enormous price premium” of CEIA’s proposal. AR at 891–93.

In response to the GAO protest, the contracting officer drafted an Agency Report. See AR

at 933. While preparing the Agency Report, the contracting officer determined “corrective action

was necessary and in the best interest to the government” because CEIA’s Amendment 0007 quote

“had missing information that may have precluded them from award.” Id. Pursuant to that

determination, the TET “re-evaluated all three quotations as their corrective action.” Id.; see AR

at 918–33.

The TET “affirmed there [were] no changes in [its] assessment” of Garrett’s and

Amendment 0007 quotes. AR at 923–24; AR at 926–27. The TET likewise affirmed

no changes in its assessment of the Past Performance and Management Approach portions of

CEIA’s Amendment 0007 quote. AR at 925–26. However, the TET concluded that due to an

“administrative oversight,” its initial assessment of CEIA’s Technical Approach was flawed. AR

at 925. Specifically, the TET stated that CEIA’s Amendment 0007 quote “did not reflect that

[CEIA’s] machine met all minimum specifications” because CEIA’s Technical Approach

Attestation “missed two mandatory attestation[] sections.” Id. In other words, CEIA had

apparently made a clerical error and had failed to indicate compliance with two technical

specifications listed in the Technical Approach Attestation. Id. This stood in contrast to CEIA’s

original submission, which had certified that CEIA’s walk through metal detectors complied with

the Solicitation’s technical requirements. See AR at 412–33; Oral Arg. Tr. at 62:22–64:15 (CEIA’s

counsel explaining “in the first proposal . . . CEIA . . . affirm[ed] that it was able to meet [the

Solicitation’s] technical requirements”); see also infra note 17. It was also inconsistent with

CEIA’s other representations contained in its Amendment 0007 quote, which certified its proposed

18 equipment was “fully compliant with all specified requirements.” AR at 640. Accordingly,

because CEIA did not properly complete the Technical Approach Attestation form when it

submitted its Amendment 0007 quote, the TET changed CEIA’s Technical Approach Rating from

Acceptable to Unacceptable. Id. The TET also affirmed that “any strengths, weaknesses, and/or

deficiencies” in the three Amendment 0007 quotes, including Garrett’s significant weakness,

“remained unchanged” after the TET’s re-evaluation of the quotes. Id. at 934. The TET’s updated

rankings after the re-evaluation are as follows (see AR at 927–28):

Technical Past Management Ranking Vendor Price Approach Performance Approach 1 Garrett Acceptable Acceptable Acceptable

Highly Highly 2 CEIA Unacceptable $5,395,130.00 Acceptable Acceptable

Instead of awarding the contract to Garrett, the contracting officer, as the source selection

officer, subsequently determined further corrective action was necessary. AR at 933. “Based on

[the TET’s] re-evaluation . . . additional communications with the vendors and revised quotes are

necessary.” AR at 934. She stated that “[c]ommunication will be released to [CEIA] and [Garrett]

to correct, update and/or improve their existing proposals.” 10 Id. Furthermore, “[i]nformation will

be provided to each . . . on any weaknesses or deficiencies” found in their respective proposals.

Id. CEIA and Garrett would also have the opportunity to update or revise their proposed prices.

Id. The FPS would then evaluate CEIA’s and Garrett’s updated proposals and issue a new award,

10 The contracting officer excluded from further consideration. See AR at 934. Despite that it already had an opportunity to correct its proposal, “was unable to strengthen [its] proposal.” Id. The contracting officer further explained that the “level of performance risk associated with [ ] proposal is so significant that it is unlikely the proposal would result in satisfactory contract performance.” Id.

19 if necessary, or maintain the First Award to CEIA. 11 Id. The contracting officer was clear,

however, that exchanges between the FPS and the offerors were not “discussions” and were “not

to be construed or interpreted under the provisions of FAR 15.3.” Id. The contracting officer

likewise stated that she reserved the right to “conduct communication with one, some, none or all

vendors at its discretion.” Id.

On April 22, 2022, the contracting officer sent letters to Garrett and CEIA, informing them

of the FPS’s planned, additional corrective action. AR at 935–51. The contracting officer

requested that Garrett and CEIA provide updated proposals and explained each offeror “may . . .

re-submit some or all of your quotation.” AR at 935, 946. The contracting officer also provided

specific feedback to Garrett and CEIA, respectively, about the most prominent issues in their

former quotes. In her letter to CEIA, the contracting officer noted CEIA’s deficient Technical

Approach Attestation, flagging that CEIA did not indicate compliance with the Operational

Availability and Test Functions technical requirements. AR at 946–47. The contracting officer

also noted to Garrett the “significant weakness” in Garrett’s Management Approach. AR at 935.

Specifically, Garrett was informed that its Amendment 0007 quote concerning Management

Approach did not sufficiently “lay out procedural or logistical methods” to ensure deliveries will

be fulfilled in a timely manner. AR at 935–36.

In a follow-up question to the contracting officer, Garrett noted prior feedback from the

FPS, particularly the FPS’s February 10, 2022 explanation letter, “indicated that ‘greater

complexity’ is desired with past performance” and queried “what specific criteria points of

complexity are evaluators seeking as the standards for complexity?” AR at 944. The contracting

11 In view of the FPS’s additional corrective action, the GAO dismissed Garrett’s protest as academic. See AR at 911. 20 officer reiterated the instruction in the Solicitation that “the scope, magnitude, and complexity of

a vendor’s past performance projects/contracts are compared to the requirements of the current

solicitation.” Id. The contracting officer further cautioned, “[it] is the vendor’s responsibility to

carefully review the current solicitation requirements and submit past performance

projects/contracts that most closely align with the scope, magnitude, and complexity of the instant

requirement.” Id.

VII. Second Technical Evaluation

CEIA and Garrett submitted updated quotes on April 27, 2022 and May 11, 2022,

respectively. 12 See AR at 952–67 (Garrett’s final quote); AR at 968–81 (CEIA’s final quote). The

TET again evaluated the updated quotes.

A. TET Evaluation of Garrett’s Final Quote

In its final quote, Garrett updated its Technical Approach, demonstrating again that its walk

through metal detectors satisfied the Solicitation’s technical requirements. 13 See AR at 987–88.

The TET thus rated Garrett’s Technical Approach as Acceptable. Id. Garrett did not update the

Past Performance portion of its quote; accordingly, the TET made no changes to its assessment of

Garrett’s Past Performance and maintained Garrett’s rating of Acceptable. AR at 988–91.

In response to the significant weakness identified by the contracting officer in Garrett’s

Amendment 0007 quote, Garrett updated its Management Approach in its final quote to address

the noted weakness. AR at 987; AR at 991–94. Upon its re-evaluation, the TET identified a

12 The Court references offerors’ updated, post-corrective action quotes as the offerors’ “final quotes.” Each final quote consists of both the offeror’s updates submitted in response to the FPS’s additional corrective action, along with any sections of the offeror’s Amendment 0007 quote that were not updated in response to the additional corrective action. See AR 987, 994. 13 Garrett’s Amendment 0007 Technical Approach had previously passed as Acceptable. See AR at 722. 21 strength in Garrett’s updated Management Approach, but also identified two weaknesses and one

area of concern. AR at 993–94. The first weakness identified in Garrett’s final quote included

Garrett’s stated goal to limit metal detector downtime to 24–96 hours in CONUS locations and

96–168 hours in OCONUS locations. AR at 993; see also AR 952–59. The Solicitation, however,

mandated downtime of no more than three business days (72 hours). See AR at 90. The second

weakness identified in Garrett’s final quote was an ambiguity regarding Garrett’s service requests

and operating hours. In response to a service request, Garrett assured that a technician would

respond within an hour during normal business hours,

AR at 994. The Solicitation, however, defined “normal business hours” as

8 a.m. to 4:30 p.m. locally; it did not state a particular time zone when defining “normal business

hours.” Id. The TET interpreted Garrett’s statement as an indication that there would be times

within “normal business hours,” as defined in the Solicitation, when coverage would not be

available under Garrett’s proposal. Id. For example, 8 a.m. EDT is 7 a.m. CDT, which, according

to the TET, was not within “normal business hours,” as defined in Garrett’s proposal. Id. The

TET also expressed concern with Garrett’s personnel bandwidth to provide adequate service. AR

at 993–94. Garrett employed “who will travel and cover technical phone

support.” AR at 956. The TET expressed concern that could be insufficient to

“provide all technical phone support as well as deliveries, installations, [and] trainings.” AR at

993–94. Finally, the TET identified one strength in Garrett’s updated Management Approach,

namely the number of units Garrett was able to produce in a short amount of time to quickly replace

aging metal detectors. AR at 994.

Accordingly, the TET gave Garrett’s Management Approach in its final quote the same

rating it previously gave Garrett — Acceptable. AR at 993–94.

22 B. TET Evaluation of CEIA’s Final Quote

CEIA’s final quote updated only the Technical Approach portion of its prior quote; the

TET therefore maintained its evaluations of CEIA’s previous Past Performance and Management

Approach submissions, which were both rated as Highly Acceptable. AR at 994. CEIA’s final

quote corrected the prior administrative deficiency in CEIA’s Technical Approach, as identified

by the contracting officer. Id. CEIA completed the Technical Approach Attestation, indicating its

metal detectors met the Solicitation’s technical requirements. AR at 994. Its Technical Approach,

as stated in its final quote, was deemed Acceptable. Id.

C. Summary of the TET’s Updated Ratings

The TET’s ratings and ranking of Garrett’s and CEIA’s final quotes were identical to its

previous ratings and rankings. CEIA’s Past Performance was rated Highly Acceptable. AR at

1000. The TET specifically noted CEIA’s performance on an incumbent project, which was

“highly acceptable or exceptional in all areas” and involved “almost identical tasks” as those

associated with the Solicitation. Id. CEIA’s Management Approach was likewise rated Highly

Acceptable, with three identified strengths: first, CEIA’s involved in

performing the Contract; second, CEIA’s “thoughtful and detailed” approach for

; and third, CEIA’s , which was detailed and “provided a

clear description of processes and accountability.” AR at 1001. In contrast, Garrett opted not to

update its Past Performance submission, despite receiving an Acceptable rating during the prior

evaluation. See AR at 987. Nor did Garrett update its submission regarding the two projects the

TET had identified as lacking complexity in comparison to performance required by the

Solicitation. Id.; see also AR at 1000–01. Garrett could have provided more detail or swapped

out the past project examples, but did not. AR at 935 (contracting officer authorizing Garrett to

23 “re-submit some or all of [its] quotation”). While Garrett updated its Management Approach

submission, the TET still identified two weaknesses and a concern in Garrett’s updated

submission, as well as a single strength. AR at 1001–02. Specifically, the TET identified Garrett’s

proposed normal business hours and metal detector downtime as weaknesses and further identified

Garrett’s limited support personnel as an area of concern. AR at 1002. The TET identified

Garrett’s capacity to produce units in a short time frame as the sole strength in Garrett’s

Management Approach. Id. In sum, the TET determined “CEIA’s proposal is considered

technically superior to [Garrett’s].” Id. The TET’s ranking of the two updated, final quotes is

summarized below, as well as the updated price for each quote. See AR at 1002–03, 1009.

Technical Past Management Ranking Vendor Price 14 Approach Performance Approach Highly Highly 1 CEIA Acceptable $5,395,130.00 Acceptable Acceptable

VIII. Final Award

The same source selection authority, here the contracting officer, again reviewed Garrett’s

and CEIA’s final quotes, including revised pricing, as well as the TET’s updated Technical

Evaluation Report. AR at 1019. The contracting officer concluded “the quote submitted by

[CEIA] provides the best overall value to the Government.” Id. As Garrett and CEIA’s Past

Performance submissions did not change since the contracting officer’s First Award, her

corresponding analysis therefore remained the same. The contracting officer found CEIA’s quote

“superior to [Garrett’s] due to multiple factors,” including successful performance on the

14 As noted infra Discussion Section I.B.iv, Garrett also increased its price in its final quote, while CEIA resubmitted the same price in its final quote. The differential between the updated prices of the two offerors was approximately , or about per year of the Contract’s five year term. 24 incumbent contract; more examples of fully relevant past performance; and more visibility of

CEIA’s performance on such as AR

at 1021. The contracting officer also compared CEIA’s Management Approach — with three

demonstrated strengths — to Garrett’s updated Management Approach — with only one strength,

two weaknesses, and a concern — and concluded that “CEIA’s quote is . . . superior.” AR at

1021–22. CEIA’s final quote, therefore, remained technically superior to Garrett’s final quote.

The contracting officer also evaluated price prior to making an award. Specifically, the

contracting officer reasoned that because CEIA’s price — which was unchanged after the

corrective action — was still greater than Garrett’s slightly increased price, she needed to conduct

a “price/technical tradeoff analysis to determine whether CEIA’s quote provide[d] non-price

benefits that would justify paying the annual price premium associated with [CEIA’s]

quotation.” AR at 1022. The contracting officer reasoned that her price/technical tradeoff analysis

demonstrated that CEIA’s final quote offered a “better value to the Government.” Id. Specifically,

she found that CEIA’s quote “demonstrate[d] relevant and high-quality past performance as well

as an effective, comprehensive, and detailed Management Approach plan.” Id. The contracting

officer emphasized that CEIA’s quote demonstrated comfort with the level of complexity required

by the Solicitation and demonstrated CEIA’s ability to manage metal detectors across

geographically dispersed locations. AR at 1023. Given the importance of metal detectors to the

FPS mission, the contracting officer found that CEIA’s “technically superior” quote offered “less

performance risk” than Garrett’s quote and “more than offsets the annual price

premium.” Id. In contrast, the contracting officer emphasized that Garrett’s

cast doubt on Garrett’s ability to manage the complexity of the Solicitation. Id.

Additionally, the contracting officer noted that Garrett’s “timeframes associated with replacement

25 machines was the largest concern identified by the TET,” which, in the contracting officer’s view,

demonstrated Garrett “may not understand the critical nature of [metal detector downtime] under

the FPS[’s] instant requirement.” Id.

Accordingly, the contracting officer determined that CEIA offered the best value and

accordingly awarded the Contract to CEIA (Final Award). AR at 1019, 1023.

IX. Procedural History

Garrett filed this bid protest on July 25, 2022, approximately three weeks after the FPS

made its Final Award of the Contract to CEIA. See Compl. The Government agreed to “stay all

performance on the [C]ontract at issue until” December 9, 2022, and the parties agreed to a briefing

schedule. See Aug. 1, 2022 Joint Status Report (ECF No. 12) at 1; Nov. 7, 2022 Status Report

(ECF No. 30) at 1. Garrett filed its Motion for Judgment on the Administrative Record on

September 2, 2022, and the Government and CEIA cross-moved for Judgment on the

Administrative Record on September 23, 2022. See Pl.’s MJAR; Def.’s Cross-MJAR; Int.’s Cross-

MJAR. On November 15, 2022, this Court conducted oral argument on the parties’ three MJARs.

See Oral Arg. Tr.

APPLICABLE LEGAL STANDARD

This Court reviews post-award bid protests in two steps. First, the Court analyzes the

procurement under the Administrative Procedure Act (APA). 28 U.S.C. § 1491(b)(4); Harmonia

Holdings Grp., LLC v. United States, 20 F.4th 759, 766 (Fed. Cir. 2021) (citing XOtech, LLC v.

United States, 950 F.3d 1376, 1380 (Fed. Cir. 2020)). Second, the Court analyzes whether the

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

1308 (Fed. Cir. 2021) (citing Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005)).

26 Turning to the first step, the APA requires a reviewing court to determine “whether the

agency’s actions were ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.’” Off. Design Grp. v. United States, 951 F.3d 1366, 1371 (Fed. Cir. 2020) (quoting

Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir. 2013)); 28

U.S.C. § 1491(b)(4); 5 U.S.C. § 706. Although the inquiry under the APA “is to be searching and

careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute

its judgment for that of the agency.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402,

416 (1971). Accordingly, courts may set aside an award only if “(1) ‘the procurement official’s

decision lacked a rational basis’ or (2) ‘the procurement procedure involved a violation of

regulation or procedure.’” DynCorp, 10 F.4th at 1308 (quoting WellPoint Mil. Care Corp. v.

United States, 953 F.3d 1373, 1377 (Fed. Cir. 2020)).

When a protestor alleges the agency’s decision — including a decision to implement

corrective action — 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)). As the United States Court of Appeals for the

Federal Circuit (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 Contruzioni Geom. Domenico Garufi v. United

States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)). Indeed, 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)). Protestors bear a similar burden when alleging that the procurement

involved legal or procedural violations, as the court reviews such claims for “a clear . . . violation

27 of applicable statutes or regulations.” Id. at 1333 (quoting Kentron Haw., Ltd. v. Warner, 480 F.2d

1166, 1169 (D.C. Cir. 1973)).

At the second step, regardless of whether the alleged error relates to irrational conduct or

a violation of law, the protestor must establish that the agency’s conduct prejudiced the protestor.

See Sys. Stud. & Simulation, Inc. v. United States, 22 F.4th 994, 996–97 (Fed. Cir. 2021) (citing

Shinseki v. Sanders, 556 U.S. 396, 406–07 (2009)). This is a factual question for which the

protestor must “show ‘that there was a “substantial chance” it would have received the contract

award but for’ the [alleged error].” Id. at 998 (quoting Bannum, 404 F.3d at 1353). “De minimis

errors in the procurement process [generally] do not justify relief.” Off. Design Grp., 951 F.3d at

1374 (alteration added).

If a protestor meets its burden of demonstrating that the procurement both violated the APA

and prejudiced the protestor, declaratory or injunctive relief may be appropriate. See 28 U.S.C.

§ 1491(b)(2). However, successful protestors are not automatically entitled to an injunction. See

Centech Grp., 554 F.3d at 1037. Before entering injunctive relief, “the court must consider

whether (1) the plaintiff has succeeded on the merits, (2) the plaintiff will suffer irreparable harm

if the court withholds injunctive relief, (3) the balance of hardships to the respective parties favors

the grant of injunctive relief, and (4) the public interest is served by a grant of injunctive relief.”

Id. (citing PGBA, LLC v. United States, 389 F.3d 1219, 1228–29 (Fed. Cir. 2004)).

The Rules of the United States Court of Federal Claims (Rules) provide the equivalent of

an expedited trial on a “paper record, allowing fact-finding by the trial court.” Bannum, 404 F.3d

at 1356. Parties initiate such proceedings by filing motions for judgment on the administrative

record. Rule 52.1(c). In adjudicating such motions under Rule 52.1, courts resolve questions of

28 fact by relying on the administrative record. Bannum, 404 F.3d at 1356. If necessary, a court may

remand the case to a governmental agency for further factual findings. See generally Rule 52.2.

DISCUSSION

Garrett argues the FPS’s conduct in administering the Solicitation and in making the Final

Award was arbitrary and capricious in two respects. The first relates to the FPS’s decision to take

additional corrective action after re-evaluating the offerors’ Amendment 0007 quotes in response

to Garrett’s GAO protest. Garrett claims the FPS’s additional corrective action was an

unreasonable and transparent attempt to award the contract to its preferred vendor, CEIA. See

Pl.’s MJAR at 24–26. Garrett also alleges the FPS implemented the corrective action unfairly,

favoring CEIA over Garrett and thereby giving CEIA a competitive advantage. Id. at 26–29.

Garrett’s second principal argument targets the FPS’s evaluation and ratings of Garrett’s and

CEIA’s final quotes. Specifically, Garrett argues the FPS’s evaluation and rating of Garrett’s final

quote on Past Performance and Management Approach were arbitrary and capricious. Id. at 29–

32. Garrett also contends the FPS’s decision to award the Contract to CEIA, despite CEIA’s higher

price, was unreasonable and the result of a flawed best value analysis. Id. at 32–33.

This Court disagrees. Garrett has not met its “heavy burden” of proving the FPS’s

administration of the Solicitation was arbitrary and capricious. Centech Grp., 554 F.3d at 1037.

Accordingly, and for the reasons discussed in greater detail below, this Court must deny Garrett’s

MJAR and grant the Government’s and CEIA’s Cross-MJARs.

I. The FPS’s Decision to Take Additional Corrective Action and Subsequent Implementation of the Additional Corrective Action Was Rational and Not Arbitrary and Capricious

Garrett presents two complaints regarding the FPS’s additional corrective action. First,

when the FPS realized it made a mistake in its initial evaluation of CEIA’s Amendment 0007

29 quote, the FPS took additional corrective action by seeking revised quotes from both Garrett and

CEIA. See AR at 933–34. Garrett argues the FPS’s chosen corrective action was unreasonable.

Pl.’s MJAR at 24–26. In Garrett’s view, the FPS “could have and should have awarded the contract

to Garrett.” Id. at 6; see also id. at 25. Instead, Garrett contends that the FPS “decided to

manipulate the process in an effort to retroactively justify its award to CEIA.” Id. at 6–7.

Second, Garrett asserts the FPS compounded its allegedly arbitrary and capricious error by

implementing the additional corrective action unfairly. Id. at 7. Garrett claims the FPS “spoon-

fed CEIA the information it needed to fix its non-compliant proposal, while giving Garrett only

vague suggestions as to how to improve its proposal.” Id. The FPS’s favoritism, Garrett argues,

improperly provided CEIA with a competitive advantage. Id. Furthermore, Garrett alleges CEIA

was unfairly advantaged because it believes CEIA learned of Garrett’s lower price before

submitting its final quote. Id.

The Government and CEIA counter that the FPS’s additional corrective action was

reasonable. Def.’s Cross-MJAR at 25–26; Int.’s Cross-MJAR at 10–12. The Government

characterizes Garrett’s complaints as a “mere disagreement” with the FPS’s chosen additional

corrective action, which “does not establish a legal basis to conclude that FPS’s corrective action

was unreasonable.” Id. at 30. Furthermore, the Government stresses that the FPS treated CEIA

and Garrett fairly while implementing the additional corrective action. Id. at 33–37. The

Government argues that the FPS conducted equal communications with both CEIA and Garrett,

informing each of the single glaring problem with each offeror’s Amendment 0007 quote. Id.

CEIA further contends it “never learned Garrett’s proposal price” until Garrett filed this bid

protest. Int.’s Cross-MJAR at 14.

30 For the reasons set forth below, this Court agrees with the Government and CEIA. The

FPS had a rational basis to implement additional corrective action. Consistent with the broad

discretion granted to agencies in implementing corrective action, this Court finds the FPS’s

decision to take additional corrective action was not arbitrary and capricious. This Court further

finds the FPS treated Garrett and CEIA fairly during the additional corrective action.

A. The FPS Had a Rational Basis to Implement Additional Corrective Action

The FPS had a rational basis to implement additional corrective action by soliciting updated

quotes from CEIA and Garrett. Garrett’s argument to the contrary is, fundamentally, a

disagreement with the FPS’s chosen additional corrective action, and is based on an improper

standard of review of agency corrective action. Accordingly, Garrett’s arguments are

unpersuasive.

i. Garrett’s Proposed Standard for Reviewing Agency Corrective Actions Is Contrary to Federal Circuit Precedent

Garrett argues “[t]he only appropriate corrective action was for FPS to rescind the improper

award to CEIA and award the contract to Garrett as the only offeror who had submitted a compliant

and acceptable proposal.” Pl.’s MJAR at 25; see also id. at 25–26 (“The only appropriate way to

remedy the Agency’s impropriety of awarding the contract to an ineligible offeror is to reevaluate

the properly submitted proposals and make a new award to the next-in-line offeror.”). Garrett

would have this Court limit the FPS’s universe of potential corrective action to a single option: re-

evaluate Garrett’s and CEIA’s Amendment 0007 quotes and award the Contract to “the next-in-

line technically acceptable” offeror, Garrett. Pl.’s Reply at 8–9. Garrett’s argument, however, is

foreclosed by Federal Circuit precedent affirming agencies’ broad discretion in pursuing corrective

action.

31 The Federal Circuit recently reinforced the principle that courts should review agency

“corrective actions under the APA’s ‘highly deferential’ ‘rational basis’ standard.” Dell Fed. Sys.,

L.P. v. United States, 906 F.3d 982, 992 (Fed. Cir. 2018) (citing Croman Corp. v. United States,

724 F.3d 1357, 1363 (Fed. Cir. 2013)). The facts in Dell Federal closely align with those of the

present action. In response to a GAO protest by unsuccessful offerors challenging the Army’s

award of a computer hardware contract, the Army decided to take corrective action. Id. at 986–

89. The corrective action entailed (1) opening discussions with all offerors, (2) requesting final

revised proposals, and (3) issuing a new award decision. Id. at 988. The initial awardees filed suit

in the Court of Federal Claims “seeking to enjoin the Army’s corrective action.” Id. at 989. The

Court of Federal Claims agreed with the initial awardees, concluding “a reasonable ‘corrective

action must narrowly target the defects it is intended to remedy.’” Id. at 991 (citing Dell Fed. Sys.,

133 Fed. Cl. at 104). The court enjoined the Army’s corrective action “because it felt there was ‘a

more narrowly targeted post-award solution that the Army entirely failed to consider.’” Id. (citing

Dell Fed., 133 Fed. Cl. at 105).

The Federal Circuit reversed, emphasizing it had “never adopted [the lower court’s]

heightened, ‘narrowly targeted’ standard.” Dell Fed., 906 F.3d at 992, 999. Instead, “corrective

action only requires a rational basis for its implementation.” Id. at 991. “The rational basis test

asks ‘whether the contracting agency provided a coherent and reasonable explanation of its

exercise of discretion.’” Id. at 992 (citing Banknote Corp., 365 F.3d at 1351). The Federal Circuit

found that “[t]he Army’s proposed corrective action to reopen procurement and allow proposals

to be revised is rationally related to the procurement’s defects.” Id. at 995. “The Army was not

legally required to address every option, but rather to provide a reasonable corrective action and

adequately explain its reasoning for doing so.” Id. at 998. The Federal Circuit accordingly held

32 the Army “rationally decided to ameliorate a defective solicitation” by holding discussions and

permitting offerors to submit final revised proposals. Id.

Dell Federal cautioned against “an overly stringent test for corrective action.” Id. at 993.

Yet, that is precisely the test Garrett argues in its brief this Court should apply to the FPS’s decision

to implement additional corrective action. See Pl.’s MJAR at 24–26; but see Oral Arg. Tr. at

11:21–22. All parties agree that the FPS had initially erred when it evaluated CEIA’s Amendment

0007 quote, which “had missing information” — specifically, no indication of compliance with

two technical specifications — “that may have precluded them from award.” AR at 933. The

procurement therefore had a defect: the FPS had awarded the Contract to an Unacceptable offeror.

Id. The contracting officer subsequently determined “corrective action was necessary,” to include

“re-evaluation” of the Amendment 0007 quotes and “additional communications with the vendors

and revised quotes.” AR at 933–34. Under Garrett’s reasoning, this Court should limit the FPS

to a single permissible corrective action: re-evaluation of Garrett’s and CEIA’s Amendment 0007

quotes and issuance of a new award to the next-in-line offeror. See Pl.’s MJAR at 25–26

(characterizing reevaluation and award to Garrett as “[t]he only appropriate corrective action” and

“[t]he only appropriate way to remedy” the FPS’s error) (emphasis added). This is precisely the

type of “overly stringent test” the Federal Circuit jettisoned in Dell Federal. The Federal Circuit

unequivocally rejected any requirement that agency corrective action must “narrowly target” the

procurement defects. Dell Fed., 906 F.3d at 991–92. A ruling for Garrett would essentially

confine the FPS to the narrowest corrective action possible to cure the procurement’s defect. Such

a decision, where the only rational corrective action is simply the narrowest possible corrective

action, is contrary to law and was expressly rejected by the Federal Circuit in Dell Federal.

33 Garrett’s flawed understanding of the standard of review for agency corrective action is

demonstrated by its reliance on pre-Dell Federal jurisprudence, most of which applied the now-

repudiated “narrowly targeted” test to agency corrective actions. 15 For instance, Garrett repeatedly

cites the Court of Federal Claims decision in Amazon Web Servs., Inc. v. United States, 113 Fed.

Cl. 102 (2013). See Pl.’s MJAR at 24; Pl.’s Reply at 7. However, the court in Amazon Web

Services applied the “narrowly targeted” test, stating that “any corrective action must narrowly

target the defects it is intended to remedy.” Amazon Web Servs., 113 Fed. Cl. at 115; see also id.

at 116 (holding agency’s corrective action irrational because “it was not narrowly tailored to

address discrete procurement defects”). Indeed, the Federal Circuit in Dell Federal faulted the

trial court for its “improper reliance” on the “defective legal standard” recited in Amazon Web

Services. Dell Fed., 906 F.3d at 993.

Similarly, Garrett relies heavily on the Court of Federal Claims decisions in Sheridan Corp.

v. United States, 95 Fed. Cl. 141 (2010), and WHR Grp., Inc. v. United States, 115 Fed. Cl. 386

(2014). See Pl.’s MJAR at 24, 25, 28 (citing Sheridan); Pl.’s Reply at 7, 8, 10 (citing Sheridan);

id. at 7, 10 (citing WHR Group). But both Sheridan and WHR Group also applied the overly

stringent “narrowly targeted” test. The court in Sheridan announced that, “[s]imply put, the

corrective action must target the identified defect.” Sheridan, 95 Fed. Cl. at 153. The court in

WHR Group, relying on Sheridan, enjoined the agency’s corrective action because a “readily

available, more narrowly-tailored remedy” existed. WHR Grp., 115 Fed. Cl. at 400 (applying

Sheridan’s “targeting test” to agency corrective action).

15 Tellingly, Garrett’s briefs never reference, cite, or acknowledge Dell Federal. See Pl.’s MJAR; Pl.’s Reply. 34 Accordingly, the FPS’s corrective action need not be “narrowly targeted” to address the

procurement’s defects. That the FPS could have addressed its errant award to a technically

Unacceptable offeror by simply re-evaluating Garrett’s and CEIA’s quotes does not mean the FPS

was required to do so; this Court will not “substitute [its] judgment” for the agency’s “by

determining whether there was another, perhaps preferable solution.” Dell Fed., 906 F.3d at 999

(quoting R & W Flammann GmbH v. United States, 339 F.3d 1320, 1322 (Fed. Cir. 2003)).

Accordingly, pursuant to Dell Federal, an agency’s corrective action need only be supported by a

rational basis.

ii. Applying the Proper Standard, the FPS Had a Rational Basis to Take Additional Corrective Action

The rational basis test asks “whether the contracting agency provided a coherent and

reasonable explanation of its exercise of discretion.” Dell Fed., 906 F.3d at 992 (quoting Banknote

Corp., 365 F.3d at 1351). Agency corrective action will be sustained if “rationally justified” by

the grounds relied on to take corrective action. Raytheon Co. v. United States, 809 F.3d 590, 595

(Fed. Cir. 2015); see also Croman Corp., 724 F.3d at 1367 (upholding agency’s corrective action

because it was “rationally based”). Review under the rational basis standard is “highly deferential”

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

consideration of relevant factors.” Adv. Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058

(Fed. Cir. 2000) (citing Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285

(1974)). Corrective action must be “reasonable under the circumstances.” PAE Applied Techs.,

LLC v. United States, 154 Fed. Cl. 490, 510–11 (2021) (quoting Superior Optical Labs, Inc. v.

United States, 152 Fed. Cl. 319, 322–23 (2021)).

The FPS’s additional corrective action — communicating with CEIA and Garrett and

evaluating revised quotes — was reasonable and supported by a rational basis. The FPS’s initial

35 corrective action entailed re-evaluating CEIA’s and Garrett’s Amendment 0007 quotes. See AR

at 918–34. That re-evaluation uncovered that “CEIA’s Technical Approach should have been

rated Unacceptable” because “CEIA failed to fill in two blocks of their [Technical Approach

Attestation], neither confirming their technical approach meets the specifications nor affirming

that they are non-compliant or why.” AR at 933. The re-evaluation also “affirmed that the

remaining evaluation under all factors for all three vendors, to include any strengths, weaknesses

and/or deficiencies” — including Garrett’s significant weakness — “remained unchanged.” AR

at 934. “Based on [the] re-evaluation,” the contracting officer “determined additional

communications with the vendors and revised quotes [were] necessary.” Id.

The contracting officer made a rational decision that addressed the procurement defect.

CEIA’s mistake was a clerical error; CEIA simply failed to indicate compliance for two technical

requirements. See AR at 641–48; see also infra note 17. Nonetheless, this clerical error rendered

CEIA’s Amendment 0007 quote, while “significantly superior” to Garrett’s, ineligible for award.

AR at 742; see also AR at 202 (Technical Approach is “pass or fail”). Garrett’s quote, on the other

hand, was technically eligible for award but included a “significant weakness” in its Management

Approach. See AR at 725–26; AR at 741–42. Amendment 0007 required that offerors to “[a]t a

minimum . . . discuss” “any methods and procedures that the contractor will use to ensure that

deliveries are completed and submitted in a timely manner to the Government, including deliveries

to OCONUS locations.” AR at 204 (emphasis in original). The TET determined Garrett’s

Amendment 0007 quote did not adequately address this topic; Garrett simply stated it “will utilize

[its] current internal order system . . . with no additional explanation.” AR at 726. This was

considered “a significant weakness” because Garrett’s “internal ordering system was not detailed,

which pose[d] possible risk . . . and could leave FPS sites without the necessary machines to meet

36 the FPS protection mission.” Id. The TET found Garrett’s lack of detail demonstrated that Garrett

“underestimated the complexity of managing the contract.” Id. The contracting officer agreed,

stating that what “[s]pecifically differentiat[ed] CEIA’s quote from Garrett’s quote was an overall

understanding of the complexity of the requirements.” AR at 742. Garrett’s “lack of detail and

planning for timely completion of deliveries and installations was a concern” to the contracting

officer and, in her view, “may cause risk of downtime at Federal Buildings.” AR at 743. Because

“[s]ecurity breaches or lapses could be catastrophic,” the contracting officer concluded there was

“significantly less performance risk associated with CEIA’s technically superior quote.” AR at

742–43.

Left with these options — CEIA’s superior quote with a clerical error and Garrett’s inferior

but technically acceptable quote with a significant weakness — the contracting officer reasonably

concluded additional communication with CEIA and Garrett was necessary. See AR at 933–34.

It was rational for the contracting officer to request improved quotes from CEIA and Garrett to

obtain the best value for the government, particularly in light of the issues with CEIA’s and

Garrett’s Amendment 0007 quotes. See AR at 205 (noting the award “will be issued to the vendor

that provides the best value”); Banknote Corp., 365 F.3d at 1355–56 (“It is well-established that

contracting officers have a great deal of discretion in making contract award decisions, particularly

when, as here, the contract is to be awarded to the bidder or bidders that will provide the agency

with the best value.”); E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996)

(“Procurement officials have substantial discretion to determine which proposal represents the best

value for the government.”). Indeed, “agencies are ‘allowed the discretion to review their own

conclusions if they conclude a mistake has been made, or if further inquiry appears appropriate,

provided the re-evaluation conforms with the solicitation.’” Guardian Moving and Storage Co.,

37 Inc. v. United States, 657 F. App’x 1018, 1023 (Fed. Cir. 2016) (quoting Glenn Def. Marine (Asia),

PTE Ltd. v. United States, 105 Fed. Cl. 541, 569 (2012)). As noted, after re-evaluation of the

offerors’ quotes, the FPS’s initial award to CEIA was deemed defective. The contracting officer

operated well within her considerable discretion to (i) correct the defective award by permitting

Garrett and CEIA to address the significant concerns with each quote, and (ii) make a new award

based on Garrett’s and CEIA’s final quotes. 16

While not binding, other Court of Federal Claims cases addressing similar corrective action

are instructive. In ANHAM FZCO, for example, the Court of Federal Claims, relying heavily on

Dell Federal, held that the agency had a rational basis to implement corrective action that

addressed broader problems beyond the discrete evaluation error necessitating corrective action.

ANHAM FZCO v. United States, 149 Fed. Cl. 427, 435–38 (2020). After an evaluation error in

the procurement, the agency implemented corrective action to “allow limited revisions to proposals

that are more than two years old in response to” changes to underlying prices and ground

conditions; the court determined the agency’s corrective action was supported by a rational basis.

Id. at 437–38. Garrett attempts to distinguish ANHAM FZCO by arguing the passage of time in

ANHAM FZCO necessitated revised proposals, while no passage of time occurred in the present

16 At oral argument, Garrett argued the FPS’s additional corrective action lacked a rational basis because such action was not necessary to correct the procurement defect. See, e.g., Oral Arg. Tr. at 14:13–20 (additional corrective action “was not necessary”), 14:17–18 (“Saying something is necessary when it’s unnecessary is not rational.”), 15:16–17 (“The contracting officer said it was necessary, and it was not necessary.”), 19:6–20, 71:3–11. Garrett’s argument highlights the improper standard for agency corrective action. As discussed above, agency corrective action is proper if it is supported by a rational basis. The argument that corrective action must be “necessary” is simply a re-formulation of the “narrowly targeted” standard unequivocally rejected by the Federal Circuit in Dell Federal. As noted infra, the contracting officer’s decision that additional corrective action was necessary is supported by a rational basis and is therefore proper.

38 case. See Pl.’s Reply at 9–10. This distinction is unavailing; indeed, the outdated proposals in

ANHAM FZCO are not unlike the Amendment 0007 quotes here. All quotes contained serious

deficiencies — outdated information in ANHAM FZCO and ineligible or problematic submissions

in this case — and the agencies each took corrective actions to update the quotes and “improve the

competitive process.” ANHAM FZCO, 149 Fed. Cl. at 436 (citing Dell Fed., 906 F.3d at 986 n.1).

More importantly, ANHAM FZCO demonstrates the critical difference between the rational basis

test and the pre-Dell Federal “narrowly targeted” test: an agency may have a rational basis to

implement corrective action that is broader than simply addressing the discrete procurement defect.

For these reasons, the FPS, therefore, had a rational basis to implement additional corrective

iii. The FPS Was Not Limited to a Single Corrective Action

Garrett argues “[t]he only appropriate corrective action was for FPS to rescind the improper

award to CEIA and award the contract to Garrett.” Pl.’s MJAR at 25. As previously noted,

Garrett’s argument applies an improper, overly stringent standard of review for agency corrective

action. See supra Discussion Section I.A.i. Tellingly, Garrett has not cited any authority holding

that after finding a defect in a best value procurement, the government is required to make the

award to the next-in-line offeror. Indeed, while not binding, prior decisions from the Court of

Federal Claims undermine Garrett’s position. In EP Productions, Inc. v. United States, for

example, only one proposal met the “threshold” acceptability requirements, while all proposals —

including the lone acceptable proposal — “contained deficiencies and weaknesses.” EP Prods.,

Inc. v. United States, 63 Fed. Cl. 220, 224 (2005). The contracting officer amended the threshold

acceptability requirements so more offerors would be eligible for award; the offeror that had

submitted the lone acceptable proposal protested, arguing it was entitled to award. Id. The court

39 disagreed, concluding “the rigid rule that plaintiff espouses here would leave the government at

the mercy of a single contractor — even one that has deficiencies in its proposal — if, as a result

of the application of certain mandatory requirements, every other competitor in a negotiated, best

value procurement were initially disqualified.” Id. at 225.

So too here; requiring that the FPS award the Contract to Garrett, despite the “significant

weakness” in its quote, when the FPS had a rational basis to take additional corrective action,

would be “illogical and finds no support in the law.” Id.; see also ManTech Telecomm. and Info.

Sys. Corp. v. United States, 49 Fed. Cl. 57, 72 (2001) (holding that awardee’s “failure to comply

with the Solicitation did not oblige the Army to exclude its proposal, but, instead, provided a basis

for further discussions and other steps to cure the identified defects”), aff’d, 30 F. App’x 995, 995

(Fed. Cir. 2002) (finding “no error in the thorough and well-reasoned decision of the Court of

Federal Claims”); Guardian Moving and Storage, 657 F. App’x at 1023 (quoting ManTech’s

conclusion that in a “negotiated procurement, [if] an offeror’s proposal does not comply with the

solicitation’s requirements, an agency is not required to eliminate the awardee from the

competition, but may permit it to correct its proposal”) (alteration in original). Considering the

contracting officer agreed with the TET that Garrett had failed to address “a minimum requirement

of the Management Approach submittal,” which could “cause risk of downtime at Federal

Buildings,” it was rational for the FPS to have addressed the significant weakness in Garrett’s

Amendment 0007 quote. AR at 742–43; see also ManTech, 49 Fed. Cl. at 80 (recognizing the

discretion afforded to an agency in negotiated procurements involving both “highly technical

requirements” and “national security concerns”).

Yet, setting Garrett’s flawed argument aside, Garrett is also incorrect that the “only

appropriate” corrective action was for the FPS to award the Contract to Garrett. See ManTech, 49

40 Fed. Cl. at 79 (“[Protestor] is flatly wrong in arguing that the only appropriate ‘corrective action’

here is to award it the contract.”). The FPS had other courses of corrective action available to it,

further demonstrating the reasonableness of its ultimate approach. For example, Amendment 0007

stated the FPS may “communicate with vendors regarding their quotes and seek corrections.” AR

at 205. Amendment 0007 further stated the FPS “may conduct communications with one, some,

none, or all vendors at its discretion.” Id. Rather than undertaking additional corrective action,

the FPS could simply have communicated with CEIA and requested a correction to CEIA’s

Technical Approach Attestation. Indeed, Federal Acquisition Regulation (FAR) Part 15.306(a)(2)

expressly permits that offerors “be given the opportunity to clarify certain aspects of proposals . .

. or to resolve minor or clerical errors.” FAR 15.306(a)(2). While the Solicitation was not

conducted pursuant to FAR Part 15, the parties acknowledge FAR Part 15’s framework,

particularly relating to communications between the agency and offerors, is instructive. See Oral

Arg. Tr. at 29:8–15; Pl.’s MJAR at 27 n.5; Def.’s Cross-MJAR at 33 n.11, 35–36; see also Centerra

Grp., LLC v. United States, 138 Fed. Cl. 407, 413 (2018) (“[T]he definitions of clarifications and

discussions in FAR 15.306 are widely applied in a variety of procurement contexts.”); infra

Discussion Section I.B. The FPS could have asked CEIA to correct the clerical error in its

Technical Approach Attestation and confirm that its metal detectors comply with the Solicitation’s

technical requirements. 17 Such a correction would have cured the procurement defect, as CEIA

17 It is evident that the errors in CEIA’s Technical Approach Attestation in its Amendment 0007 quote were clerical errors. CEIA’s first, pre-Amendment 0007 quote certified compliance with the very requirements CEIA neglected to certify in the Technical Attestation spreadsheet attached to its Amendment 0007 quote. Compare AR at 414 (CEIA indicating compliance with “Operational Availability” requirement), and AR at 419 (CEIA indicating compliance with data/information processing and storing features), with AR at 642, and 646 (CEIA failing to indicate compliance with those same technical requirements in its Amendment 0007 quote’s Technical Approach Attestation).

41 would have certified — as it did in its final quote — that its metal detectors do indeed comply with

the Solicitation’s technical requirements. See AR at 970–78. It also would have been reasonable

for the FPS to clarify with CEIA, whose quote was “significantly superior” to Garrett’s and carried

“significantly less performance risk” than Garrett’s, that its equipment complied with the

Solicitation’s technical requirements. AR at 742–43; see DynCorp Int’l LLC v. United States, 76

Fed. Cl. 528, 540 (2007) (“It was not unreasonable for the Air Force to seek information only from

[awardee] to clarify aspects of [awardee’s] proposal or to correct minor errors in [awardee’s]

proposal, if the Air Force planned, based on its evaluation of initial proposals, to award the contract

to [awardee] without seeking revisions of either proposal.”). It would be illogical to find that the

FPS had a rational basis to seek clarifications from CEIA, yet nonetheless hold the FPS had no

rational basis for the additional corrective action the FPS ultimately implemented, which permitted

both CEIA and Garrett equal opportunity to update and improve their quotes.

Although Dell Federal suggests that defects relating to spreadsheet ambiguities, resulting in “submission of technically unacceptable offers,” may indicate substantive errors, rather than clerical errors, this aspect of Dell Federal is distinguishable from the present case. Dell Fed., 906 F.3d at 995. First, the spreadsheet ambiguities in Dell Federal were clearly substantive in nature and prevented offerors from “properly identify[ing]” which equipment the offeror had included in its proposal. Id. That is not the case here, as CEIA offered the same model metal detector in each of its quotes. See AR at 377, 412–32 (CEIA’s initial quote offering 02PN20 metal detector); AR at 640 (CEIA’s Amendment 0007 quote offering 02PN20 metal detector); AR at 970 (CEIA’s final quote offering 02PN20 metal detector). Second, CEIA indicated its metal detectors complied with the Solicitation’s technical requirements in parts of its submission other than in its Technical Approach Attestation. As noted, CEIA’s initial, pre-Amendment 0007 quote indicated that its metal detectors complied with the Solicitation’s technical requirements. See AR at 414, 419. Also, CEIA’s Amendment 0007 quote certified its proposed metal detectors are “fully compliant with all specified requirements.” AR at 640. In sum, CEIA simply failed to properly fill out two boxes in the Technical Approach Attestation, despite clearly stating elsewhere that its equipment was compliant. This is convincing evidence that CEIA’s failure to complete the Technical Approach Attestation was a clerical error, not a substantive error. 42 iv. The Agency’s Reasoning is Reasonably Discernible

At oral argument, Garrett suggested the FPS did not provide a “coherent and reasonable

explanation” of its decision to implement additional corrective action. Oral Arg. Tr. at 14:1–20,

76:23–77:16; see Dell Fed., 906 F.3d at 992–94. This Court disagrees. As part of the re-evaluation

of CEIA’s and Garrett’s Amendment 0007 quotes, the TET “affirmed that the remaining

evaluation under all factors for all three vendors, to include any strengths, weaknesses and/or

deficiencies remain unchanged.” AR at 934. Critically, the TET’s re-evaluation affirmed Garrett’s

Management Approach contained a significant weakness. AR at 924. The contracting officer then

decided, “[b]ased on this re-evaluation,” that additional corrective action was necessary. AR at

934. The contracting officer exercised her discretion to take corrective action based on CEIA’s

technically Unacceptable quote and Garrett’s “lacking” proposal with a “significant weakness.”

AR at 741–43. This is a sufficiently “coherent and reasonable” explanation for the agency’s

decision to implement additional corrective action. This Court must “uphold a decision of less

than ideal clarity if the agency’s path may reasonably by discerned.” Bowman Transp., 419 U.S.

at 285–86. “An explicit explanation” of an agency’s decision “is not necessary . . . where the

agency’s decisional path is reasonably discernible.” Wheatland Tube Co. v. United States, 161

F.3d 1365, 1369–70 (Fed. Cir. 1998). Contrary to Garrett’s argument, given “the individualized

agency reasons for taking corrective action, the court’s review must be based on the entire

administrative record before the court.” Novak Birch, Inc. v. United States, 132 Fed. Cl. 578, 602

(2017); see also Harmonia Holdings Grp., LLC v. United States, 160 Fed. Cl. 674, 687 n.7 (2022)

(sufficient that “the record as a whole” allows the agency’s path “to be ‘reasonably discerned’”)

(quoting SigNet Techs., Inc. v. United States, 154 Fed. Cl. 396, 408 (2021)). The contracting

officer and TET exhaustively documented the strengths and weaknesses of CEIA’s and Garrett’s

43 Amendment 0007 quotes. See, e.g., AR at 717–57. The contracting officer and TET also explained

the decision to take corrective action and the need for additional corrective action, as well as the

precise steps the FPS would take in implementing the additional corrective action. See, e.g., AR

at 918–34. Based on the record, this Court concludes the “agency’s decisional path is reasonably

discernable.” Wheatland Tube, 161 F.3d at 1369–70. In light of the procurement defect, the FPS

opted to solicit updated proposals, permit CEIA and Garrett to fix significant issues in their

Amendment 0007 quotes, and finally evaluate those offerors’ updated, final quotes. The FPS had

a sufficiently-documented rational basis for implementing additional corrective action.

v. No Evidence of Bad Faith

Finally, while not explicit, Garrett’s argument is tinged with accusations of bad faith on

the part the FPS. Garrett accuses the FPS of “manipulat[ing] the process in an effort to

retroactively justify its award to CEIA.” Pl.’s MJAR at 6–7. Garrett claims the FPS’s additional

corrective action “was specifically tailored to allow CEIA a ‘second bite at the apple.’” Id. at 24;

see also id. at 25 (“FPS . . . decided to take corrective action under the guise that it was responding

[to] Garrett’s GAO protest . . . .”); Pl.’s Reply at 8 (“FPS made its corrective action decision under

the guise of remedying FPS’s evaluation errors when, in reality, it was nothing more than a tool

for CEIA to correct its mistakes.”). Garrett more or less accuses the FPS of putting its finger on

the scale to ensure the award would go to CEIA.

It is well-established that there is a strong “presumption that government officials act in

good faith.” Am-Pro Prot. Agency, Inc. v. United States, 281 F.3d 1234, 1239 (Fed. Cir. 2002).

Overcoming this presumption “requires ‘well-nigh irrefragable proof’” that government officials

did not act in good faith. Croman Corp., 724 F.3d at 1364 (quoting Kalvar Corp., Inc. v. United

States, 543 F.2d 1298, 1301 (Ct. Cl. 1976)). To the extent Garrett argues the FPS conducted the

44 Solicitation in bad faith, there is absolutely no evidence in the record to support this claim — nor

does Garrett cite any evidence. Nor will this Court infer bad faith. Garrett appears to suggest the

procurement’s facts necessarily imply bad faith. In other words, the FPS’s decision to implement

additional corrective action cannot be explained by anything other than bad faith. As noted,

however, the FPS had a rational basis to implement additional corrective action. Garrett’s gestures

towards bad faith, with “no corroborating evidence,” fall well short of the “well-nigh irrefragable”

standard. Am-Pro Prot. Agency, 281 F.3d at 1243.

B. The FPS Treated Garrett and CEIA Fairly When Implementing the Additional Corrective Action

Garrett next argues that even if the FPS’s decision to take additional corrective action was

proper, its implementation of the additional corrective action was unfair and “[p]rovided CEIA

with an [u]nwarranted [c]ompetitive [a]dvantage.” Pl.’s MJAR at 26. Garrett contends that the

communications between the FPS and CEIA and Garrett, respectively, were unequal. According

to Garrett, the FPS “spoon-fed” CEIA everything CEIA needed to fix its quote but provided Garrett

only “vague suggestions” about Garrett’s own deficiencies. See Pl.’s Reply at 11; see generally

Pl.’s MJAR at 26–29. To support its contention, Garrett points to the FPS’s alleged failure to

inform Garrett of the FPS’s concern with Garrett’s use of subcontractors on its Past Performance

projects. See Pl.’s MJAR at 26–28; Pl.’s Reply at 11–13; AR at 740; AR at 742–43.

Garrett’s arguments are unpersuasive. The FPS implemented the additional corrective

action fairly. The contracting officer determined, “[b]ased on [the] re-evaluation” of CEIA’s and

Garrett’s Amendment 0007 quotes, that “additional communications with the vendors and revised

quotes are necessary.” AR at 934. The contracting officer also decided that “[c]ommunication

will be released to [CEIA and Garrett] to correct, update and/or improve their existing proposals.”

45 Id. This communication would include “[i]nformation . . . on any weaknesses or deficiencies

found specific to their submitted proposals.” Id.

The contracting officer then informed CEIA and Garrett of the glaring problem in each

respective proposal. See AR at 935–36; AR at 946–47. The contracting officer informed Garrett

of the “significant weakness” in Garrett’s Management Approach. AR at 935. The contracting

officer specified that “[w]hile Garrett’s quote stated that it has sufficient inventory to fulfill the

instant requirement, the quote did not lay out the procedural or logistical methods to ensure it will

be accomplished in a timely manner.” AR at 935–36. Garrett’s quote reflected it would use its

internal procedures, but “those internal procedures were not described in Garrett’s quote.” AR at

936. Likewise, the contracting officer informed CEIA its quote “did not confirm that its machine

met all minimum specifications required in [the] Technical Approach Attestation,” which

“render[ed] [CEIA’s] quotation Unacceptable.” AR at 946 (emphasis omitted). The contracting

officer flagged the two technical requirements at issue. AR at 946–47 (noting “blank mandatory

attestation items” for “Operational Availability” and “Test Functions”).

In sum, Garrett’s argument questions whether the FPS conducted fair communications with

Garrett and CEIA.

i. FAR Part 15, Though Not Binding, Is Instructive

A threshold issue is the standard this Court should apply. FAR Part 15 generally

“prescribes policies and procedures” for negotiated acquisitions. FAR 15.000. Courts typically

use the procedures outlined in FAR 15.3, particularly FAR 15.306, to analyze the propriety of

communications between agencies and offerors. FAR 15.3 “prescribes policies and procedures

for selection of a source or sources in competitive negotiated acquisitions;” and FAR 15.306 more

specifically governs “exchanges with offerors after the receipt of proposals.” See FAR 15.300,

46 15.306. It is undisputed, however, that the Solicitation was not conducted pursuant to FAR Part

15. See, e.g., Oral Arg. Tr. at 29:8–15 (Garrett’s acknowledgement that “the specific rules for

FAR Part 15 procurements don’t apply here”). Instead, the Solicitation was conducted “in

accordance with FAR 12 and 13.5 procedures.” AR at 9. Relevant here, FAR Part 13.5 “provides

a procurement mechanism that reduces an agency’s procedural requirements for reviewing . . .

proposals.” Colonna’s Shipyard, Inc. v. United States, 152 Fed. Cl. 631, 640 (2021). The

Solicitation was clear that “exchanges [occurring] pursuant to this acquisition . . . are not to be

construed or interpreted under the provisions of FAR 15.3.” AR at 205. The contracting officer

similarly emphasized communications between it and the offerors “will not be considered

discussions” under FAR 15.3. AR at 935, 946. This Court must therefore determine what

standards apply to the FPS’s communications with Garrett and CEIA. See Pl.’s MJAR at 27 n.5

(acknowledging that the FPS “correspondence with the offerors notes that the discussions were

not to be construed with the strict procedures of FAR Part 15”); Def.’s Cross-MJAR at 33 n.11

(noting “this procurement was conducted under FAR Part 13,” not Part 15).

Both parties agree that communications must be fair. See FAR 1.102(b)(3) (agencies must

conduct procurements “with integrity, fairness, and openness”); Pl.’s MJAR at 27 n.5 (“[T]he

discussions still must be fair.”); Def.’s Cross-MJAR at 33 n.11 (“The United States concurs with

Garrett that these communications must still be fair.”). Both parties also cite approvingly to the

Court of Federal Claims decision in Centerra Group, LLC v. United States, 138 Fed. Cl. 407

(2018). See Pl.’s MJAR at 27 n.5; Def.’s Cross-MJAR at 33 n.11. In Centerra, though the

procurement was not conducted pursuant to FAR Part 15, the court explained that when

“discussions” occur, “the overwhelming weight of authority is that the agency must conduct any

future discussions in conformance with the fairness principles enshrined in FAR Part 15.”

47 Centerra Grp., 138 Fed. Cl. at 414. Put differently, “although adherence to FAR Part 15

procedures is not required,” it is permissible for the court to assess agency-offeror discussions

using “the fairness principles enshrined in FAR Part 15.” Id. This Court agrees that approach is

reasonable. Given the parties’ agreement that discussions must be fair; the parties’ mutual

endorsement of Centerra’s use of the “fairness principles enshrined in FAR Part 15;” and the

parties’ citations to case law applying FAR Part 15 principles, this Court will use FAR Part 15

principles to guide its evaluation of the FPS’s communications with CEIA and Garrett. See, e.g.,

Pl.’s MJAR at 27 (citing DMS All-Star Joint Venture v. United States, 90 Fed. Cl. 653 (2010)); id.

n.5 (citing IAP Worldwide Servs., Inc. v. United States, 159 Fed. Cl. 265 (2022)); Pl.’s Reply at

11 (citing Precision Asset Mgmt. Corp. v. United States, 135 Fed. Cl. 342 (2017)); Def.’s Cross-

MJAR at 35–36 (applying FAR 15.306).

This Court emphasizes, however, that the FPS need not strictly abide by the procedures

outlined in FAR Part 15. The Solicitation was conducted in accordance with FAR 13.5, titled

“Simplified Procedures for Certain Commercial Products and Commercial Services.” FAR 13.5.

The purpose of these simplified acquisition procedures “is to vest contracting officers with

additional procedural discretion and flexibility” so that acquisitions may proceed “in a simplified

manner that maximizes efficiency and economy and minimizes burden and administrative costs

for both the Government and industry.” FAR 13.500(a). Though the contracting officer is

constrained by the requirement of fairness, FAR Part 13 nonetheless affords “discretion and

flexibility” to contracting officers. See Seaborn Health Care, Inc. v. United States, 55 Fed. Cl.

520, 526–27 (2003) (“[T]he emphasis under [FAR Part 13] is on flexibility and discretion, not

formal requirements.”); see also Colonna’s Shipyard, 152 Fed. Cl. at 640 (FAR Part 13.5 “reduces

an agency’s procedural requirements for reviewing offerors’ proposals”); Dubinsky v. United

48 States, 43 Fed. Cl. 243, 254 (1999) (noting, in dicta, that if “simplified procedures under Part 13”

were used, “many of plaintiff’s concerns about the conduct of discussions in this procurement

would be irrelevant”). At a basic level, “[t]he simplified acquisition procedures in Part 13 allow

contracting officers considerable flexibility in the contract award process.” Dubinsky, 43 Fed. Cl.

at 254. Therefore, though this Court intends to use jurisprudence regarding FAR Part 15 as a

guide, this Court will not ignore the enhanced flexibility contracting officers receive in

procurements under FAR Part 13.

ii. The FPS’s Communications Were Fair

FAR Part 15 indicates that communications, specifically discussions, between an agency

and offerors must be fair and meaningful. See, e.g., CRAssociates, Inc. v. United States, 102 Fed.

Cl. 698, 715–17 (2011) (in the context of FAR Part 15, noting that agencies must “conduct

meaningful discussions with all responsible offerors” that do not “favor one offeror over another”)

(internal citations and quotations omitted). “Meaningful discussions ‘generally lead offerors into

the areas of their proposals requiring amplification or correction.’” Ceres Env’t Servs., Inc. v.

United States, 97 Fed. Cl. 277, 309 (2011) (quoting Adv. Data Concepts, Inc. v. United States, 43

Fed. Cl. 410, 422 (1999)). Discussions should generally “address weaknesses or deficiencies in

an offeror’s proposal that, unless corrected, would preclude award.” Patriot Taxiway Indus., Inc.

v. United States, 98 Fed. Cl. 575, 587–88 (2011). However, there is “no requirement that all areas

of a proposal which could have a competitive impact be addressed in discussions.” Dynacs Eng’g

Co., Inc. v. United States, 48 Fed. Cl. 124, 131 (2000). The government “need not discuss every

aspect of the proposal that receives less than the maximum score or identify relative weaknesses

in a proposal that is technically acceptable but presents a less desirable approach than others.”

Acra, Inc. v. United States, 44 Fed. Cl. 288, 295 (1999) (internal citations and quotations omitted).

49 As noted, the contracting officer emphasized the communications between herself and

CEIA and Garrett should “not be considered discussions” subject to the stringent requirements

outlined in FAR 15.3. AR at 935, 946. Nevertheless, the contracting officer’s communications

with CEIA and Garrett were meaningful and did not “favor one offeror over another.”

CRAssociates, 102 Fed. Cl. at 715–17 (internal citations and quotations omitted). In her decision

to take additional corrective action, the contracting officer stated that “[i]nformation . . . on any

weaknesses or deficiencies” in CEIA’s and Garrett’s respective proposals would be communicated

to each. AR at 934. That is precisely what the contracting officer did. She informed CEIA of the

omission in its Technical Approach Attestation, which rendered CEIA’s quote Unacceptable. See

AR at 946–47. She likewise informed Garrett of the “significant weakness” in its Management

Approach. See AR at 935–36. The contracting officer was also equally descriptive of each

offerors’ weakness. She highlighted the two technical specifications with which CEIA did not

indicate compliance. See AR at 946–47 (noting “two blank mandatory attestation items”

Operational Availability under Line 25 and Test Functions under Line 52). She also described to

Garrett the significant weakness in its Management Approach, specifically Garrett’s failure to (1)

“lay out procedural or logistical methods to ensure” deliveries are completed and delivered in a

timely manner, including to OCONUS locations, and (2) describe Garrett’s “internal procedures”

for ensuring timely delivery. See AR at 935–36. The contracting officer provided equal feedback

to Garrett and CEIA.

Contrary to Garrett’s allegation, the FPS did not provide only “vague suggestions as to how

to improve [Garrett’s] proposal.” Pl.’s Reply at 11. The contracting officer described her concerns

with Garrett’s Management Approach and provided sufficient information for Garrett to improve

this aspect of its quote. Indeed, upon updating its quote, Garrett turned the “significant weakness”

50 portion of its quote into a strength. Compare AR at 726 with AR at 991–94. Whereas Garrett’s

Amendment 0007 quote “provided no information” regarding the FPS’s delivery requirements,

see AR at 726, Garrett’s final quote adequately addressed Garrett’s ability “to meet the initial

delivery requirements on time” as well as “communication with the vendor, customer training and

technical support after initial delivery as well as delivery of OCONUS destinations.” AR at 993.

Garrett’s updated quote also detailed Garrett’s “extensive inventory” of metal detectors and its

current “level of production above capacity in order to meet unusual urgent request[s] or large

order[s] and surges in demand;” the TET found “[t]he number of units able to be produced in short

time frames was a [sic] considered a strength.” AR at 992–93. Garrett used the contracting

officer’s communication to radically improve its quote; it cannot now seriously contend the FPS

offered only “vague suggestions” for improvement. Pl.’s Reply at 11. These facts support that

the contracting officer treated CEIA and Garrett fairly during her communications with each

offeror.

iii. Communication Concerning Garrett’s Past Performance

Garrett’s primary complaint with the FPS’s communications relates to the Past

Performance factor. See Pl.’s MJAR at 27–28 (“Garrett should not be faulted for failing to clarify

[the Past Performance] portion of its proposal that it was unaware needed clarifying.”); Pl.’s Reply

at 11 (“Following the [additional] corrective action, FPS . . . only alerted Garrett to its weakness

in Management Approach — not Relevant Past Performance.”). Garrett claims the

communications were unfair because the FPS did not inform Garrett of the concerns with Garrett’s

Past Performance, specifically Garrett’s past use of subcontractors. See Pl.’s MJAR at 27–28; Pl.’s

Reply at 11–13. This Court disagrees, for several reasons.

51 First, the FPS was not obligated to communicate to Garrett its apparent concerns with

Garrett’s prior use of subcontractors. The TET and contracting officer concluded Garrett’s past

projects did not fully meet the complexity of the Solicitation and were therefore only partially

relevant. See AR at 722–25; AR at 740–41. They made such a conclusion because Garrett had

used subcontractors for certain aspects of its submitted past projects, which made it difficult to

identify “which portion of work was perform[ed] by subs and which work was accomplished by

Garrett itself;” therefore, “much of the complexity of the [Solicitation],” such as “delivery,

maintenance, training, warranties, [and] geographic dispersion,” was “not always identifiably met

by” Garrett. AR at 741.

Garrett demands too much from the contracting officer’s communication. Even under FAR

Part 15, there is “no requirement that all areas of a proposal which could have a competitive impact

be addressed in discussions.” Dynacs Eng’g, 48 Fed. Cl. at 131. Generally, only severe

deficiencies that “would preclude award” should be addressed. Patriot Taxiway Indus., 98 Fed.

Cl. at 587–88. Garrett has not demonstrated that the agency’s concerns with Garrett’s Past

Performance were preclusive of an award. For example, there was no “adverse past performance”

that reflected poorly on the quality of Garrett’s work; indeed, all three reviewers for Garrett’s past

projects deemed the quality Garrett’s performance as “highly acceptable.” See AR at 725; AR at

741; see also FAR 15.306(d)(3) (requiring contracting officer discuss “adverse past performance

information” during discussions). Rather, Garrett’s use of subcontractors made it difficult for the

TET and contracting officer to confirm Garrett had experience completing projects of similar

complexity. See AR at 725; AR at 740–43. There was, therefore, some “risk associated with

Garrett’s past performance particularly when demonstrating similar complexity.” AR at 741–42.

Furthermore, the TET did not characterize Garrett’s Past Performance concerns as either a

52 deficiency or a weakness. See AR at 725 (TET not assigning weakness or deficiency to Garrett’s

Past Performance); AR at 740–42 (contracting officer concluding there was “less risk associated

with” CEIA’s Past Performance); see also FAR 15.306(d)(3) (requiring contracting officer discuss

“deficiencies” and “significant weaknesses” during discussions). Overall, Garrett’s Past

Performance submission was only partially relevant to the Solicitation, but Garrett’s Past

Performance issues were neither deficiencies nor significant weaknesses necessitating discussion

by the FPS. See, e.g., Technica, LLC, B-417177 et al., 2019 WL 1514000, at *4 (Comp. Gen. Mar.

21, 2019) (“[A]n agency’s conclusion that a particular past performance example is not relevant

does not rise to the level of a deficiency or significant weakness, nor does such a determination

constitute adverse past performance information to which the protestor has not had an opportunity

to respond.”).

In contrast, CEIA’s past performance was exceptional, demonstrating “highly acceptable”

work on three fully relevant projects, including the incumbent project with requirements “almost

identical to the instant requirements.” See AR at 727–29 (“[T]he level of performance risk

associated with [CEIA’s] proposal is substantially less than the level expected from a competent

vendor.”); AR at 742–43. CEIA also had 16 CPARS reports indicating “Satisfactory to

Exceptional” work in prior federal contracts. AR at 729. CEIA’s Past Performance was thus

significantly superior to Garrett’s; the FPS was not obligated to identify to Garrett “relative

weaknesses” that simply “present[] a less desirable approach” than CEIA. Acra, 44 Fed. Cl. at

295. Accordingly, for this reason as well, it was permissible and fair for the FPS to refrain from

discussing Past Performance during its communications with Garrett.

Second, while FPS was not required to discuss Garrett’s Past Performance, the FPS had, in

fact, already informed Garrett of concerns with its Past Performance. After the first award to

53 CEIA, Garrett requested from the FPS an explanation of award. See AR at 851–54. The FPS

provided an explanation letter, which described “[i]n general terms, the reason(s) the offeror’s

proposal was not selected for award.” AR at 851. The letter stated that for Past Performance,

Garrett’s projects #1 and #3 “were determined to be partially relevant, in that they fully meet scope

and magnitude; however, they did not fully meet complexity.” AR at 852. Garrett was thus on

notice — even before the FPS took additional corrective action — that its Past Performance

projects were only partially relevant because they did not fully meet the complexity of the

Solicitation’s requirements.

Indeed, in its communication to Garrett pursuant to the additional corrective action, the

FPS advised that Garrett “may also wish to reference the government’s brief explanation letter . .

. dated February 10, 2022, for additional information about the evaluation of [Garrett’s] quote,”

including the FPS’s feedback regarding Past Performance and complexity. AR at 935. Garrett

presumably heeded the FPS’s recommendation, because in a follow-up correspondence to the FPS,

a Garrett representative noted that “prior feedback” indicated that “‘greater complexity’ is desired

with past performance.” AR at 943–44. The Garrett representative asked “what specific criteria

points of complexity are evaluators seeking as the standards for complexity,” to which the

contracting officer cautioned “[i]t is the vendor’s responsibility to carefully review the current

solicitation requirements and submit past performance projects/contracts that most closely align

with the scope, magnitude, and complexity of the instant requirement.” Id. Garrett was therefore

aware, prior to submitting its final quote pursuant to the additional corrective action, that its Past

Performance submission was lacking on complexity; yet Garrett chose not to address that aspect

of its quote upon resubmission. See AR at 987 (during evaluation of final quotes, TET noting

“Garrett did not resubmit for Past Performance”). Although the FPS informed Garrett that its past

54 projects did not fully meet the Solicitation’s complexity, Garrett ignored the FPS’s feedback and

did not improve its Past Performance submission. Garret’s complaint of unfairness rings hollow.

While it is accurate that the FPS did not expressly cite Garrett’s use of subcontractors as

the root of Garrett’s Past Performance issue, that is of no moment here. See, e.g., Pl.’s MJAR at

19 (“The Agency had not raised [the subcontractor] concern to Garrett before.”). An agency is not

required to spell out, in painstaking detail, each area of a proposal that an offeror might improve.

See Labat-Anderson, Inc. v. United States, 42 Fed. Cl. 806, 835 (1999) (agency “not obligated to

conduct all-encompassing discussions” or “address in express detail all inferior or inadequate

aspects of a proposal”) (internal citations and quotations omitted). It is “not incumbent on the

government to unduly assist or ‘spoon-feed’ an offeror.” Cube Corp. v. United States, 46 Fed. Cl.

368, 383 (2000). As a sophisticated entity, Garrett was responsible for reviewing the Solicitation’s

requirements and demonstrating to the FPS that Garrett could best meet those requirements.

Indeed, the Solicitation plainly states that an offeror’s use of subcontractors in prior projects may

impact the offeror’s Past Performance rating. For example, the Solicitation says “[w]here a

contractor provides projects performed by . . . sub-contractor’s [sic] . . . the Government will

evaluate the past performance of its quoted . . . sub-contractor . . . separately and consider its

findings about [the subcontractor] . . . when determining the risk associated with the quote and

assigning the appropriate rating.” AR at 203. Furthermore, the Solicitation states that a

subcontractor’s performance on an offeror’s past project may be segregated from the offeror’s

performance; it warns, “The Government may decide not to attribute to the prime contractor, as an

organization, the past performance of its . . . sub-contractor’s [sic].” Id. The Solicitation is thus

clear that using subcontractors may impact an offeror’s rating. Garrett was responsible for

understanding the Solicitation and drafting its Past Performance submission accordingly. The FPS

55 assisted Garrett by informing Garrett that its Past Performance lacked complexity; however, the

FPS was not further required to “spoon-feed” Garrett the reasons its Past Performance lacked

complexity. See Cube Corp., 46 Fed. Cl. at 383.

At base, the FPS was “not obligated to provide the type of specific guidance” Garrett

demands. WorldTravelService v. United States, 49 Fed. Cl. 431, 439 (2001). The FPS need only

“lead[] the offerors into the areas of their proposals requiring amplification” rather than “spoon-

feed an offeror as to each and every item that must be revised, added, or otherwise addressed to

improve a proposal.” Id. at 439–40 (internal citations and quotations omitted). The FPS satisfied

its obligation to treat Garrett fairly.

iv. Garrett Provides No Evidence that CEIA Knew of Garrett’s Lower Price

Finally, Garrett argues, without evidence, that the additional corrective action was

implemented unfairly because CEIA became aware of Garrett’s lower price prior to submitting its

final quote. See Pl.’s MJAR at 28 (“Garrett’s GAO protest notified CEIA of the fact that its

proposal was significantly higher than Garrett’s . . . .”). Garrett’s argument is dubious, based on

the simple observation that CEIA did not adjust its quoted price in response to the additional

corrective action. See AR at 739–40 (CEIA’s Amendment 0007 quote price is $5,395,130); AR

at 1019–20 (CEIA’s final quote, after additional corrective action, is $5,395,130). Indeed, a

challenger cannot demonstrate illicit knowledge of a competitor’s pricing merely by pointing out

that the winning offeror simply maintained its price during corrective action. This Court declines

to infer such pricing knowledge on gossamer evidence. Further, even if CEIA had known of

Garrett’s lower price, it is difficult to understand how this prejudiced Garrett when it is undisputed

that CEIA did not use this alleged knowledge to change its price to make its submission more

favorable. Garrett’s response to this problematic fact is that because Garrett increased its price to

56 account for inflation, CEIA “effectively lower[ed] its price.” Pl.’s MJAR at 29. This argument is

not convincing. It is undisputed that CEIA did not lower its price. Compare AR at 739-40 (CEIA’s

Amendment 007 quote price), with AR at 1019 (CEIA’s final quote). An offeror does not

“effectively lower” their price when a competitor increases their price during corrective action.

Unsurprisingly, Garrett cites no persuasive authority for its contention, and this Court can find no

merit in the argument.

The foregoing analysis is largely academic, however, because, as noted, there is no

evidence that CEIA knew about Garrett’s lower price. Indeed, the evidence points to the contrary.

Garrett does not cite to the Administrative Record or proffer any evidence to support its position.

While not dispositive, CEIA submitted a declaration from Luca Cacioli, CEIA’s CEO and Director

of Sales to reaffirm what the Administrative Record reflects — that CEIA had no knowledge of

Garrett’s lower price during the procurement process. See Declaration of Luca Cacioli (ECF No.

23-1) (Cacioli Decl.) at ¶ 2. Mr. Cacioli averred that he is “involved in almost every bid that CEIA

submits, particularly those that respond to solicitations from the Federal Government.” Id. at ¶ 5.

Mr. Cacioli further states that he “provided input on both the price and technical proposals that

CEIA submitted in response to” the Solicitation “and gave final approval for these submissions.”

Id. at ¶ 6. Mr. Cacioli stated that CEIA “never learned of Garrett’s proposed price” and did not

learn that Garrett’s price was “significantly lower” than CEIA’s “until CEIA received the redacted

MJAR.” Id. at ¶¶ 10–11. CEIA’s CEO’s sworn testimony reaffirms the lack of evidence in the

Administrative Record or otherwise concerning CEIA’s alleged illicit pricing knowledge. Id. at ¶

7.

Garrett asserts that Mr. Cacioli’s declaration “hardly establishes that the CEIA personnel

who determined CEIA’s pricing were unaware of what had been revealed about Garrett’s pricing.”

57 Pl.’s Reply at 7 n.1. But Garrett swaps the burden of proof. It is Garrett’s burden to prove that it

was unfairly prejudiced by CEIA’s knowledge of Garrett’s pricing. It is not CEIA’s burden to

disprove Garrett’s speculation that someone — anyone — at CEIA knew Garrett’s pricing. See

Bannum, 404 F.3d at 1355–57. It remains undisputed that Garrett failed to present any evidence

that CEIA knew about Garrett’s pricing. It is evident that Garrett’s argument is based on mere

speculation.

Accordingly, for the reasons explained above, FPS implemented the additional corrective

action fairly. The FPS treated Garrett and CEIA fairly, and did not provide CEIA with a

competitive advantage during the procurement process.

II. The FPS’s Substantive Evaluations of Garrett’s and CEIA’s Final Quotes

Garrett next argues the FPS’s substantive evaluation of Garrett’s and CEIA’s final quotes

was arbitrary and capricious. Garrett alleges (1) the FPS’s evaluation and rating of Garrett’s Past

Performance was improper, see Pl.’s MJAR at 29–30; (2) the FPS’s evaluation and rating of

Garrett’s Management Approach was improper, see id. at 30–32; and (3) the FPS’s best value

determination was flawed, see id. at 32–33. For the reasons explained below, this Court largely

disagrees and rejects Garrett’s arguments. This Court holds that, with one exception, the FPS’s

evaluation of Garrett’s and CEIA’s final quotes, including its best value analysis, was proper and

not arbitrary and capricious.

A. The FPS’s Past Performance Evaluation Was Not Arbitrary and Capricious

Garrett first argues the FPS’s “criticism of Garrett’s Past Performance is unreasonable.”

Pl.’s MJAR at 29. Garrett claims the FPS’s concern with Garrett’s past use of subcontractors “is

inconsistent with the criteria set forth” in the Solicitation, which “did not limit the amount of

subcontracting the contractor will be permitted nor indicate that the use of subcontractors would

58 be considered, favorably or unfavorably.” Id. at 30. Therefore, Garrett says, “[t]he alleged

weaknesses in Garrett’s Relevant Past Performance are unreasonable and unfounded.” Id. The

Government emphasizes “the highly deferential standard [used] to determine whether an agency’s

evaluation of past performance was reasonable” and argues “FPS’s evaluation of Garrett’s Past

Performance was entirely reasonable, and in accordance with the terms of the Solicitation.” Def.’s

Cross-MJAR at 40; see generally id. at 37–40.

Garrett’s challenge to the FPS’s Past Performance evaluation faces a steep, uphill climb.

“Agency past performance evaluations are entitled to ‘the greatest deference possible.’” Alisud-

Gesac Handling – Servisair 2 Scarl v. United States, 161 Fed. Cl. 655, 668 (2022) (quoting Gulf

Grp. Inc v. United States, 61 Fed. Cl. 338, 351 (2004), abrogated in part on other grounds

recognized by Telos Corp. v. United States, 129 Fed. Cl. 573, 576 n.2 (2016)); see also Glenn Def.

Marine, 720 F.3d at 909 (agencies have “broad discretion” to measure and evaluate an offeror’s

past performance). An agency’s evaluation of an offeror’s past performance “often requires the

special expertise of procurement officials, and thus reviewing courts give the greatest deference

possible to [such] determinations.” Beta Analytics Int’l, Inc. v. United States, 67 Fed. Cl. 384, 395

(2005); see also E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (courts should

not second guess “discretionary determinations of procurement officials” that “deal with the

minutiae of the procurement process in such matters as technical ratings”). A court’s review of an

agency’s past performance evaluation should thus be limited to ensuring the evaluation was

reasonable and consistent with the stated evaluation criteria. See Am. Auto Logistics, LP v. United

States, 117 Fed. Cl. 137, 185–86 (2014).

The FPS’s evaluation of Garrett’s Past Performance was reasonable. The TET determined

Garrett’s first past project was not relevant regarding complexity because “there is limited

59 information” regarding Garrett’s role in the “actual life maintenance of the machines.” AR at 989.

Rather, “the information provided only display[ed] that Garrett manufactured the machines with

no other supplemental actions.” Id. The TET likewise determined Garrett’s third past project was

not relevant regarding complexity because Garrett

AR at 990. Garrett’s third project also

did not demonstrate Id. The TET therefore concluded there was “some

performance risk” because Garrett did not demonstrate its ability to manage the complexity of the

Solicitation, including “delivery, maintenance, training, warranties, [and] geographic dispersion.”

AR at 991. The contracting officer concurred, deciding CEIA’s Past Performance was superior to

Garrett’s “due to multiple factors” including “successful performance on more relevant contracts”

and “more visibility of the vendors [sic] performance on the ancillary services” required under the

Solicitation. AR at 1021. This is a reasonable conclusion based on a straightforward review of

Garrett’s quote, and this Court will not second-guess the FPS’s decision. See E.W. Bliss, 77 F.3d

at 449; see also Bowman Transp., 419 U.S. at 285 (“The court is not empowered to substitute its

judgment for that of the agency.”). Indeed, Garrett never disputes the facts underlying the FPS’s

determination that Garrett’s past performance projects were not relevant as to complexity. See,

e.g., Pl.’s MJAR at 29–30; Pl.’s Reply at 13–14. Garrett simply argues the FPS’s evaluation was

“unreasonable,” without disputing the substance of the FPS’s findings.

Garrett’s primary argument is that the FPS applied an unstated evaluation criterion when

the FPS considered Garrett’s past use of subcontractors. See Pl.’s MJAR at 30 (“The [Solicitation]

did not indicate that subcontracting was relevant in any way to the evaluation of proposals.”). To

the contrary, the FPS’s evaluation of Garrett’s Past Performance complied in full with the

Solicitation’s requirements. As noted above, the Solicitation clearly explained that subcontractor

60 usage may impact an offeror’s Past Performance rating. See supra Discussion Section I.B.iii.

Describing the Past Performance evaluation factor, the Solicitation states the information each

offeror provides, including past performance projects, “will assist the Government in determining

the degree of risk associated with award of this project to the Vendor in question based [on] that

Vendor’s past and present performance on other projects.” AR at 203 (emphasis added). The

Solicitation reflects that the agency would review the offeror’s past performance of tasks, which

the offeror would be expected to manage under the Solicitation. AR at 202-03. Tasks performed

by another entity — such as a subcontractor — are not the offeror’s past performance and do not

demonstrate the offeror’s ability to manage those tasks.

The Solicitation is explicit about its treatment of subcontractors in past performance

projects. It states that “[w]here a contractor provides projects performed by . . . sub-contractor’s

[sic] . . . the Government will evaluate the past performance of its quoted . . . sub-contractor . . .

separately and consider its findings about [the subcontractor] . . . when determining the risk

associated with the quote and assigning the appropriate rating.” AR at 203. This is an express

disclaimer that the FPS may assess the offeror’s performance in a prior project separately from the

subcontractor’s performance. The Solicitation further warns that “[t]he Government may decide

not to attribute to the prime contractor, as an organization, the past performance of its”

subcontractors.” Id. This is precisely the tack the FPS took when evaluating Garrett’s quote.

Garrett

See AR at 988–91. The FPS

could not “identify which portion of work was performed by subs and which work was

accomplished by Garrett itself” and opted “not to attribute to [Garrett] the past performance of its”

61 subcontractors. AR at 991. As noted, the agency was permitted to make this consideration under

the Solicitation. The FPS therefore did not unreasonably apply an unstated evaluation criterion.

Garrett is simply incorrect to suggest “[b]idders were not put ‘on notice’ of the significant

consequences of submitting past projects Pl.’s Reply at 14.

Garrett finally argues its proposal “did not state that it would not use subcontractors.” Pl.’s

MJAR at 30. According to this argument, the FPS should have evaluated Garrett’s quote under

the assumption that Garrett could decide to employ subcontractors; Garrett claims its quote “left

open the possibility that it would use subcontractors as necessary.” Id. (emphasis added). This

argument is unconvincing. Indeed, it would be nearly impossible for an agency to evaluate the

past performance under such a hypothetical. The FPS evaluated the quote before it, and Garrett

had “the responsibility to submit a well-written proposal with adequately detailed information that

allows for meaningful review.” KSC Boss All., LLC v. United States, 142 Fed. Cl. 368, 382

(quoting Structural Assocs., Inc./Comfort Sys. USA (Syracuse) Joint Venture v. United States, 89

Fed. Cl. 735, 744 (2009)). Garrett’s quote did not

under the Solicitation. AR at 991. It was

therefore proper for the FPS to evaluate Garrett’s quote as though Garrett had proposed to complete

the entire project on its own.

Accordingly, the FPS’s evaluation of Garrett’s Past Performance was not arbitrary and

capricious. The FPS’s evaluation was reasonable and did not rely on unstated evaluation criteria.

Garrett’s arguments to the contrary are unconvincing.

B. Although the FPS Erred in Evaluating Garrett’s Management Approach, the Majority of the FPS’s Evaluation Was Proper

Garrett next argues the FPS erred in its evaluation of Garrett’s Management Approach.

Garrett makes three arguments: (1) the FPS improperly assigned Garrett a weakness for not

62 conforming to the Solicitation’s definition of normal business hours; (2) the FPS improperly

assigned Garrett a weakness for not certifying Garrett would replace defective metal detectors

within three days; and (3) the FPS “improperly credited form over substance” by awarding CEIA

a strength for CEIA’s while refusing to award Garrett a strength for

Garrett’s , which Garrett contends was substantively

identical to CEIA’s . Pl.’s MJAR at 30–32; see also Pl.’s Reply at

14–17.

This Court agrees with Garrett that the FPS improperly assigned Garrett a weakness related

to Garrett’s normal business hours. However, the FPS did not err in assigning Garrett a weakness

for not complying with the Solicitation’s three-day downtime requirement; nor did the FPS

improperly differentiate between CEIA’s and

.

i. The FPS Erred by Assigning Garrett a Weakness for Garrett’s Normal Business Hours

Garrett first argues the FPS erred by assigning Garrett a weakness related to Garrett’s

normal business hours. See Pl.’s MJAR at 30–32; Pl.’s Reply at 15–16. As discussed above,

Garrett’s final quote included a revised Management Approach. See AR at 987 (TET confirming

“Garrett resubmitted its . . . Management Approach (Factor #3) as part of [its] final technical

quotation revisions”). In reviewing Garrett’s revisions to its Management Approach, the

contracting officer relied on the findings included in the TET’s Evaluation Report. AR at 1020–

23 (“I considered all aspects of past performance and management approach by Garrett and CEIA,

including all strengths and weaknesses, as described in detail in the TET report . . . .”); see also

AR at 982–1004. In its report, the TET assigned Garrett’s revised Management Approach a

weakness related to Garrett’s proposed normal business hours. AR at 993 (citing Scope of Work,

63 Section XXI, para. B). The Solicitation defined normal business hours as “8am–4:30pm locally.”

Id.; see AR at 89 (“The Contractor must deliver and install WTMDs between the business hours

of 8:00 a.m. and 4:30 p.m. (local time), Monday through Friday, Federal holidays excluded.”).

The TET observed that Garrett proposed normal business hours of “8am–11pm CST.” AR at 993.

“While the number of hours proposed exceeds the [Solicitation’s] requirement, multiple time zones

are included within the requirement;” therefore, the TET concluded based on Garrett’s normal

business hours, “coverage is not available for a short period.” Id. For example, according to the

Government, 8:00 a.m. EST/7 a.m. CST would fall within normal business hours under the

Solicitation’s definition, but would fall outside Garrett’s normal business hours. This lack of

coverage “was considered a weakness to the TET,” and accordingly, to the contracting officer. Id.;

AR at 1020–23.

However, the TET and contracting officer erred in assigning Garrett a weakness based on

normal business hours. Relevant here is the Scope of Work provision in the Solicitation, Section

XXI, paragraph B, which states that “[t]he Contractor must deliver and install [walk through metal

detectors] between the business hours of 8:00 a.m. and 4:30 p.m. (local time), Monday through

Friday, Federal holidays excluded.” See AR at 89 (Scope of Work, Section XXI, para. B). This

provision simply requires that the contractor deliver and install walk through metal detectors

between 8:00 a.m. and 4:30 p.m. local time. Contrary to the TET’s and contracting officer’s

finding, Garrett’s updated Management Approach indicated it would comply with that

requirement. Garrett committed to “repairs 8am – 4:30 p.m. local times.” AR at 955. Although

this commitment related to “repairs” rather than delivery and installation, Garrett included the

commitment within a section titled “SOW XXI,” which covers delivery and installation. See id.;

see also AR at 88–89 (Solicitation’s Scope of Work, Section XXI, including “Delivery and

64 Installation” requirements). In other words, in the section of Garrett’s updated Management

Approach addressing delivery and installation, Garrett committed to working during the hours of

8 a.m. and 4:30 p.m. local time. This suggests Garrett would comply with the required delivery

and installation hours. Indeed, it would be odd for Garrett to commit to repairing walk through

metal detectors between 8:00 a.m. and 4:30 p.m. local times, but not commit to delivering and

installing metal detectors during that same period.

The TET nonetheless assigned a weakness to Garrett’s Management Approach based on

Garrett’s proposed normal business hours, and the contracting officer erroneously relied on this

evaluation in rendering her award decision. The error stems from a misreading of Garrett’s quote.

The TET and

contracting officer mistakenly read Garrett’s phone support availability as limiting Garrett’s

commitment to deliver and install walk through metal detectors between 8:00 a.m. and 4:30 p.m.

local time. Garrett did no such thing; Garrett’s Management Approach simply committed to

providing phone support between 8:00 a.m. and 11:00 p.m. CST, on top of its commitment to

repair walk through metal detectors between 8:00 a.m. and 4:30 p.m. local time. Nothing in

Garrett’s quote reflects that Garrett would not meet the Solicitation’s requirement to deliver and

install walk through metal detectors between 8:00 a.m. and 4:30 p.m. local time. In contrast,

Garrett’s quote did, in fact, indicate it would comply with this requirement. See AR at 955.

Furthermore, to the extent the agency believed Garrett’s business hours might create a scenario

where phone support “coverage is not available,” Garrett’s final quote committed to

65 AR at 959.

Because the contracting officer relied on the TET’s erroneous understanding of Garrett’s quote,

there was no rational basis for her to conclude Garrett’s Management Approach lacked phone

support coverage for certain time zones. Thus, the assigned weakness relating to normal business

hours was made in error and lacked a rational basis.

ii. The FPS Did Not Err by Assigning Garrett a Weakness for Walk Through Metal Detector Downtime

Garrett disputes another weakness the FPS assigned to Garrett’s updated Management

Approach associated with walk through metal detector downtime. See Pl.’s MJAR at 30–31; Pl.’s

Reply at 14–15. Once again, the contracting officer relied on the TET’s Evaluation Report in

assessing this aspect of Garrett’s Management Approach. See AR at 1020–23; see also AR at

982–1004. The TET’s Evaluation Report noted that

AR at 992; see also AR at 955. The TET, and accordingly the contracting

officer, found that Garrett’s proposed walk through metal detector downtime violated the

Solicitation’s requirement that “downtime is no longer than 3 business days for all locations.” AR

at 992, 1021–23; see also AR at 90 (“The Contractor must deliver and install a replacement

WTMD within 3 business days after the replacement determination and written request provided

by the Contracting Officer to the contractor’s customer service representative.”). The TET stated

that under Garrett’s plan, “CONUS and OCONUS deliveries of replacement are in jeopardy of

having an unacceptable amount of downtime for the [walk through metal detectors],” which might

affect building security. AR at 992; see also AR at 1022–23 (contracting officer noting that the

TET’s identified weakness in Garrett’s downtime contributed to her determination that CEIA’s

quote “provided a level of technical superiority”).

66 As explained further, the TET’s and contracting officer’s interpretation of Garrett’s quote

is reasonable, and, accordingly, the contracting officer did not err in assigning Garrett’s

Management Approach a weakness related to metal detector downtime. Garrett’s quote plainly

states that

AR at 955. The

Solicitation requires that the contractor “must deliver and install a replacement [walk through

metal detector] within 3 business days.” AR at 90. Garrett’s quote did not meet this requirement.

The contracting officer concurred with the TET’s assessment of Garrett’s quote and

AR at 1023. The FPS therefore

reasonably assigned Garrett a weakness. Under these circumstances, this Court declines to disturb

the FPS’s conclusion or substitute its judgment for the agency’s here, particularly given “the

greatest deference possible” courts give to an agency’s evaluation of proposals for their technical

quality. KSC Boss All., 142 Fed. Cl. at 380; E.W. Bliss, 77 F.3d at 449 (noting that “matters [such

as] technical ratings” involve “discretionary determinations of procurement officials that a court

will not second guess”).

Garrett makes several arguments in support of its position. The Court finds each

unpersuasive. First, Garrett argues the TET and contracting officer again misinterpreted its quote.

See Pl.’s MJAR at 31. Garrett claims the “FPS improperly considered Garrett’s downtime

thresholds for on-site repairs . . . to define Garrett’s commitment to shipping replacement units.”

Id. In essence, Garrett argues its quote’s reference to

applies only to instances when

Garrett is repairing walk through metal detectors at the FPS locations and does not apply to

Garrett’s commitment to deliver and install replacement units. Id. Garrett’s argument is not

67 convincing. It is not clear from the face of Garrett’s quote that its proposed unacceptable downtime

relates only to on-site repairs, rather than to delivering and installing replacement units. The onus

was on Garrett to “submit a well-written proposal with adequately detailed information;”

ambiguities in Garrett’s Management Approach are Garrett’s fault alone. KSC Boss All., 142 Fed.

Cl. at 382 (quoting Structural Assocs., Inc./Comfort Sys. USA (Syracuse) Joint Venture, 89 Fed.

Cl. at 744). Again, in this circumstance, this Court declines to “second guess” the FPS’s findings

relating to “the minutiae of the procurement process.” E.W. Bliss, 77 F.3d at 449.

Second, Garrett further argues its “initial proposal” — submitted prior to Amendment 0007

— “indicated its commitment to comply with the 3-day requirement for warranty replacement

units.” Pl.’s Reply at 14–15; see also Pl.’s MJAR at 30–31. Garrett contends that “[n]owhere in

[its] revised proposal did it rescind its commitment to comply with” the 3-day requirement. Pl.’s

Reply at 15. This is a red herring. Garrett ignores that in response to Amendment 0007, offerors

were required to “resubmit their response to . . . Technical Factor 3 — Management Approach,

should they want to be further considered for award.” AR at 200, 204. Garrett’s Amendment 0007

quote therefore superseded its initial, pre-Amendment 0007 quote. Indeed, Garrett has not pointed

to any authority suggesting the FPS was required to consider Garrett’s pre-Amendment 0007

quote. 18 Instead, Garrett references the FPS’s statement that Garrett “may at [its] discretion re-

submit some or all of [its] quotation,” suggesting the FPS intended to incorporate prior quotes.

AR at 935; see Pl.’s Reply at 15. That statement, however, was made during additional corrective

action when the FPS was seeking revisions to the offerors’ Amendment 0007 quotes. AR at 935.

18 Indeed, if the FPS were required to examine offerors’ initial, pre-Amendment 0007 quotes, then CEIA’s Amendment 0007 quote’s Technical Approach should not have been deemed Unacceptable, since its initial quote confirmed CEIA’s equipment had complied with all technical requirements. See AR at 412–33. But, like the Management Approach factor, each offeror was required to “resubmit under Factor 1, Technical Approach.” AR at 204; see also id. at 200. 68 The “quotation” that could be updated in whole or in part was clearly Garrett’s Amendment 0007

quote, not its initial, pre-Amendment 0007 quote. This statement by the FPS therefore does not

imply the FPS intended to incorporate Garrett’s pre-Amendment 0007 quote into its final quote.

In sum, Garrett’s arguments have no merit. Garrett had “the responsibility to submit a

well-written proposal with adequately detailed information that allows for meaningful review by

the procuring agency.” KSC Boss All., 142 Fed. Cl. at 382 (quoting Structural Assocs.,

Inc./Comfort Sys. USA (Syracuse) Joint Venture, 89 Fed. Cl. at 744). The FPS was not required

to cobble together Garrett’s scattered commitments across multiple quotes to confirm Garrett’s

compliance with the Solicitation’s requirements. Accordingly, the contracting officer did not err

in assigning Garrett a weakness for failing to comply with the 3-day downtime requirement. AR

at 1020-23.

iii. The FPS Did Not Err by Not Assigning Garrett a Strength for its

Garrett’s final argument is that the FPS erred by not assigning Garrett’s Management

Approach a strength for its , when the FPS assigned

CEIA’s Management Approach a strength for its . See Pl.’s MJAR at

32; Pl.’s Reply at 16–17. Garrett argues the FPS “improperly credited form over substance” when

it gave CEIA a strength for its and withheld a strength from Garrett

for its “markedly similar in substance” . Pl.’s MJAR at 32.

Garrett essentially makes a disparate evaluation claim — that is, that the FPS inconsistently

evaluated identical aspects of CEIA’s and Garrett’s quotes. To prevail on a disparate evaluation

allegation, Garrett “must show that the agency unreasonably downgraded its proposal for

deficiencies that were ‘substantively indistinguishable’ or nearly identical from those contained in

other proposals.” Off. Design Grp., 951 F.3d at 1372. This standard also applies if the agency

69 unreasonably assigns a strength to only one proposal, despite other proposals being “substantively

indistinguishable,” but failing to merit a strength. See Ascendant Servs., LLC v. United States, 160

Fed. Cl. 275, 289–91 (2022) (“[T]he inquiry on a disparate evaluation claim is the same whether

the disparate evaluation involves a strength, weakness, or deficiency . . . .”). The question before

this Court, therefore, is whether CEIA’s , which received a strength,

is “substantively indistinguishable” from Garrett’s , which did not receive a

strength. If it is, then the FPS’s evaluation was arbitrary and capricious.

On initial examination, CEIA’s and Garrett’s

share some substantive overlap. Compare AR at 676 ( ),

with AR at 959 ( ). Each submission outlines

. Id. Each submission begins with

and walks through , including

. Id.

Nonetheless, CEIA’s is not “substantively indistinguishable”

from Garrett’s . For one, CEIA’s

. See AR at 676

(noting ). Garrett’s

AR at 959. Garrett’s leaves some ambiguity

regarding how . One may potentially infer

. For example, it is not clear

70 from Garrett’s quote whether the will result in ; or whether the

FPS must . This uncertainty is not present in

CEIA’s .

Furthermore, clarity and certainty are strengths in their own right. As the TET observed,

CEIA’s

was detailed and provided a clear description of

AR at 999. In her Award Decision Memorandum, the contracting officer considered the TET’s

analysis of the when she compared CEIA’s and Garrett’s Management Approaches.

AR 1020–23. The TET and contracting officer both valued the clarity of CEIA’s

. The agency has experience in working with vendors to fix defective equipment and is

in the best position to appreciate the clarity and certainty provided by CEIA through its

. This Court is not inclined to overrule the findings of the agency and improperly

substitute its judgment for the agency’s. Indeed, “[w]hen a court is not convinced that the aspects

of the proposals brought to its attention are indistinguishable for the purposes of the evaluation,

then the exercise crosses the line and involves the second guessing of ‘minutiae’ which we are not

allowed to undertake.” Enhanced Veterans Sols., Inc. v. United States, 131 Fed. Cl. 565, 588

(2017) (quoting E.W. Bliss, 77 F.3d at 449); see also KSC Boss All., 142 Fed. Cl. at 380–81 (“It is

well established that the evaluation of proposals for their technical quality generally requires the

special expertise of procurement officials. Reviewing courts therefore give the greatest deference

possible to these determinations.”); Off. Design Grp., 951 F.3d at 1373 (emphasizing it “is not the

71 court’s role” to “second-guess the agency’s discretionary determinations underlying its technical

ratings”).

Accordingly, the FPS did not conduct a disparate evaluation by awarding a strength to

CEIA’s and not awarding a strength to Garrett’s

C. The FPS’s Best Value Determination Was Not Arbitrary and Capricious

Garrett’s final complaint with the FPS’s substantive evaluations addresses the contracting

officer’s best value determination. Garrett claims its “lower pricing and better value should have

led the FPS to grant the Contract to Garrett.” Pl.’s MJAR at 33. Garrett further argues the FPS

“failed to meaningfully account for Garrett’s cost saving” and that “any purported advantages

[with CEIA’s quote] do not exist, or in the very least are too minor to warrant such a cost.” Id.

The Government disagrees, claiming the “FPS’s best value tradeoff analysis was conducted in

accordance with the stated evaluation criteria, and reasonably supported its decision to pay a price

premium to CEIA for its technically superior quote.” Def.’s Cross-MJAR at 46.

An agency’s award decision is “least vulnerable to challenge when based upon a best value

determination.” PlanetSpace Inc. v. United States, 96 Fed. Cl. 119, 125 (2010) (citing Galen Med.

Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004)). “Procurement officials have

substantial discretion to determine which proposal represents the best value for the government.”

E.W. Bliss, 77 F.3d at 449; see also Banknote Corp., 365 F.3d at 1355–56 (“[C]ontracting Officers

have a great deal of discretion in making contract award decisions, particularly when . . . the

contract is to be awarded to the bidder or bidders that will provide the agency with the best value.”).

Accordingly, “a best-value determination should not be disturbed so long as the agency documents

72 its final award decision and includes a reason for any business judgments and tradeoffs made.”

Vertex AeroSpace, LLC v. United States, 142 Fed. Cl. 755, 776 (2019).

CEIA’s final proposed price was $5,395,130 — about than Garrett’s

final proposed price of . See AR at 1020, 1022. As the quoted prices reflected a five-

year contract term, CEIA’s quote was approximately per year than

Garrett’s quote. Id. In her award decision, the contracting officer noted CEIA’s “proposed price

is considered to be fair and reasonable.” AR at 1020. However, because of the difference in cost,

the contracting officer conducted a “price/technical tradeoff analysis to determine whether CEIA’s

quote provides non-price benefits that would justify paying the annual price premium

associated with [CEIA’s] quotation.” AR at 1022.

The contracting officer provided a detailed analysis describing why CEIA’s quote “is a

better value to the Government” than Garrett’s quote. AR at 1022. She noted that CEIA’s quote

was superior to Garrett’s for both technical evaluation factors #2 (Past Performance) and #3

(Management Approach); CEIA’s quote “demonstrates relevant and high-quality past

performance as well as an effective, comprehensive, and detailed Management Approach plan.”

Id. The contracting officer said “there is less risk associated with the fully relevant and high

quality” Past Performance of CEIA, and CEIA’s Management Approach “provides a level of

technical superiority which is superior to any benefits associated with” Garrett’s lower-priced

quote. Id.

The contracting officer continued: “Specifically differentiating CEIA’s quote from

Garrett’s quote was an overall understanding of the complexity of the requirements.” AR at 1023.

CEIA’s highly relevant past performance and excellent Management Approach evidenced

“experience with risks associated with in working [walk through metal

73 detectors].” Id. This was important to the contracting officer, as metal detectors are “a crucial

supply to maintain the FPS’s security mission.” Id. “Security breaches or lapses” due to defective

walk through metal detectors “could be catastrophic, and it is of utmost importance to the security

mission to always have working countermeasures in place.” Id. In sum, CEIA’s quote

demonstrated CEIA’s ability to competently manage the FPS’s needs with the least amount of risk.

In contrast, Garrett’s quote, including Garrett’s past performance, “demonstrated less experience

with the management of geographically dispersed locations which include continued service calls

and maintenance for machines.” Id. Additionally, the contracting officer stated that Garrett’s

“timeframes associated with replacement machines was the largest concern identified by the TET.”

Id. The contracting officer also noted that Garrett’s failure to comply with the Solicitation’s three-

day replacement requirement “may cause risk of downtime at Federal Buildings . . . demonstrating

the vendor may not understand the critical nature of these complexities.” Id. Accordingly, the

contracting officer concluded CEIA’s superior quote “more than offsets” the roughly

price premium attached to its quote. Id. CEIA’s price premium “reflect[ed] a superior

understanding” of the FPS’s security mission. Id.

As reflected by the contracting officer’s thorough best value analysis, the FPS adequately

documented its decision to pay CEIA’s price premium. AR at 1020–23. The contracting officer

also detailed the relevant tradeoffs and why the FPS opted to pay CEIA’s price premium. Id.

Though awarding the Solicitation to Garrett would save the FPS about annually, the

contracting officer concluded CEIA’s superior understanding of the Solicitation’s complexities

and the lower risk associated with CEIA’s proposal made CEIA the appropriate awardee. AR at

1022–23. In light of such a well-reasoned best value analysis, this Court opts to respect the

“substantial discretion” afforded to contracting officers to make best value determinations. E.W.

74 Bliss, 77 F.3d at 449. The FPS’s best value determination was thorough, considered, and

reasonable, and was not arbitrary or capricious.

The contracting officer’s best value analysis, however, is slightly complicated by this

Court’s determination that the FPS erred by assigning a weakness for Garrett’s normal business

hours. See supra Discussion Section II.B.i. The FPS should not have assigned Garrett a second

weakness in Garrett’s Management Approach. Accordingly, this Court must assess whether

Garrett was prejudiced by the error.

III. Garrett Is Not Prejudiced by the FPS’s Minor Evaluation Error

The first step of a court’s review of an agency procurement considers whether the agency’s

conduct was arbitrary and capricious. See Off. Design Grp., 951 F.3d at 1371. This Court found

that the FPS made such an error in one instance: assigning a weakness to Garrett’s Management

Approach regarding normal business hours. This Court must now proceed to the second step of

the analysis, which considers whether the agency’s error prejudiced the protestor. Id. A protestor

can establish prejudice only if it can demonstrate there was a “substantial chance” it would have

received the contract but for the error. See Bannum, 404 F.3d at 1353; see also Off. Design Grp.,

951 F.3d at 1374–75; Glenn Def. Marine, 720 F.3d at 907 (“De minimis errors in the procurement

process do not justify relief.”). The burden to prove prejudice lies with the protestor. See Sys.

Studs. & Simulation, 22 F.4th at 996–97.

Garrett must therefore demonstrate that but for the FPS’s error, Garrett would have had a

“substantial chance” to win the Contract. As an initial matter, it is important to be clear what the

FPS’s arbitrary and capricious error was. The only such error the FPS committed was in assigning

Garrett’s Management Approach a weakness regarding normal business hours. See AR at 993

(Garrett’s normal business hours of 8:00 a.m. to 11 p.m. CST “was considered a weakness to the

75 TET”); AR at 1021–22. As previously discussed, the FPS did not err by implementing additional

corrective action; nor did the FPS err by implementing the additional corrective action unfairly.

The FPS likewise did not err in its evaluation of Garrett’s Past Performance. And the FPS did not

err in evaluating CEIA’s final proposal, including assigning CEIA a strength for its

. The question, then, is whether Garrett would have had a substantial chance to

receive the Contract if the FPS had not assigned a second weakness to Garrett’s Management

Approach. If Garrett would have had a substantial chance at award under this circumstance, then

it is prejudiced.

Garrett has not met its burden. The FPS’s evaluation error was harmless and did not

prejudice Garrett. The Federal Circuit has confirmed an agency’s evaluation error may not be

prejudicial, including in best value procurements. See, e.g., Off. Design Grp., 951 F.3d at 1373–

74 (finding no prejudice despite disparate treatment by agency). For example, in WellPoint Mil.

Care Corp. v. United States, the Federal Circuit held the protestor suffered no prejudice even where

the agency had committed procurement errors. 953 F.3d 1373, 1381–82 (Fed. Cir. 2020). Under

the relevant solicitation, “non-price [evaluation] factors . . . [were] significantly more important”

than the price factor. Id. at 1381. In addition, the first two technical subfactors were “more

importan[t]” than the third technical subfactor. Id. at 1381–82 (alteration in original). The Federal

Circuit concluded the awardee’s proposal was superior to the protestor’s proposal for the first two

technical subfactors. Id. at 1382 (noting the agency characterized awardee’s proposal as a

“thorough approach” that offered “a clear competitive advantage,” as well as “significant

experience”). Even if the agency had erred in evaluating the third factor, the error was harmless

because the awardee’s proposal was significantly superior to the protestor’s, particularly for the

first two, more important subfactors. Id. (Court of Federal Claims did not err “when it concluded

76 [protestor] would not have had a ‘substantial chance’ of winning the contract . . . even if [protestor]

had been rated higher under the [third] subfactor”).

That is the case here. The Solicitation clearly stated that the Past Performance factor was

more important than the Management Approach factor. See AR at 202 (“Technical Factors #2

[Past Performance] and 3 [Management Approach] are listed in descending order of importance.”).

The contracting officer “determined that CEIA is superior to Garrett in Technical Factors #2 and

#3, Past Performance and Management Approach.” AR at 1022. Like the awardee’s proposal in

Wellpoint, CEIA’s quote was stronger than Garrett’s on the more important evaluation factor, Past

Performance. See Wellpoint, 953 F.3d at 1381–82. CEIA’s Past Performance submission

demonstrated “successful performance” on the incumbent project, “more examples of fully

relevant past performance,” and “more visibility” on “ancillary services” required under the

Solicitation. AR at 1021. CEIA’s quote was therefore stronger where it mattered most.

For Management Approach, CEIA’s quote was similarly superior, with three strengths

compared to Garrett’s one strength and two weaknesses. Id. Even if Garrett’s normal business

hours weakness were eliminated, the score would still be lopsided; CEIA’s Management Approach

yielded three strengths compared to Garrett’s one strength and one weakness. 19 And under that

scenario, Garrett’s improvement relative to CEIA occurred within the less influential technical

evaluation factor. See Wellpoint, 953 F.3d at 1381–82. CEIA’s Past Performance, the more

important technical evaluation factor, was still rated as superior to Garrett’s Past Performance. AR

19 There is no basis to change Garrett’s normal business hours weakness into a strength. Garrett does not argue that its Management Approach should have been assigned a strength for its normal business hours, nor does the Administrative Record provide any evidence that a strength was warranted. Eliminating Garrett’s normal business hours weakness, therefore, neutralizes that aspect of Garrett’s quote. Garrett’s final Management Approach would therefore be left with one weakness and one strength. 77 at 1019–20; see Sys. Stud. & Simulation, Inc v. United States, 152 Fed. Cl. 74, 96 (2020)

(recognizing SSA “placed great emphasis” on the awardee’s strengths under the “more important”

first two factors). Therefore, even under this formulaic plus-minus approach to strengths and

weaknesses, Garrett’s improved quote is far weaker than CEIA’s quote.

Simply tallying CEIA’s and Garrett’s strengths and weaknesses, however, does not resolve

the prejudice inquiry. According to the Solicitation, the Contract would go to “the vendor that

provides the best value.” AR at 205. The contracting officer performed a price/technical tradeoff

analysis to determine whether CEIA’s superior quote was worth the higher price. See AR at 1022–

23. The contracting officer concluded CEIA’s quote was well worth the higher price, see id.;

however, would that have still been the case if the FPS had not erred by assigning a second

weakness to Garrett’s Management Approach? The answer is clearly yes. The Administrative

Record demonstrates the improper weakness in Garrett’s Management Approach had little, if any,

impact on the contracting officer’s best value analysis. See Precision Images, LLC v. United

States, 79 Fed. Cl. 598, 626 (2007) (holding “the administrative record indicates that the [agency]

would have engaged in the same tradeoff and determined that [awardee] represented the best value

under the terms of this solicitation even if” the agency did not commit the evaluation error). The

contracting officer’s technical tradeoff scarcely considered Garrett’s normal business hour

weakness, mentioning it only once when contrasting Garrett’s Management Approach with

CEIA’s technically superior quote. See AR at 1022–23.

It is apparent from the contracting officer’s best value analysis that what “specifically

differentiat[ed]” CEIA’s quote from Garrett’s quote was CEIA’s “overall understanding of the

complexity of the requirements.” AR at 1023. Garrett’s normal business hours weakness did not

factor into the contracting officer’s analysis in a meaningful way; the contracting officer did not

78 reference that weakness when “[s]pecifically differentiating” between CEIA’s and Garrett’s

quotes. See id. Rather, the contracting officer referenced CEIA’s fully relevant past performance

projects, including the incumbent project, and CEIA’s Management Approach plan as evidence of

CEIA’s superior understanding of the Solicitation. See AR at 1023; see also LB&B Assocs., Inc.

v. United States, 160 Fed. Cl. 710, 738 (2022) (holding no prejudice, in best value procurement,

because agency “based its award decision solely on [awardee’s] strengths”). The contracting

officer also flagged Garrett’s past performance efforts, which “demonstrated less experience with

the management of geographically dispersed locations” and widened the gap between CEIA’s and

Garrett’s quote. AR at 1023. The contracting officer finally referenced Garrett’s lacking

Management Approach but addressed only Garrett’s weakness relating to “timeframes associated

with replacement machines,” which was “the largest concern identified by the TET.” Id.; see also

Oral Arg. Tr. at 56:21–22 (Government agreeing metal detector downtime, not normal business

hours, was “certainly the contracting officer’s largest concern if you look at the two weaknesses”).

This weakness “may cause risk of downtime at Federal Buildings utilizing the [walk through metal

detector], demonstrating [Garrett] may not understand the critical nature of these complexities

under the [Solicitation].” AR at 1023. The normal business hours weakness assigned to Garrett’s

Management Approach was not mentioned by the contracting officer as something that

“[s]pecifically differentiat[ed]” CEIA’s quote from Garrett’s quote. AR at 1023; see Sys. Stud. &

Simulation, 152 Fed. Cl. at 95 (“Had the [erroneous] strength significantly impacted her analysis,

one would expect to see the SSA incorporate it into her discussion of comparative proposal price.

. . . This omission . . . speaks to the strength’s lack of influence on the best value tradeoff.”), aff’d,

22 F.4th 994, 998 (Fed. Cir. 2021) (“[T]he court’s finding that ‘loss of the [] strength would not

have disturbed [awardee’s] lead’ was not clearly erroneous.”) (second alteration in original). That

79 the contracting officer did not discuss Garrett’s normal business hours weakness when

“specifically differentiating” between CEIA and Garrett suggests that weakness had a negligible

impact on the contracting officer’s best value determination. See AR at 1023.

In summary, Garrett’s normal business hours weakness was a minor error that would not

have affected the contracting officer’s best value determination here. This Court is thus satisfied

that eliminating the FPS’s evaluation error would not give Garrett a “substantial chance” at

receiving the Contract award. The contracting officer’s tradeoff analysis would not change even

if Garrett’s normal business hours weakness were removed from Garrett’s rating. For all of these

reasons, accordingly, Garrett did not suffer prejudice. 20

IV. Garrett Is Not Entitled to Injunctive Relief

Garrett requested injunctive relief, asking this Court to “enjoin the Agency from

proceeding with the awarded contract.” Pl.’s MJAR at 34. This 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)

20 Garrett contends its is substantively identical to CEIA’s and, accordingly, should have been assigned a strength. See Pl.’s MJAR at 32 (“Garrett should have also received a strength for its approach.”). The Court disagrees, as discussed above. See supra Discussion Section II.B.iii. However, even if Garrett were correct, the Court’s prejudice analysis would not change. Adding a strength to Garrett’s final Management Approach — and erasing the errant normal business hours weakness — would result in two strengths and one weakness. Garrett’s Management Approach would still be considered weaker than CEIA’s, which was assigned three strengths. AR at 999. Though Garrett’s Management Approach rating is closer to CEIA’s, Management Approach is still not as important as Past Performance, where CEIA’s quote, according to the contracting officer, “demonstrates significantly [less] performance risk” than Garrett’s quote. AR at 1021. Furthermore, as discussed above, Past Performance and Management Approach “are significantly more important than price.” AR at 202. The contracting officer therefore would not have changed her price/technical tradeoff analysis based on Garrett’s marginal improvements within the least important technical factor. 80 whether the public interest is served by granting an injunction. See Centech Grp., 554 F.3d at

1037. This Court need not advance past the first factor. “A plaintiff who cannot demonstrate

success upon the merits cannot prevail upon a motion for injunctive relief.” By Light Prof’l IT

Servs., Inc. v. United States, 131 Fed. Cl. 358, 367 (2017) (citing Nat’l Steel Car, Ltd. v. Canadian

Pacific Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir. 2004)); see Obsidian Sols. Grp., LLC v. United

States, No. 2021–1836, slip op. at 10 (Fed. Cir. Dec. 8, 2022) (“There can be no injunctive relief

without a corresponding prevailing claim.”); Blue & Gold Fleet, L.P. v. United States, 492 F.3d

1308, 1312 (Fed. Cir. 20007) (noting success on the merits is “the most important factor required

to enjoin the award of [a] contract”). As discussed above, Garrett’s protest fails on the merits.

Accordingly, Garrett is not entitled to injunctive relief.

CONCLUSION

For the reasons set forth above, this Court DENIES Plaintiff’s Motion for Judgment on the

Administrative Record (ECF No. 20), GRANTS Defendant’s Cross-Motion for Judgment on the

Administrative Record (ECF No. 22), and GRANTS Intervenor-Defendant’s Cross-Motion for

Judgment on the Administrative Record (ECF No. 23). The Clerk of Court is DIRECTED to

enter Judgment accordingly. The parties are directed to CONFER and FILE a Notice within nine

days of this Memorandum and Order, attaching a proposed public version of this Memorandum

and Order, with any competition-sensitive or otherwise protected information redacted.

IT IS SO ORDERED.

Eleni M. Roumel ELENI M. ROUMEL Judge

December 19, 2022 Washington, D.C.