Technatomy Corporation v. United States

• Court: United States Court of Federal Claims
• Decided: October 10, 2024
• Docket: 24-451
• Status: Published

Opinion

In the United States Court of Federal Claims Nos. 24-451, 24-456, 24-463, 24-483, 24-495, 24-515, 25-519, 24-525, 24-530, 24-532, 24-535, 24-539, 24-540, 24-542, 24-547, 24-553, 24-571, 24-578, 24-579, 24-584, 24-588, 24-590, 24-604, 24-618, 24-623, 24-630, 24-654, 24-655, 24-673, 24-797

TECHNATOMY CORP., et al,

Plaintiffs,

v.

THE UNITED STATES, Consol. No. 24-451 C Defendant, Filed: October 10, 2024

and

GOVCIO, LLC, et al.,

Intervenor-defendants.

OPINION AND ORDER Granting in Part and Denying in Part the Government’s and Intervenors’ Motions to Dismiss

SILFEN, Judge.

This is a very large bid protest case. 1 The Department of Veterans Affairs (VA) solicited

offers to overhaul its information technology system over the next five to ten years. The solicitation

stated that the VA would award the contract to the thirty offerors (or possibly more) with the

highest-rated bids, and the VA planned to then issue task and delivery orders to the awardees.

After receiving 173 offers, the VA chose its top thirty. Technatomy and twenty-nine other

1 This opinion was originally issued under seal. The parties had no proposed redactions. The court reissues the opinion publicly. unsuccessful offerors sued the VA for alleged violations of the solicitation or other government

obligations, and fifteen of the awardees intervened to defend their positions.

The government moves to dismiss one complaint in its entirety and parts of twenty-one

other complaints, alleging that the solicitation was clear, and the parties who filed those complaints

waived any challenges to the terms of solicitation by not raising them before the close of the bid-

ding process. Eight of the intervenors also move to dismiss certain claims, some on the same

grounds as the government and some on other grounds. The court grants in part and denies in

part the government’s motion to dismiss and grants in part and denies in part the intervenors’

motions to dismiss.

I. Background

This consolidated bid protest concerns the VA’s Transformation Twenty-One Total Tech-

nology Next Generation Two (T4NG2) contract. AR1793. The T4NG2 contract is for the delivery

of “total [information technology] service solutions” to the VA, including software and hardware

for “program management, strategy, enterprise architecture and planning; systems / software en-

gineering; software technology demonstration and transition; test and evaluation; operations and

maintenance; cybersecurity; training; [information technology] facilities; and other solutions en-

compassing the entire range of [information technology] and [healthcare information technology]

requirements.” AR1794.

The VA issued a request for proposals in March 2023. AR1793. After some amendments,

the VA issued a fifth and final version of the solicitation three months later. AR1779-80. The

proposed contract has a five-year term with one optional five-year extension. AR1798. The maxi-

mum overall value for the full ten years is $60.7 billion. AR1792. The VA planned to award the

contract to the thirty highest-rated offerors offering a fair and reasonable price. AR1939. The VA

reserved fifteen of the thirty contracts for service-disabled veteran-owned small businesses,

2 reserving one of the fifteen spots for a woman-owned business and another of the fifteen for a

historically underutilized business zone. Id. This opinion sometimes refers to those allocations as

the reserve requirement.

The solicitation outlined the process for evaluating offerors’ proposals. AR1939-45. The

VA would evaluate each proposal on a point system. AR1939-41. The solicitation listed factors

that would warrant points, including commitment to spending contract-obligated funds on certain

types of entities such as small businesses, the percentage of employees with veteran status, and

past performance on relevant projects. AR1944-45. The VA intended to award contracts without

conducting post-offer discussions with offerors but reserved the right to engage in discussions and

request clarifications if necessary. AR1939.

For the first step of the evaluation process, the offerors would score their own proposals

using a worksheet. AR1940; see AR1763-66 (model worksheet). The VA would then review the

thirty top-scoring proposals for “acceptability” by verifying the self-reported scores. AR1940;

AR1941 (M.1.2 Acceptability Review). If the VA found any score inaccurate, the VA would re-

calculate that score and re-sort the proposals. AR1940. If the recalculation knocked an offeror out

of the top thirty, the VA would review the next highest self-scored offeror. Id. Once the VA vali-

dated thirty proposals with scores that were higher than the remaining self-scored proposals, de-

termined that the top thirty proposals collectively satisfied the reserve requirement, and determined

that each offered a fair and reasonable price, the VA would end its review and offer awards to

those offerors. AR1940-41.

The solicitation included a process that the VA would use in case of a tie. AR1939. If

between two and six offerors tied for the thirtieth spot, the VA would award a contract to all of the

tied offerors, but if more than six offerors tied, none would receive a contract. AR1939-40. Instead,

3 only the top twenty-nine offerors would receive a contract. Id. If a tie occurred at any other posi-

tion, the tied offerors would not share one position; each would be assigned its own position within

the top thirty. Id. The solicitation also reserved to the VA the right to award more or fewer than

thirty contracts in other scenarios. AR1940-41.

Offerors had until June 2023 to submit their proposals. AR1780. The VA received 173

eligible proposals. AR193528-29 [¶2]. The VA exercised its right to seek clarification from some

offerors (AR204024-27) but did not engage in any discussions (AR193539).

The VA determined the thirty highest-rated proposals after evaluating 78 proposals.

AR193537. According to the VA, those top thirty proposals offered fair and reasonable prices

(AR193559) and were qualified for the award (AR193567-69). At least fifteen of the top thirty

offerors satisfied the solicitation’s reserve requirement. AR193538. The VA issued a public notice

of its decision to award contracts to those top thirty offerors (AR193868-69), notified the unsuc-

cessful offerors of their right to a debriefing (AR193551), and executed contracts with the thirty

awardees.

Multiple unsuccessful offerors filed protests with the Small Business Administration

(SBA). AR193551. The SBA found that two of the awardees, Veterans EZ and Sierra7, did not

qualify as small businesses. AR202193-96; AR201510-14; AR203286. Thus, the VA re-scored

those two awardees. AR193475; AR193517-18; AR193520-21; AR193551. With its new score,

Veterans EZ dropped from fifth to seventeenth place. AR193240; AR193517-18; AR193551

[¶10]; AR204035-36. Although Veterans EZ was still eligible for the contract award, it no longer

qualified for one of the reserve positions, and a different awardee, Zetta Solutions, took its spot as

the fifteenth reserved position awardee to satisfy the solicitation’s reserve requirement.

AR193519; AR193551-51 [¶10]; AR203897. Re-scored, Sierra7 fell from twenty-eighth place to

4 forty-ninth place and was no longer eligible for a contract award. AR193521; AR193551 [¶10].

With that change, the VA determined that CGI Federal, the offeror in the thirty-first position,

moved into the top thirty. AR193522. Because CGI Federal offered a fair and reasonable price

(AR193565) and was otherwise qualified for the award (AR193570-71), the VA terminated its

contract with Sierra7 and awarded a contract to CGI Federal instead (AR193553-54 [¶13];

AR193871-72; AR204047).

Technatomy filed a complaint in this court. ECF No. 1. Thirty other unsuccessful offerors

followed, and the court consolidated the cases. One unsuccessful offeror, Leidos, voluntarily dis-

missed its complaint. ECF No. 270. And twenty-five of the remaining thirty plaintiffs amended

their complaints. ECF Nos. 274-77, 279, 281-84, 287-298, 300-302, 304, 320.

II. Discussion

The government moves to dismiss one amended complaint in its entirety and twenty-one

other amended complaints in part for failing to state a claim. ECF No. 307. The government argues

that the solicitation’s terms were clear and that the parties forfeited any challenges to the terms of

solicitation by not raising them before the close of the bidding process. Id. at 1. The government

raises six categories of challenges that were allegedly forfeited:

1. Challenges to the VA’s decision to award only thirty contracts;

2. Challenges to the VA’s evaluation of the small business participation commitment;

3. Challenges to the VA’s evaluation of veteran employment;

4. Challenges to the VA’s evaluation of relevant experience;

5. Challenges to the VA’s evaluation of eligibility of certain joint ventures for the service- disabled veteran-owned small businesses reserve; and

6. A challenge to the VA’s disqualification of Tribility.

Id. at 2-3.

5 Eight of the fifteen intervenors also move to dismiss, many raising the same grounds as the

government, and some raising additional grounds. Intervenor GovCIO raises two additional for-

feiture arguments. ECF No. 310 at 3. And intervenors raise one other category of arguments, re-

questing that the court dismiss certain claims, including those of a twenty-third plaintiff, Thun-

derYard Liberty, covering the VA’s evaluation of whether each relevant experience project was

used in only one proposal. ECF No. 310 at 19-20; ECF No. 315 at 33-34; ECF No. 412 at 154:22-

157:7 (transcript from oral argument on motion to dismiss, Aug. 27, 2024).

The twenty-three plaintiffs named in the motions to dismiss responded, arguing that their

claims do not challenge the terms of the solicitation and were not forfeited.

Dismissal for failure to state a claim under rule 12(b)(6) of the Rules of the Court of Federal

Claims “is appropriate when the facts asserted by the claimant do not entitle [the claimant] to a

legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). When evaluating

a rule 12(b)(6) motion, the court must accept well-pleaded factual allegations as true and draw all

reasonable inferences in the plaintiffs’ favor. Id. The court is not required to accept the parties’

legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555-56 (2007)). The court primarily considers the complaint but may

also “look to matters incorporated by reference or integral to the claim, items subject to judicial

notice, and matters of public record.” Dimare Fresh, Inc. v. United States, 808 F.3d 1301, 1306

(Fed. Cir. 2015) (cleaned up). “A complaint must be dismissed under Rule 12(b)(6) when the facts

asserted do not give rise to a legal remedy, or do not elevate a claim for relief to the realm of

plausibility.” Laguna Hermosa Corp. v. United States, 671 F.3d 1284, 1288 (Fed. Cir. 2012).

In bid protest cases, a disappointed bidder “who has the opportunity to object to the terms

of a government solicitation containing a patent error” or patent ambiguity and does not object

6 before the bidding process closes forfeits or “waives its ability to raise the same objection subse-

quently in a bid protest action” in this court. Blue & Gold Fleet, L.P. v. United States, 492 F.3d

1308, 1313-15 (Fed. Cir. 2007). The Blue & Gold waiver rule “applies to all situations in which

the protesting party had the opportunity to challenge a solicitation before the award and failed to

do so.” COMINT Systems Corp. v. United States, 700 F.3d 1377, 1382 (Fed. Cir. 2012).

Whether an error or ambiguity is patent is a question of law. M.R. Pittman Group, LLC v.

United States, 68 F.4th 1275, 1283 (Fed. Cir. 2023). “A defect in a solicitation is patent if it is an

obvious omission, inconsistency, or discrepancy of significance” or “if it could have been discov-

ered by reasonable and customary care.” Inserso Corp. v. United States, 961 F.3d 1343, 1349 (Fed.

Cir. 2020). An ambiguity is patent when the solicitation “contains facially inconsistent provisions

that would place a reasonable contractor on notice and prompt the contractor to rectify the incon-

sistency by inquiring of the appropriate parties.” Stratos Mobile Networks USA, LLC v. United

States, 213 F.3d 1375, 1381 (Fed. Cir. 2000). Other—latent—ambiguities are not apparent from

the face of the solicitation and may be protested after contracts are awarded. COMINT Systems,

700 F.3d at 1382 n.5. Generally, ambiguities are read against the solicitation drafter—the govern-

ment—as long as the offeror’s interpretation is reasonable. HPI/GSA 3C, LLC v. Perry, 364 F.3d

1327, 1334 (Fed. Cir. 2004). But if the offeror “knows or has reason to know,” or if it was reason-

ably discoverable, “that the drafting party … holds an interpretation different than [the offeror’s],

the result … should be no different than if the ambiguity were patent.” M.R. Pittman, 68 F.4th at

1284.

The Blue & Gold waiver rule is not jurisdictional. M.R. Pittman, 68 F.4th at 1280. When a

party, post-award, challenges the clear terms of the solicitation or points to a patent error in the

solicitation, the party’s claim should be dismissed under rule 12(b)(6). Id.

7 A. Plaintiffs may not challenge the VA’s decision to make only 30 awards

The government moves to dismiss the following claims from six plaintiffs that challenge

the VA’s decision to award only thirty contracts.

Plaintiff Complaint ECF No. Counts Arrow Arc 274 XII Omni Cares 276 XII Vision Tech 277 XII Intellect 275 XII T4NG2 JV 279 XVI Government Healthcare 288 XII Solutions

ECF No. 307 at 10.

Each of those six plaintiffs alleges that the VA improperly “self-imposed” a hard limit of

thirty contract awards, which was neither provided for in the solicitation nor in the best interests

of the VA. ECF No. 274 at 112 [¶¶453-54] (Arrow Arc); ECF No. 275 at 97 [¶¶442-43] (Intellect);

ECF No. 276 at 113 [¶¶508-09] (Omni Cares); ECF No. 277 at 101 [¶¶444-45] (Vision Tech);

ECF No. 279 at 131 [¶¶574-75] (T4NG2 JV); ECF No. 288 at 40 [¶¶167-68] (Government

Healthcare Solutions). In support, those plaintiffs point to two caveats in the solicitation—the tie-

break rules and an on-ramp clause—and assert that the existence of a congressional investigation

into the VA’s award decisions is evidence of arbitrary conduct. ECF No. 274 at 112-14 [¶¶456-

63]; ECF No. 275 at 98-100 [¶¶445-52]; ECF No. 276 at 113 [¶¶511-18]; ECF No. 277 at 101-03

[¶¶446-53]; ECF No. 279 at 131-33 [¶¶577-84]; see ECF No. 288 at 40-41 [¶¶163-66, 169].

The government argues that the language of the solicitation clearly informs offerors that

the VA intended to award thirty contracts. ECF No. 307 at 10-11. And, according to the govern-

ment, the solicitation expressly gives the VA broad discretion to determine how many contracts to

award. Id. The government reads neither of the caveat provisions to undermine that discretion. Id.

8 at 11-12. The government adds that the congressional investigation cannot and does not alter the

solicitation’s clear meaning. Id. at 12-13.

The solicitation is clear: The VA “intend[ed] to award up to thirty contracts.” AR1939; see

AR1941 (“Once the Top 30 have been validated at a Fair and Reasonable price, and the reserves

have been met, Acceptability Reviews will cease, and contract awards will be made.”).

One of the solicitation’s caveats provided the VA with procedures to award more or fewer

contracts under the limited circumstances of a tie. The solicitation explained that the tie-breaking

rules would apply “exclusively” if “two or more Offerors received an identical score” at the thir-

tieth position (AR1939), or “if there [was] a tie at the 15th non-[reserved] position” (AR1941).

“Even if there is a single point difference, or even a hundredth of a point difference” between the

thirtieth and the thirty-first ranked offerors, “only the Offeror in the 30th position will receive an

award.” AR1940. After the offerors were ranked, there was no tie for number thirty. See ECF No.

307 at 11.

The other caveat, the on-ramp provision, permitted the government to “add additional

prime Contractors through any means deemed appropriate” and preserved the VA’s right to exer-

cise that option “at its sole discretion.” AR1862. And in general, the government has broad discre-

tion to determine which method of procurement is in its best interest. Tyler Construction Group v.

United States, 570 F.3d 1329, 1334 (Fed. Cir. 2009); Lockheed Missiles & Space Co., Inc. v.

Bentsen, 4 F.3d 955, 958 (Fed. Cir. 1993) (“Effective [government] contracting demands broad

discretion.”).

The solicitation envisioned that the on-ramp might be used if an existing contractor were

removed from the contract, but it was not limited to that scenario. AR1862 (“The Government may

utilize an On-Ramp to add additional prime Contractors through any means deemed appropriate,

9 including in the event an Off-Ramp is exercised.”). The solicitation did not require the government

to exercise the option and award more than thirty contracts, either initially or ever. Id.; see Optimal

Data Corp. v. United States, 17 Cl. Ct. 723, 731 (1989), aff’d, 904 F.2d 45 (Fed. Cir. 1990) (An

option in a contract “does not create a legal obligation on the part of the government to exercise

the option and require the work.”); Government Systems Advisors, Inc. v. United States, 847 F.2d

811, 813 (Fed. Cir. 1988).

The six plaintiffs argue that the government’s discretion is the problem: If the government

has discretion to issue more than thirty awards and chooses not to exercise it, then that choice not

to issue more than thirty awards was not evident pre-award and can be challenged later. ECF No.

412 at 29:13-31:17. The Federal Circuit recently addressed the same issue in Oak Grove Technol-

ogies, LLC v. United States, — F.4th —, 2024 WL 4138392, at *7-8 (Fed. Cir. Sept. 16, 2024).

There, the plain language of a solicitation showed that the Army intended not to engage in discus-

sions but reserved the right to, in its “sole discretion.” Id. at *7. The Federal Circuit held that the

offeror understood that the Army would likely not hold discussions and forfeited any challenge to

the Army’s eventual decision not to hold those discussions because the offeror did not challenge

the plain terms of the solicitation pre-award. Id. at *8. Likewise, here, the VA’s intention to limit

itself to thirty awardees was evident on the face of the solicitation and could have been challenged

pre-award.

The plaintiffs also point to Congress’s investigation to argue that the government made an

arbitrary decision to award only thirty contracts. ECF No. 274 at 113-14 [¶¶460-62]; ECF No. 275

at 99 [¶¶449-51]; ECF No. 276 at 115 [¶¶515-17]; ECF No. 277 at 102-03 [¶¶450-52]; ECF No.

279 at 132-33 [¶¶581-83]; see ECF No. 288 at 40-41 [¶169]. But that is just another way of chal-

lenging the terms of the solicitation. See Smith v. Texas, 550 U.S. 297, 314 (2007) (a claim’s label

10 does not change its substance). The solicitation stated that the government intended to award thirty

contracts, and the court gives the solicitation its plain meaning. McAbee Construction Inc. v.

United States, 97 F.3d 1431, 1434-35 (Fed. Cir. 1996).

Neither caveat in the solicitation conflicts with or undermines the solicitation’s clear state-

ment that the government intended to award only thirty contracts. The plaintiffs cannot challenge

that aspect of the solicitation, evident on its face, now that the VA has gone through with the award

process. See generally Blue & Gold, 492 F.3d at 1313; Oak Grove, 2024 WL 4138392, at *7-8.

B. Plaintiffs may challenge the VA’s evaluation of offerors’ small business par- ticipation commitment

The government moves to dismiss the following allegations from thirteen plaintiffs that

challenge the VA’s evaluation of offerors’ small business participation commitment.

Plaintiff Complaint ECF No. Counts Veteran First 281 II, III Innovenue 292 I, II TISTA 294 II, III, X Arrow Arc 274 II, X Systematic Innovations 282 II, III Vision Tech 277 II, X Omni Cares 276 II, X Government Healthcare 288 XI Solutions King Street 301 II Intellect 275 II, XI Nine Line 297 VIII, IX, X T4NG2 JV 279 II, X DecisionPoint 283 I (¶¶66-69)

ECF No. 307 at 14.

Each of those plaintiffs alleges that the VA acted arbitrarily by failing to evaluate and val-

idate the offerors’ small business participation commitments. ECF No. 274 at 42-52 [¶¶136-71]

(Arrow Arc); ECF No. 275 at 40-43 [¶¶142-55], 94-97 [¶¶421-38] (Intellect); ECF No. 276 at 38-

42 [¶¶135-48], 87-90 [¶¶391-407] (Omni Cares); ECF No. 277 at 39-42 [¶¶135-48], 88-91 [¶¶391-

11 405] (Vision Tech); ECF No. 279 at 43-46 [¶¶158-71], 94-97 [¶¶414-30] (T4NG2 JV); ECF No.

281 at 10-16 [¶¶44-66] (Veteran First); ECF No. 282 at 10-16 [¶¶44-66] (Systematic Innovations);

ECF No. 283 at 17 [¶¶66-69] (DecisionPoint); ECF No. 288 at 38-39 [¶¶154-59] (Government

Healthcare Solutions); ECF No. 292 at 9-16 [¶¶27-60] (Innovenue); ECF No. 294 at 28-32 [¶¶107-

24], 46-47 [¶¶183-89] (Tista); ECF No. 297 at 41-44 [¶¶151-66] (Nine Line); ECF No. 301 at 13-

15 [¶¶53-61], 16-21 [¶¶62-77] (King Street).

The government argues that the solicitation clearly explains the VA’s intended small-busi-

ness-participation evaluation process, which required only an “acceptability” review for proposals

committing to spend less than a 75% of their funds on small businesses. ECF No. 307 at 14-22.

According to the government, a stricter review for “realism” was limited to proposals that com-

mitted to spend 75% or more of their funds on small businesses. The government argues that the

plaintiffs’ challenge would impose a “realism” requirement for everyone, contrary to the solicita-

tion’s terms. Id. at 13-14. Further, according to the government, an offeror’s compliance with its

own commitment is a matter of post-award contract administration, not proposal evaluation. Id. at

15 (citing AR1941; AR1945).

By stating that the VA would conduct an acceptability review to “validate or invalidate the

claimed points” (AR1939-41 (M.1.1-1.2)), the solicitation contemplated some amount of mean-

ingful review of the offerors’ proposed small business participation commitments. Further, the

solicitation required all offerors “to submit Small Business Participation Commitment infor-

mation.” AR1935 (L.13.3). The solicitation stated that the VA would evaluate that information “to

determine the extent to which the Offeror demonstrates a commitment to meeting the Small Busi-

ness Participation Requirement for this procurement.” AR1945 (M.4.3). While the VA required

supporting narratives only for a proposed commitment of 75% or greater “to determine whether it

12 is reasonably realistic,” there was still some amount of assessment the VA was required to under-

take for lower commitments. Id.; see also AR1213 (answer 613). Thus, the solicitation contem-

plated some amount of review for any offeror’s small-business-participation proposal. Further-

more, the implementing statute for government procurements likewise requires the government to

“evaluate” the proposals it receives. 41 U.S.C. § 3701(a) (“An executive agency shall evaluate

sealed bids and competitive proposals, and award a contract, based solely on the factors specified

in the solicitation.”).

While the government argues that compliance with the small business participation com-

mitment is a matter of contract administration that will be addressed post-award (see AR1863),

because the VA awarded points for the commitment, it is also a matter of proposal evaluation.

Nothing in the solicitation confines the VA’s review to the post-award timeframe.

Thus, the relevant question is whether the VA conducted a meaningful review to the extent

that it is required by the statute and the solicitation. Although the government frames the plaintiffs’

arguments as challenges to the terms of the solicitation (ECF No. 307; ECF No. 376), the plaintiffs

are in substance challenging the small-business-participation evaluation process the VA under-

took, to determine whether that process was sufficient under the terms of the solicitation read in

light of the requirements of the statute. “[A] bidder cannot be expected to challenge an agency’s

evaluation of bids, in contrast to the terms of solicitation, until the evaluation occurs.” Bannum,

Inc. v. United States, 779 F.3d 1376, 1381 (Fed. Cir. 2015). Thus, the small-business-participation

question cannot be decided on a motion to dismiss.

None of this discussion implies that the plaintiffs’ claims would prevail on summary judg-

ment. The VA’s evaluation process may have been sufficient under the terms of the solicitation

and requirements of the statute. It only means that the claims survive a motion to dismiss.

13 C. Plaintiffs may challenge the VA’s evaluation of veteran employment

The government moves to dismiss the following allegations from twelve plaintiffs that

challenge the VA’s evaluation of offerors’ veteran employment figures.

Plaintiff ECF No. Count(s) Kahu 285-1 III Intellect 275 X Arrow Arc 274 IX Government Healthcare Solutions 288 X Omni Cares 276 IX Vision Tech 277 IX Systematic Innovations 282 I King Street 301 I Veteran First 281 I DecisionPoint 283 I (partial, ¶¶ 59-60, 69(2)) Nine Line 297 V (partial, ¶¶ 51, 133) T4NG2 JV 279 IX

ECF No. 307 at 24.

Those plaintiffs allege that the VA was required to—and did not—investigate the veracity

of the offerors’ self-reported veteran employment figures. See, e.g., ECF No. 281 at 9 [¶36] (Vet-

eran First, alleging that the VA should not have accepted substantiating documentation “at face

value”); ECF No. 282 at 9 [¶36] (Systematic Innovations); ECF No. 283 at 16-17 [¶¶59-60, 69]

(DecisionPoint, alleging that the VA failed to “affirmatively validate offerors’ proposal infor-

mation”); ECF No. 288 at 31 [¶151] (Government Healthcare Solutions); ECF No. 301 at 11 [¶¶41-

42] (King Street, criticizing the failure to “evaluate whether the Awardees’ veterans employment

numbers were actually correct”); ECF No. 320 at 28-29 [¶¶71-73] (Kahu, alleging that the “VA

was required to determine the extent to which the claimed Veterans were employees that correlated

to the [unique employer identification number] of the Prime Offeror submitting the proposal”).

The plaintiffs argue that the VA allowed bidders to submit unchecked, manipulated scores. ECF

No. 274 at 91-92 [¶¶390-93] ECF No. 275 at 89-93 [¶¶397-420]; ECF No. 276 at 83-87 [¶¶370-

14 90]; ECF No. 277 at 83-88 [¶¶370-90]; ECF No. 279 at 90-94 [¶¶393-413]. Nine Line raises, in

particular, the VA’s evaluation of DigiPathy, alleging that the VA failed to consider “readily-

available public information indicating that DigiPathy’s actual veteran employment percentage is

very likely substantially less than its claimed veteran employment percentage.” ECF No. 297 at 37

[¶133]; see id. at 15 [¶51].

The government argues that the solicitation did not require the VA to investigate the accu-

racy of offerors’ self-reported, certified veteran employment figures. ECF No. 307 at 24-28. Ac-

cording to the government, the VA only had to conduct an acceptability review, in which the VA

evaluated only an offeror’s substantiating documents and self-reporting spreadsheets. Id. at 27

(citing AR1941, AR1944). Thus, according to the government, the VA did not need to look beyond

any proposal to certify the offeror’s veteran employment figures. Id. at 24-28.

As with small business participation (supra II.B), by stating that the VA would conduct an

acceptability review (AR1939-41 (M.1.1-1.2)), and in light of the statutory obligation to “evalu-

ate” proposals (41 U.S.C. § 3701(a)), the solicitation contemplated some amount of review of the

offerors’ veteran employment figures. The solicitation explained that the “Acceptability Review

consists of evaluating the Offeror’s substantiating documentation to validate or invalidate the

claimed points” (AR1941 (M.1.2)), so the level of evaluation that the VA intended to do was

clearly low. But the solicitation also explained that each “proposal will be evaluated to determine

the extent to which Veterans are employed by the Prime Offeror.” AR1944 (M.4.2). Thus, the

solicitation did not indicate that the VA would confine its review to the statements made by offe-

rors, within the self-reported documentation on veteran employment, without any checks on those

statements.

15 The solicitation also instructed that “[t]o the extent possible, each document shall contain

the Offeror’s [unique entity identification number] and [commercial and government entity code].”

AR1905 (L.10.2). Although that information was not mandatory (id.), each of the intervenors sub-

mitted it (ECF No. 412 at 85:21-86:7). The unique entity identification number and commercial

and government entity code databases contain information relevant to the offerors’ veteran em-

ployment percentages. As the government explained, unique entity identification numbers show

whether an offeror is a small business or not. ECF No. 412 at 101:11-16. Knowing the size of a

business could show that an offeror was relying on an incorrect denominator in calculating the

percentage of employees that were veterans. Thus, the VA had access to additional information

from the offerors’ proposals that could be used to conduct an acceptability review.

The relevant question here is whether the VA conducted a meaningful review, meeting its

obligations under the statute and the solicitation. Although the government frames the argument

as a challenge to the terms of the solicitation (ECF No. 307; ECF No. 376), the plaintiffs are also

challenging the VA’s evaluation process and whether the VA actually reviewed the documents the

offerors submitted. That question cannot be decided on a motion to dismiss. See Bannum, 779 F.3d

at 1381.

D. Plaintiffs may challenge the VA’s evaluation of relevant experience

The government moves to dismiss the following allegations from six plaintiffs that chal-

lenge the VA’s evaluation of offerors’ relevant experience.

16 Plaintiff ECF No. Count(s) CSE Vets 295 I VA Technology 296 I XI (partial, [¶¶442-44, 450-52, 456- T4NG2 JV 279 58]) Mission Training 289 II InteVets 139 II 360 Innovative Solutions 291 IV

ECF No. 307 at 28.

Those plaintiffs allege that the VA was required to—and did not—review all of the sub-

mitted information in evaluating offerors’ relevant experience. ECF No. 139 at 16 [¶¶58-64] (In-

teVets); ECF No. 279 at 97-102 [¶¶431-461] (T4NG2 JV); ECF No. 289 at 30-34 [¶¶77-91] (Mis-

sion Training); ECF No. 291 at 31-33 [¶¶148-54] (360 Innovative); ECF No. 295 at 5-13 [¶¶23-

52] (CSE Vets); ECF No. 296 at 6-13 [¶¶23-47] (VA Technology). According to the plaintiffs,

offerors submitted narratives in Attachment 17 with details that demonstrated their relevant expe-

rience, and the VA ignored those details in favor of the separate scope-of-work documents. Id.

The government argues that the solicitation required the VA to validate offerors’ points for

their relevant experience projects by evaluating all substantiating documentation, not just the state-

ments in Attachment 17. ECF No. 307 at 30.

The parties seem to mostly agree on the requirements of the solicitation with respect to

relevant experience: The VA was required to review and evaluate each of the documents that the

offerors submitted. The solicitation stated that the VA would conduct an acceptability review of

each offeror’s self-scored relevant experience, “evaluating the Offeror’s substantiating documen-

tation to validate or invalidate the claimed points.” AR1941. The parties disagree on whether the

VA sufficiently evaluated those documents. That is a merits question, not a challenge to the solic-

itation’s methodology. As the government acknowledges, if the “plaintiffs challenge whether [the]

17 VA had a rational basis for how it weighed conflicting information ... , that would indeed be a

merits issue” that would make dismissal inappropriate. ECF No. 376 at 25.

The plaintiffs raise whether the VA ignored some substantiating documents in favor of

other substantiating documents. That challenge to the VA’s evaluation process, like the challenges

to small business participation and veteran employment figures, cannot be decided on a motion to

dismiss.

E. Plaintiffs may not challenge the status of certain joint ventures as service-dis- abled veteran-owned small business ventures

The government moves to dismiss allegations from eleven plaintiffs challenging the VA’s

determination that certain joint ventures were eligible as service-disabled veteran-owned small

business (SDVOSB) ventures.

Plaintiff ECF No. Count(s) Freedom Tech 298 III Pinnacle 293 IV, V TISTA 294 V Government Healthcare Solutions 288 IX Intellect 275 VI Arrow Arc 274 VI Omni Cares 276 VI T4NG2 JV 279 VI Vision Tech 277 VI Systematic Innovations 282 V Veteran First 281 V

ECF No. 307 at 31-32.

Those plaintiffs allege that seven joint venture awardees were not eligible for the reserved

SDVOSB positions because those awardees were required to be, but were not, certified in the

SBA’s Veteran Small Business Certification (VetCert) database. See ECF No. 274 at 73-78

[¶¶301-20] (Arrow Arc); ECF No. 275 at 70-75 [¶¶307-26] (Intellect); ECF No. 276 at 69-74

[¶¶300-19] (Omni Cares); ECF No. 277 at 69-74 [¶¶300-19] (Vision Tech); ECF No. 279 at 74-

18 79 [¶¶323-42] (T4NG2 JV); ECF No. 281 at 19-21 [¶¶74-84] (Veteran First); ECF No. 282 at 19-

20 [¶¶74-84] (Systematic Innovations); ECF No. 288 at 37 [¶¶142-47] (Government Healthcare

Solutions); ECF No. 293 at 17-20 [¶¶65-78] (Pinnacle); ECF No. 294 at 38-40 [¶¶142-53]

(TISTA); ECF No. 298 at 30-32 [¶¶1-8] (Freedom Tech). Those plaintiffs argue that several stat-

utory and regulatory provisions require joint ventures to be certified. They also argue that addi-

tional sources—the frequently-asked-questions page on the SBA’s VetCert website and the ques-

tion-and-answer section of the second draft of the solicitation—support their understanding. Be-

cause the VA awarded seven of the SDVOSB-reserved positions to joint ventures that were not

certified in VetCert, the plaintiffs allege that the VA acted arbitrarily.

The government argues that nothing in the solicitation, including the incorporated statute

and regulations, requires a joint venture to be certified in VetCert. Instead, the government argues,

the solicitation requires only that the managing partner of the joint venture be certified; the joint

venture entity does not need to be independently certified. ECF No. 307 at 32. According to the

government, the additional sources that the plaintiffs cite are not part of the solicitation. ECF No.

307 at 33-35; ECF No. 376 at 32-35. Thus, according to the government, the solicitation’s terms

are clear, and the plaintiffs have not stated a claim. ECF No. 307 at 31-36; ECF No. 376 at 28-42.

The solicitation was clear that joint ventures did not need to be independently certified in

VetCert to be eligible for an SDVOSB-reserved award. That is evident from the text of the solici-

tation itself, the incorporated statutes and regulations, and the extrinsic evidence the plaintiffs cite.

The government is correct that the solicitation requires only that the joint venture’s managing

partner be certified. See generally ECF No. 359 at 7-8 (Pinnacle admitting that only the managing

partner needs to be certified despite opposing dismissal on this ground).

19 The solicitation discusses the certification requirement for joint ventures. Part I.17 defines

SDVOSBs and outlines the requirements to be considered for one of the SDVOSB-reserved

awards, as an individual business or as a joint venture. AR1886-1889. Paragraph (f) addresses the

joint venture eligibility requirements, as distinct from SDVOSB individual business eligibility re-

quirements. AR1889. It states that a “joint venture may be considered eligible as an SDVOSB if

the joint venture complies with the requirements in 13 CFR 128.402 and the managing joint ven-

ture partner makes the representations under paragraph (c) of this clause.” Id. The cited regulation,

13 C.F.R. § 128.402(a), clarifies that the “joint venture itself need not be a certified VOSB or

SDVOSB” and adds that, to be eligible for an award, only the managing partner must satisfy all of

the requirements, including certification. As some intervenors point out, an earlier proposed ver-

sion of the regulation required SDVOSB joint ventures to be certified to be eligible, but that re-

quirement was eliminated from the final rule. ECF No. 412 at 128:10-129:6; compare 87 F.R.

40160 (§ 128.402(a)) (proposed rule) (“Certification. For [certain] VA contracts, a … joint venture

must be certified to submit an offer…. For all other … contracts, joint ventures may apply for

certification.”) with 87 F.R. 73421 (§ 128.402(a)) (final rule). While the parties argue about the

requirements of paragraph (c), it is cited in paragraph (f) only for the representations that the man-

aging partner—as an SDVOSB itself—must make. Paragraph (c) otherwise addresses SDVOSBs

that are individual businesses, not joint ventures. Those businesses, applying alone, must be certi-

fied in VetCert. But the requirements of paragraph (c) generally apply only to individual busi-

nesses. AR1887.

Reading the entire solicitation, for a joint venture, only the managing partner must be cer-

tified in VetCert. There is no conflict between section I.17(f) and the remainder of I.17, or with

any other incorporated provision.

20 The other evidence that the plaintiffs cite does not change the solicitation’s meaning, that

only the managing partner must be certified in VetCert. The SBA’s website’s frequently-asked-

questions page is unrelated to this particular solicitation. “If the provisions of the solicitation are

clear and unambiguous, they must be given their plain and ordinary meaning; [a court] may not

resort to extrinsic evidence to interpret them.” Banknote Corp. of America, Inc. v. United States,

365 F.3d 1345, 1353 (Fed. Cir. 2004). The draft solicitation’s question-and-answer section stated

that any answers at that time would not override the terms of the ultimate solicitation. AR484

(“[T]he information contained within the Questions and Answers does not take precedence to the

forthcoming final T4NG2 solicitation.”). Thus, any earlier answers also cannot override the terms

of the ultimate solicitation. See generally Harvey v. United States, 8 Ct. Cl. 501, 506 (1872) (“[T]he

written contract is the last and most deliberate act of the parties … therefore all the preliminary

papers passing between the parties while the contract was in fieri, are … inadmissible to contradict

or vary the written agreement.”); cf. Per Aarsleff A/S v. United States, 829 F.3d 1303, 1311 (Fed.

Cir. 2016) (explaining that “[b]ecause the relevant question and answer was incorporated into the

final … solicitation, it is part of the final solicitation” and therefore controls).

And both pieces of extrinsic evidence actually support the government’s interpretation of

the solicitation. The frequently-asked-questions page is consistent with the solicitation, explaining

that “Joint Ventures do not get certified as SDVOSBs or VOSBs” by the SBA. See Answer to

Does my Joint Venture need to get certified by SBA?, Amanda Nappier, Does my Joint Venture

need to get certified by SBA? (Dec. 22, 2023), https://sbaone.atlassian.net/wiki/spaces/VCKB/

pages/2861662428/Does+my+Joint+Venture+need+to+get+certified+by+SBA.

The final solicitation’s question-and-answer section rewrote the earlier draft answer to

align with the rest of the solicitation. The earlier draft question stated, “Since the SBA assumed …

21 verification responsibilities … and since the SBA’s recently published final rule … indicates that

[joint ventures] will no longer be certified / verified … , please confirm that … so long as the

Managing Member of the [joint venture] is a current verified SDVOSB / VOSB, the [joint venture]

is considered verified / certified.” AR 649. The draft answer responded, “As long as the [joint

venture] is registered in VetCert and the managing partner is registered as an SDVOSB, then the

[joint venture] itself is also considered an SDVOSB.” Id. In contrast, the final question-and-answer

section omitted the reference to the joint venture being registered, stating, “[Question:] Can the

individual partners be listed in the SBA Certification database, or must the Joint Venture be listed?

[Answer:] The managing joint venture partner must be listed in addition to the [joint venture]

complying with the requirements in 13 CFR 128.402.” AR1205.

The SBA’s Office of Hearings and Appeals agreed with the government’s interpretation

when it dismissed a challenge to seven awardees under the same contract at issue here. In a post-

award bid protest in front of the SBA, the parties made the same argument, that the same joint

ventures were ineligible for an award because they had not been certified in VetCert. VSBC Protest

of Freedom Technology Partners, LLC, SBA No. VSBC-321-P, 2023 WL 8798603, at *1 (Dec. 4,

2023), reconsideration denied, SBA No. VSBC-329-P, 2024 WL 301965 (Jan. 9, 2024). The ad-

ministrative judge explained, “there is no requirement that [joint ventures] certify as SDVOSBs

under 13 C.F.R. § 128.402(a).” VSBC Protest of Freedom Technology Partners, 2024 WL 301965

at *6.

Some plaintiffs argue that even if the solicitation did not require the joint venture to be

certified, the solicitation still required the joint venture to be “designated” as an SDVOSB. E.g.,

ECF No. 359 at 5-8. Certification and designation are distinct: Certification is governed by 13

C.F.R. Part 128. As the government argues, “[d]esignation is nothing that’s provided for in any

22 statute, regulation, nor the solicitation itself.” ECF No. 412 at 118:15-119:4. An existing SDVOSB

may self-designate as a joint venture, but that is not legally binding and does not make the joint

venture eligible to compete as an SDVOSB. Id. Indeed, the government points out that designation

allows an already-certified SDVOSB to claim a joint venture. ECF No. 376 at 29. So designation

comes after, not instead of, certification.

Some plaintiffs rely on an email from a VA director of procurement services, Robert Kir-

zow, to other VA employees, stating that the SBA is “having [joint ventures] entered into VetCert

with a [joint venture] Designation.” AR331496.002. But that email chain, in addition to being

extrinsic evidence, supports the government’s interpretation. Later in the same email chain, he

stated that joint ventures are not required to be designated. Id. Further, in response to Mr. Kirzow’s

emails, the VA deputy director of acquisition support confirmed that as long as “the managing

member [of the joint venture] is the SDVOSB and is certified, the [joint venture] is good.”

AR331496.001-.002.

The plaintiffs also rely on statements from the SBA’s website: frequently-asked-question

pages regarding the VetCert database and the certification program. ECF No. 274 at 74 [¶306];

ECF No. 275 at 71 [¶312]; ECF No. 276 at 70 [¶305]; ECF No. 277 at 70 [¶305]; ECF No. 279 at

75-76 [¶328]; ECF No. 293 at 18 [¶70]; ECF No. 294 at 19, 38 [¶¶64, 145]; ECF No. 298 at 32

[¶6]. The website states that joint ventures “must be ‘designated’ as eligible.” Amanda Nappier,

Does my Joint Venture need to get certified by SBA? (Dec. 22, 2023); see Small Bus. Admin.,

Veteran Small Business Certification Program FAQs (Dec. 2022), https://www.sba.gov/sites/de-

fault/files/2022-12/VetCert_FAQs_121322_508c.pdf, p. 6 at ¶ 15(c)(6) (“Joint ventures do not re-

quire certification although the managing partner must be SBA certified and the joint venture must

request designation.”).

23 But the solicitation and the regulations it incorporates only discuss certification. Nothing

in the solicitation’s terms (see AR1886-1889 (I.17)) or the regulations (13 C.F.R. § 128.402;

VAAR § 819.7003(b)-(c)) indicates that joint ventures must be designated after the managing part-

ner is certified. Only the requirements in the solicitation and regulations—which are limited to

certification—control. Per Aarsleff A/S, 829 F.3d at 1311. Thus, the solicitation is clear, and the

government did not impose an additional designation requirement on SDVOSB joint ventures.

Because the solicitation clearly states the eligibility requirements for joint ventures to be

considered SDVOSBs, the plaintiffs cannot challenge that aspect of the solicitation, now that the

VA has awarded contracts under it. See Blue & Gold, 492 F.3d at 1313.

F. Tribility fails to state a claim for relief

The government moves to dismiss Tribility’s complaint. Tribility—a joint venture between

Trilogy Federal LLC and Ibility LLC—alleges that the VA wrongly disqualified its proposal when

it failed to name a responsible manager in its joint venture agreement. ECF No. 99 at 3 [¶4], 6

[¶19]. Tribility argues that, under the applicable regulations, it did not need to identify a responsi-

ble manager until after the government awarded the contract. Id.; ECF No. 350 at 3-4. Tribility

also argues that the government acted arbitrarily and capriciously by not requesting that infor-

mation from Tribility when seeking clarifications from other offerors during the evaluation pro-

cess. ECF No. 350 at 5.

The government moves to dismiss Tribility’s complaint, which would result in also dis-

missing Tribility as a party from the consolidated action. ECF No. 307 at 36-38. The government

argues that the VA complied with the terms of the solicitation when it disqualified Tribility for

failing to identify a responsible manager. Id. (citing AR1911-16). The government argues that the

solicitation is clear and required Tribility to provide that information in its proposal. Id. at 37. The

government adds that the VA could not have sought clarification from Tribility because

24 clarification is limited to clerical issues, and Tribility’s omission of a material requirement was

beyond the scope of clarification. ECF No. 376 at 46.

Tribility fails to state a claim for relief because the solicitation is clear that Tribility needed

to identify a responsible manager. Part L.10.5 of the solicitation lays out the requirements for

submitting a proposal as a joint venture. AR1911-16. Each offeror must “submit a complete copy

of the joint venture agreement that includes the information required by 13 CFR 125.8(b)”

(AR1911) or “by 13 CFR 128.402(c)” (AR1913) as part of its proposal. Both regulations—which

the solicitation excerpted in relevant part—state that every joint venture agreement “must contain

a provision … designating a named employee … as the manager with ultimate responsibility for

performance of the contract (the ‘Responsible Manager’).” AR1911 (quoting 13 C.F.R.

§ 125.8(b)(2)(ii)); AR1913-14 (quoting 13 C.F.R. § 128.402(c)(2)). The VA cited that text from

the regulations as the reason for Tribility’s disqualification in a debrief. ECF No. 99-1 at 37.

Tribility argues that only section 128.402 applies to it. ECF No. 350 at 3-4. But, even if

true, 2 Tribility’s argument—that the text of the regulation “only required Tribility to designate an

individual [as a responsible manager] once it had received notice from the Government that is was

an apparently successful offeror” (ECF No. 350 at 3)—does not follow. See AR1911-16. Section

128.402(e) governs certification of compliance before and at the time of an offer. Section

128.402(e)(2)(ii) states that “[a]lthough the managing venturer must be a certified VOSB or

SDVOSB as of the date of the joint venture’s initial offer … the joint venture must meet the joint

venture agreement requirements set forth in paragraph (c) of this section at the time the joint ven-

ture is identified as an apparent successful offeror.” Section 128.402(e)(2)(ii) thus creates an

2 Tribility’s joint venture agreement apparently was established under section 128.8, not section 128.402. AR107504.

25 additional certification obligation after an offeror is successful. It does not relieve an offeror of the

obligation to identify a responsible manager in the proposal in the first place under section

128.402(c)(2).

Even if subsections (c) and (e) were in conflict, the solicitation quotes subsection (c) but

does not quote or incorporate by reference subsection (e). AR1913-15. The Federal Circuit is “re-

luctant to find that statutory or regulatory provisions are incorporated into a contract with the gov-

ernment unless the contract explicitly provides for their incorporation.” St. Christopher Associates,

L.P. v. United States, 511 F.3d 1376, 1384 (Fed. Cir. 2008); see Northrop Grumman Information

Technology, Inc. v. United States, 535 F.3d 1339, 1345 (Fed. Cir. 2008) (The language of the

contract “must explicitly, or at least precisely, identify the written material being incorporated.”).

Tribility does not point to any authority requiring the court to read the absent parts of an incorpo-

rated regulation into the solicitation. See generally ECF No. 99; ECF No. 350.

Tribility admits that it did not identify a responsible manager in its proposal. ECF No. 99

at 3 [¶4], 6 [¶19]. That error was material and a basis for disqualification. AR1916 (L.10.5) (“Fail-

ure to provide the Government with the requested documentation establishing the joint venture

will be considered a material nonconformity and will result in the Offer being rejected.”). “A pro-

posal that fails to conform to the material terms and conditions of the solicitation should be con-

sidered unacceptable.” Allied Technology Group, Inc. v. United States, 649 F.3d 1320, 1329-30

(Fed. Cir. 2011).

As for Tribility’s argument that the VA should have sought clarification rather than reject-

ing Tribility’s offer, it is not clear that the VA was even at liberty to seek a clarification to fix a

material error. See Man Tech Advanced Systems Int’l v. United States, 141 Fed. Cl. 493, 507 (2019)

(“In contrast to material errors which cannot be waived or fixed without discussions, [Federal

26 Acquisition Regulation] 15.306(a) provides that obvious, clerical mistakes may be fixed through

clarifications. … [However], clarifications may not provide new information or alter already pro-

vided information.”). Regardless, nothing required the VA to seek a clarification here. AR1939

(stating that the VA “may conduct clarifications”).

Because the solicitation was clear that an offer from a joint venture like Tribility needed to

include a responsible manager, Tribility cannot challenge that aspect of the solicitation now, post-

award. Tribility’s complaint fails to state a claim on which this court can grant relief.

G. Government Healthcare Solutions’ count IV is withdrawn

In its complaint, Government Healthcare Solutions alleged that the VA “failed to evaluate

whether Offerors complied” with the solicitation’s requirement that each offeror could only be a

party to a single proposal. ECF No. 288 at 29-30 [¶¶104-08]. According to Government Healthcare

Solutions, the VA arbitrarily and capriciously reviewed only 78 of the proposals that it received

and thus did not know whether there were any duplicate offerors. Id. at 30 [¶¶ 106-08]. Only Gov-

ernment Healthcare Solutions made that allegation in its complaint.

Intervenor GovCIO moved to dismiss that count in Government Healthcare Solutions’

complaint on a waiver theory. ECF No. 310 at 17. In response, Government Healthcare Solutions

withdrew that count—count IV of its amended complaint—and stated that it “does not oppose

dismissal of this protest ground.” ECF No. 367 at 5. Because Government Healthcare Solutions

voluntarily withdrew its claim, the court will dismiss count IV of its amended complaint.

H. The court will not dismiss the additional intervenor challenges

Any additional issues on which intervenors move to dismiss that are not addressed in the

government’s motion (e.g., ECF No. 308 at 20-22 (VCH Partners); ECF No. 309 at 14-17 (T4De-

signs); ECF No. 310 at 3, 19-20 (GovCIO); ECF No. 315 at 29-34 (Canopy Health and RP &

Partners)), including the issue involving ThunderYard Liberty and relevant experience projects

27 being available to only one offeror, address the merits of the VA’s evaluation process. See gener-

ally ECF No. 351 at 7-8, 17-18; ECF No. 369 at 5-6. The court will deny those grounds of the

III. Conclusion

For the reasons stated above, under this court’s rule 12(b)(6), the court grants the govern-

ment’s motion to dismiss the counts of plaintiffs’ complaints that raise the VA’s decision to award

only thirty contracts and the counts that raise the VA’s evaluation of eligibility of certain joint

ventures as service-disabled veteran-owned small businesses. The court grants intervenors’ mo-

tions to dismiss on the same grounds.

The court grants the government’s motion to dismiss Tribility’s complaint and dismisses

Tribility as a party to this case. There is no reason for delay and thus under rule 54(b), the Clerk

of the Court shall enter final judgment as to Tribility. The court further orders the deconsolidation

of member case, Tribility LLC v. United States (Case No. 24-530), from this action. Case No. 24-

530 is dismissed.

The court also grants GovCIO’s motion to dismiss count IV of Government Healthcare

Solutions’ amended complaint (ECF No. 288).

The counts of complaints that are dismissed are thus summarized in the following table.

28 Plaintiff ECF No. Count(s) Arrow Arc 274 VI, XII Omni Cares 276 VI, XII Vision Tech 277 VI, XII Intellect 275 VI, XII T4NG2 JV 279 VI, XVI Government Healthcare 288 IV, IX, XII Solutions Freedom Tech 298 III Pinnacle 293 IV, V TISTA 294 V Systematic Innovations 282 V Veteran First 281 V Tribility 99 Entire complaint

The court denies the government’s motion to dismiss the counts of plaintiffs’ complaints

that raise the VA’s evaluation of small business participation commitment, veteran employment,

and relevant experience. The court denies intervenors’ motions to dismiss on the same grounds.

The court further denies all additional grounds for dismissal raised by the intervenors.

IT IS SO ORDERED.

s/ Molly R. Silfen MOLLY R. SILFEN Judge