Technatomy Corporation v. United States

• Court: United States Court of Federal Claims
• Decided: April 7, 2026
• 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, 24-519, 24-542, 24-547, 24-571, 24-579, 24-584, 24-588, 24-590, 24-604, 24-623, 24-630, 24-673, 24-797

TECHNATOMY CORP., et al.,

Plaintiffs,

v.

THE UNITED STATES, Consol. No. 24-451 Defendant, 2ULJLQDOO\Iiled March 30, 2026 3XEOLFO\ILOHG$SULO and

GOVCIO, LLC, et al.,

Defendant-Intervenors.

OPINION AND ORDER Granting the government’s and intervenors’ motions for judgment on the administrative record, denying plaintiffs’ motions for judgment on the administrative record, and denying King Street’s motion to exclude evidence

In this bid protest case, the Department of Veterans Affairs (VA) solicited proposals to

overhaul its information technology system over the next five to ten years.1 The solicitation ex-

plained that, with some possible variations, the VA would award contracts to the thirty offerors

with the highest-rated proposals. The VA would then issue task and delivery orders to that pool of

awardees. The VA received 173 eligible proposals from which it selected its top thirty. Thirty

unsuccessful offerors filed suits challenging the VA’s award decision, and fifteen successful offe-

rors intervened to defend their awards. In September 2024, this court granted in part and denied in

part the government’s and intervenors’ motions to dismiss. Soon after that, the court granted the

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1 government’s motion to remand the case to the VA for reconsideration of the challenged decision.

After reconsidering the solicitation and the protesters’ arguments, the VA issued a new award

decision. The VA added three new offerors to the awardee pool, canceled one award, and exercised

the solicitation’s on-ramp provision to preserve awards made to two offerors, resulting in a list of

32 awardees.

Seventeen protesters now move for judgment on the administrative record based on the

VA’s most recent award decision.2 The government cross-moves for judgment on the administra-

tive record, as do fifteen intervenors.3 Because the VA’s determinations were not arbitrary or ca-

pricious, and the protesters have not shown that they have been prejudiced by any errors the VA

may have made, the court will grant the government’s and intervenors’ motions for judgment on

the administrative record and will deny the protesters’ motions for judgment on the administrative

record. One protester, King Street, separately moves to exclude a declaration the government pro-

vided with its cross-motion, but because that declaration appropriately addresses the government’s

prejudice arguments, the court will deny King Street’s motion.

I. Background

I have previously described the solicitation at issue in this case. See Technatomy Corp. v.

United States, 173 Fed. Cl. 491 (2024). For brevity, I will not repeat that discussion, and I will

discuss the substance of the VA’s actions on remand as relevant in the discussion sections below.

2 One protester, Insignia, filed a motion for judgment on the administrative record, but then, before its reply brief was due, moved to voluntarily dismiss its complaint; the court granted the motion. ECF Nos. 712, 713. Because Insignia has been dismissed from the case, the court will not address the arguments made in its motion for judgment on the administrative record (ECF No. 583) and does not count it among the moving protesters. 3 One interventor, Taurian Consulting, cross-moved for judgment on the administrative record (ECF No. 648) and remains part of the case, but it did not file a reply brief.

2 After the government’s and intervenors’ motions to dismiss were granted in part and denied

in part, on remand, the VA identified inconsistencies and other errors in its evaluations of thirteen

proposals. AR404089.4 The VA corrected its scoring to address the errors. As a result, three offe-

rors (Technatomy, Taurian, and Peregrine) moved into the top thirty. AR404089-93. One offeror

(JTech) lost enough points to fall out of the top thirty, to ninety-eighth place. AR404106. Two

offerors (Deloitte and CGI) dropped out of the top thirty, to thirty-first and thirty-second place,

because of the others’ rise in rank. AR404106. The VA awarded contracts to the new top thirty

offerors and exercised the solicitation’s on-ramp provision to also award contracts to Deloitte and

CGI, resulting in 32 awards. AR404108.

In May 2025, the VA issued its new award decision (ECF No. 521), and this court reo-

pened the case, with one protester plaintiff—Tribility—having dismissed its appeal and not re-

joined the case (ECF Nos. 529, 548). The court dismissed Peregrine, Technatomy, and Taurian as

plaintiffs (ECF No. 529) and granted their motions to intervene as defendant-intervenors instead

(ECF Nos. 533, 536, 537).5 Several plaintiffs voluntarily dismissed their protests. ECF Nos. 544,

550, 551, 555, 558, 574, 575, 576. The remaining plaintiffs filed amended complaints and new

motions for judgment on the administrative record. The government and intervenors filed re-

sponses and cross-motions for judgment on the administrative record. Those motions and cross-

motions are now fully briefed. Plaintiff King Street moved (ECF No. 675) to exclude the declara-

tion of Jeffrey Neill, which was attached to the government’s cross-motion. That is also fully

briefed.

4 The parties submitted an administrative record to the court and also filed a joint appendix through ECF. I will cite the administrative record with the designation AR. All cited pages can be found in the joint appendix, ECF No. 733. 5 Although Technatomy is now an intervenor, for procedural simplicity, the court elected not to re-caption the case. ECF No. 529 at 3.

3 These tables list the relevant ECF numbers for the parties’ briefs on their motions for judg-

ment on the administrative record:

Plaintiff Motion Response and Reply Vision Tech Group, LLC 557 664 T4NG2 JV LLC 560 661 Arrow ARC LLC 562 660 Omni Cares, LLC 564 662 Intellect JV LLC 566 663 ThunderYard Liberty JV II, LLC 569 670 ClearView Technologies, LLC 570-1 667 General Dynamics Information Technology, Inc. 573 665 (GDIT) Innovenue, LLC, Systematic Innovations, LLC, and 584-1 668 Veteran First Technologies, LLC TISTA Science and Technology Corporation 581 666 Freedom Technology Partners, LLC 587 671 Pinnacle Computer Technology LLC 589-1 669 King Street Technology Partners, LLC 594-1 674 Mission Training LLC 592 673 Vector Innovative Solutions, LLC 595 672

Defendant / Intervenor Cross-Motion Reply and Response Government 644 717 Digipathy LLC 659 730 Cognosante MVH, LLC 657 731 Booz Allen Hamilton, Inc. 652-1 720 Technatomy Corporation 654 729 Science Applications International Corp. (SAIC) 653 721 Peregrine Digital Services, LLC 656-1 727 Veterans EZ Info Inc. (VetsEZ) 658 728 GovCIO, LLC 655 726 T4 Designs, LLC 650 724 Canopy Health, LLC 647 725 VCH Partners LLC 645 718 CGI Federal Inc. 649 719 ManTech Advanced Systems International, Inc. 646 722 ECS Federal, LLC 651-1 723 Taurian Consulting, LLC 648 N/A

The court heard oral arguments on the parties’ motions on February 11 and 12, 2026.

4 II. Discussion

The protesters raise many challenges to the VA’s award decisions. The government organ-

izes the challenges into rough topics, which the court generally adopts, addressing sub-issues

within those topics and making a few changes to the order of the topics.

A. Use of the on-ramp provision B. Clarifications C. Advanced software technologies D. The first four relevant experience projects and subcontractor letters of commitment E. Small business participation commitments F. Potential collusion G. Veteran employee percentages H. Joint venture agreements I. Alleged misrepresentations J. Awardee-specific evaluation issues K. Protester-specific evaluation issues L. SAM.gov registration M. Prejudice N. Injunctive relief O. King Street’s Motion to Exclude

The parties submitted approximately 1,955 pages of briefing discussing the dozens of is-

sues in this case. The court has read and considered every issue, even if not every issue is explicitly

discussed in the opinion. To the extent any specific issue is not explicitly discussed in the opinion,

it is because that issue is not material to the outcome of this case.

On a motion for judgment on the administrative record under rule 52.1 of the Rules of the

Court of Federal Claims, this court must determine whether, given all disputed and undisputed

facts, the evidence in the record establishes that the moving party has met its burden of proof.

Palantir USG, Inc. v. United States, 904 F.3d 980, 989 (Fed. Cir. 2018). The Tucker Act, as

amended by the Administrative Dispute Resolution Act of 1996, requires this court to review an

agency procurement decision under the standards provided by the Administrative Procedure Act

(APA). 28 U.S.C. § 1491(b)(1)-(4). This court’s review of an agency’s decision is “highly defer-

ential.” DynCorp International, LLC v. United States, 10 F.4th 1300, 1315 (Fed. Cir. 2021).

5 Under the APA, “an agency’s decision is to be set aside only if it is arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706. In the bid protest

context, according to the Federal Circuit, a “bid award may be set aside if either (1) the procure-

ment official’s decision lacked a rational basis; or (2) the procurement procedure involved a vio-

lation of regulation or procedure.” Banknote Corp. of America, Inc. v. United States, 365 F.3d

1345, 1351 (Fed. Cir. 2004) (quotation marks omitted).

Under this court’s “rational basis” review, the court determines “whether the contracting

agency provided a coherent and reasonable explanation of its exercise of discretion.” Mitchco In-

ternational, Inc. v. United States, 26 F.4th 1373, 1384 (Fed. Cir. 2022) (quotation marks omitted).

“Contracting officers are given broad discretion in their evaluation of bids,” and a court may not

substitute its judgment for the agency’s reasonable decision. DynCorp, 10 F.4th at 1311. A pro-

tester “bears a heavy burden” to demonstrate that the agency’s decision lacked a rational basis.

AugustaWestland North America, Inc. v. United States, 880 F.3d 1326, 1332 (Fed. Cir. 2018). A

protester must demonstrate “a clear and prejudicial violation of applicable statutes or regulations.”

Banknote, 365 F.3d at 1351 (quotation marks omitted). In other words, even if the court finds that

the agency acted arbitrarily or capriciously, a protester is entitled to relief only if it “was prejudiced

by that conduct.” Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005).

A. The VA reasonably used the solicitation’s on-ramp provision

Six protesters challenge the VA’s exercise of the solicitation’s on-ramp provision. See ECF

No. 584-1 at 16-19 (Innovenue, Systematic, Veteran First); ECF No. 589-1 at 34-35 (Pinnacle);

ECF No. 569 at 35-37 (ThunderYard); ECF No. 581 at 28-29 (TISTA). The solicitation begins

with an “inten[t] to award up to thirty contracts.” AR1939. The solicitation also explains that “[t]he

Government may utilize an On-Ramp to add additional prime Contractors through any means

deemed appropriate, including in the event an Off-Ramp is exercised.” AR1862. The solicitation

6 further notes that using the on-ramp is within the VA’s “sole discretion.” Id. The VA exercised the

on-ramp provision to maintain awards to Deloitte and CGI because both offerors were knocked

out of the top thirty not due to a reduction in their own points, but because of errors the VA made

in evaluating other proposals that increased those other offerors’ points. See AR404107. In general,

the protesters’ on-ramp challenges can be sorted into three categories: (1) fairness (ECF No. 569

at 35; ECF No. 581 at 28); (2) whether the exercise of the on-ramp provision required the VA to

add more service-disabled veteran owned small businesses (SDVOSBs) (ECF No. 584-1 at 18);

and (3) whether exercising the on-ramp provision violated the terms of the solicitation (ECF No.

589-1 at 34-35).

The VA rationally decided to exercise the on-ramp provision. The VA rationally deter-

mined that the interests of fairness were best served by maintaining Deloitte’s and CGI’s awards

when they fell out of the top thirty due to the VA’s errors rather than any errors of their own. The

solicitation left that decision to the VA’s “sole discretion.” AR1862.

As an initial matter, the government argues that the VA’s on-ramp determination was a

matter of contract administration and not the proper subject of a suit. ECF No. 644 at 161. The

court does not agree with that argument, as contract performance has not even begun, and awards

are still being determined. But the court need not agree with that argument, as the VA’s determi-

nation was neither arbitrary nor capricious.

Although some protesters argue that the VA was not allowed to consider fairness in its

decisions, the solicitation implicitly requires that the VA act fairly. Under 48 C.F.R. § 1.602-2,

contracting officers are responsible for ensuring “impartial, fair, and equitable treatment” of fed-

eral contractors. It was not irrational for the VA to consider fairness when deciding whether to

exercise the on-ramp provision. Protesters argue that even if the VA may consider fairness, fairness

7 did not require maintaining the expectations of successful offerors who would otherwise lose their

awards. E.g., ECF No. 581 at 28-29. TISTA notes that the VA removed another offeror—JTech—

from the award pool during the remand, so fairness did not require maintaining all awards that

offerors anticipated. Id. at 28. But JTech was in a very different posture. JTech lost points on

reevaluation, resulting in its drop in the rankings. By contrast, CGI and Deloitte did not lose any

points on reevaluation; they dropped in rank only because previously unsuccessful offerors sur-

passed them after reevaluation. AR404107-08. While reasonable minds might disagree as to what

fairness required in this case, the VA acted within the scope of its discretion to determine that it

was fair to keep Deloitte and CGI in the award pool.

In fact, as discussed briefly at oral argument, the VA’s approach to the on-ramp provision

is, in some ways, akin to setting a point cutoff. After the first award decision, the lowest-ranked

awardee—CGI, in thirtieth place—had 15,725.15 verified points. AR193553; AR198152. On re-

mand, when the number of offerors with at least 15,725.15 verified points did not change dramat-

ically, the VA effectively determined that it was fair to maintain awards to all offerors with at least

15,725.15 verified points. That did not reduce the status of any offeror and only served as a benefit,

to two offerors.

Some protesters also argue that once the VA decided to use the on-ramp provision, it was

required to use the provision to add SDVOSBs rather than non-SDVOSB offerors. See ECF No.

584-1 at 18; ECF No. 668 at 12. In support, the protesters invoke the so-called “rule of two.” ECF

No. 668 at 11. Under the rule of two, if a federal contracting officer “has a reasonable expectation

that two or more [SDVOSBs] will submit offers and that the award can be made at a fair and

reasonable price,” the officer “shall award contracts on the basis of competition restricted to

[SDVOSBs].” 38 U.S.C. § 8127(d)(1). The protesters argue that the use of the on-ramp provision

8 established a contract; there were two or more unsuccessful SDVOSB offerors interested; so any

on-ramped offerors should have been only SDVOSBs. ECF No. 668 at 11-12.

Contracting officers are not always required to apply the rule of two. For example, one

provision of the Federal Acquisition Regulation (FAR), 48 C.F.R. § 19.503(a), permits contracting

officers conducting multiple-award procurements to instead reserve one or more contract awards

for small business concerns. For this solicitation, the VA chose to reserve 15 awards for

SDVOSBs, explaining that a full set-aside was not feasible. AR1939. The VA explained that de-

cision in the solicitation. Id. To the extent that protesters believe the rule of two should have ap-

plied to this solicitation, they are making a challenge to the terms of the solicitation that is una-

vailable post-award. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir.

2007).

Protesters concede that the rule of two does not apply to the overall solicitation, called

Transformation Twenty-One Total Technology Next Generation Two (T4NG2). See ECF No. 584-

1 at 17-18; ECF No. 668 at 11-15. Instead, protesters characterize the VA’s use of the on-ramp

provision as a new contract award. ECF No. 668 at 11. But that characterization contradicts the

language of the solicitation, which explains that the on-ramp may be used only to add contractors

for work within the scope and ceiling of the T4NG2 contract. AR1862 (stating that agreements

with on-ramped contractors “shall include the same terms and condition of this Contract,” may be

granted by “revisiting the original pool of T4NG2 Offerors,” and will “in no way increase[] the

ceiling established for the T4NG2 program”). Adding contractors to conduct work within the scope

of the existing solicitation is not a new contract action. See FAR, 48 C.F.R. § 5.001 (New “contract

action[s]” do not include “actions that are within the scope and under the terms of the existing

9 contract.”). Awards made via the on-ramp provision are awards under the existing T4NG2 contract

and therefore are not governed by the rule of two.

Finally, some protesters argue that the solicitation requires that the VA make no more than

thirty awards. ECF No. 589-1 at 34 (Pinnacle); ECF No. 668 at 9 (reply of Innovenue, Systematic,

and Veteran First). But the solicitation states that the on-ramp provision may be used to “add ad-

ditional prime Contractors,” implying that it could be used for additional contractors beyond the

envisioned thirty. AR1862. This court has already noted that use of the on-ramp under this solici-

tation is not limited to replacing removed contractors. Technatomy, 173 Fed. Cl. at 498. The VA’s

use of the on-ramp to maintain two awards beyond the envisioned thirty on remand falls squarely

within the discretion the solicitation provides.

Even if the VA had not acted rationally in exercising the on-ramp provision, as will be

evident in several ways throughout this case—though not in every place the government raises

it—the protesters cannot show prejudice. Without a showing of prejudice, no bid protest can suc-

ceed. Bannum, 404 F.3d at 1351. With the on-ramp, no protester has demonstrated that it was

harmed by the VA’s decision to add two more awardees to the pool. None of the protesters lost

points due to the VA’s decision to on-ramp Deloitte and CGI, nor did any of the protesters drop in

rank due to that decision. No protester has shown that the VA’s use of the on-ramp provision for

Deloitte and CGI in any way reduced its own chance of receiving an award.

B. The VA rationally permitted clarifications in some circumstances and rationally chose not to engage in discussions

Ten protesters challenge the VA’s use of clarifications in the procurement process. See

ECF No. 570-1 at 7-17, 25-32 (Clearview); ECF No. 587 at 32 (Freedom Tech); ECF No. 584-1

at 14-16 (Innovenue, Systematic, Veteran First); ECF No. 594-1 at 37-38 (King Street); ECF No.

589-1 at 21-30 (Pinnacle); ECF No. 569 at 19-24 (ThunderYard); ECF No. 581 at 23-25 (TISTA);

10 ECF No. 595 at 43-45 (Vector). The FAR defines “clarifications” as “limited exchanges, between

the Government and offerors, that may occur when award without discussions is contemplated.”

48 C.F.R. § 15.306. The government may choose to request clarifications from some awardees

without requesting clarifications from all. And, absent a requirement in the solicitation, the gov-

ernment is not required to request clarifications. See Safeguard Base Operations, LLC v. United

States, 989 F.3d 1326, 1348 (Fed. Cir. 2021); GovWave, LLC v. United States, 175 Fed. Cl. 564,

642 (2025).

1. The VA was not obligated to request clarifications from any of- feror here

Pinnacle argues that the VA “abused its discretion in failing to ask Pinnacle for clarifica-

tion” concerning its relevant experience project (REP) 4 before reducing Pinnacle’s points. ECF

No. 589-1 at 22. To receive points for a REP, each offeror choosing a certain substantiation method

was required to submit “excerpts of Contract, Task Order, and/or Award documentation that sub-

stantiate the information” provided. E.g., AR91520. The VA required those documents so it could

verify that, for each REP, the offeror had justified the claimed points.

Pinnacle did not provide the required documents but argues that it could have provided

them, or could have pointed to other parts of its proposal, in a clarification. The VA appropriately

decided that the substantiating-document requirement was material, serving a substantive purpose.

The VA needed those substantiating documents to be able to efficiently evaluate proposals. The

VA reviewed at least 780 REPs for the T4NG2 procurement. AR400002. The VA did not have to

request additional information from every offeror who failed to submit the required documents for

any REP. GovWave, 175 Fed. Cl. at 623 (finding requirements material when they were in place

“to ensure that offerors submitted complete proposals, including attention to detail[,] … to demon-

11 strate the [offerors’] ability to carefully meet government requirements”). The VA therefore rea-

sonably considered the requirement for substantiating documents to be a material requirement of

the solicitation. See ManTech, 141 Fed. Cl. 493, 508 (2019) (A solicitation “provision is consid-

ered to have a substantive purpose when it is important to the government’s evaluation.”).

Regardless, required documents are generally material elements of a solicitation. See gen-

erally Superior Optical Labs, Inc. v. United States, 173 Fed. Cl. 243, 255-56 (2024) (finding a

failure to include “exact material required by the statute, its implementing regulation, or the solic-

itation,” including a failure to include a required form, to be material).

Further, as the government notes (ECF No. 644 at 17-18), allowing a party to provide doc-

uments, like previously undisclosed contracts, could be considered a discussion rather than a clar-

ification, opening the VA up to potentially having to accept revised proposals from all offerors.

The VA therefore rationally decided that Pinnacle’s failure to provide substantiating doc-

uments was a material deficiency. “The onus is not on the government to find ways to clarify or

correct material errors in submitted proposals.” Gemini Technology Services LLC v. United States,

177 Fed. Cl. 227, 235 (2025).

By contrast, the VA did seek other clarifications from certain other offerors: It requested

binary yes-or-no answers that did not require the VA to review additional documents or substantive

responses. For example, section L.12.10 of the solicitation permits an offeror to claim points for

its accounting system if the offeror “self-certif[ies] that there ha[ve] been no material changes to

the accounting system since the last audit of its accounting system.” AR1932. The VA later rec-

ognized that the solicitation was ambiguous as to whether it required an explicit self-certification;

some offerors understood that a representation that the information was accurate would suffice

under the solicitation’s terms. So the VA requested clarifications, asking each offeror that had

12 claimed points under section L.12.10 to explicitly certify that there had been no material changes

to its cost accounting system since that system was last audited. AR400005-06. Offerors did not

submit narratives or documentation in connection with those self-certifications. Similarly, the VA

requested a clarification from one offeror, Clear Vantage, asking it to “respond simply that it cer-

tifies or cannot certify that its [industry] certifications are current.” AR400006 (referring to Clear

Vantage as CVPSII). The VA did not invite Clear Vantage to submit new documents or narratives

concerning its industry certifications.

In the one circumstance where an offeror—SAIC—provided a further narrative in response

to the VA’s request for clarification, the VA explicitly disregarded the narrative and considered

only the binary yes-or-no answer. AR400003-04. That narrative response is discussed below. See

part II.B.2.

Pinnacle did not face disparate treatment when the VA prohibited it from providing new

documents as a clarification, just as the VA was not obligated to request a clarification; the VA

did not permit offerors to provide post-submission substantiating documents and only allowed

offerors to provide binary yes-or-no clarifications. That line drawing was reasonable.

Pinnacle alternatively argues that it should have received points for its REP 4 because,

although the VA noted that it was missing corroborating information in the form of substantiating

documents, that corroborating information could be found in other parts of Pinnacle’s proposal.

ECF No. 589-1 at 23. But, just as the VA had no obligation to request additional unsubmitted

documents, the VA had no obligation to scour the rest of Pinnacle’s proposal for information cor-

roborating Pinnacle’s REP 4. See Gemini, 177 Fed. Cl. at 235 (The “onus is not on the government

to find ways to clarify or correct material errors in submitted proposals.”). The solicitation stated

13 that an offeror “must highlight, or otherwise identify, the specific written passages” in its substan-

tiating documents that supported the claimed points. AR1920. As with other requirements in the

solicitation, the highlighting requirement was meant to aid the VA in reviewing what turned out

to be 78 proposals containing a total of 780 REPs. AR400002. While failure to highlight a relevant

excerpt was not necessarily a material error, the VA was not responsible for digging through an

offeror’s proposal to find corroborating information that the offeror failed to highlight. Gemini,

177 Fed. Cl. at 235. Instead, it was the offeror’s responsibility to submit a well-written, well-

organized proposal to facilitate meaningful review. Id.; see GovWave, 175 Fed. Cl. at 623. The

VA’s evaluation of Pinnacle’s REP 4 was not arbitrary or capricious.

In a similar vein, Vector argues that the VA should have engaged in clarifications or dis-

cussions to resolve errors in Vector’s proposal. ECF No. 595 at 34. Vector submitted an incorrect

version of its self-scoring worksheet. Vector explains that it accidentally submitted an older ver-

sion of the worksheet, which lacked a required section, rather than the latest version the VA pro-

vided. ECF No. 595 at 32.

The solicitation states that any offeror found to have manipulated the self-scoring work-

sheet will “be immediately excluded from consideration and no longer eligible for award.”

AR1910. The VA determined that, because of the blanket prohibition on manipulating the work-

sheet, Vector committed a material error by submitting the wrong version of the worksheet.

AR192105. Because the error was material, according to the VA, it could not be corrected through

clarifications. See 48 C.F.R. § 15.306.

The VA’s determination was not arbitrary or capricious. Vector asserts, and no one dis-

putes, that it did not intentionally use the wrong form for its self-scoring worksheet. But the re-

14 quirement of not having manipulated the worksheet does not depend on whether an offeror modi-

fied it intentionally. There is no dispute that Vector submitted an incorrect self-scoring worksheet.

See, e.g., ECF No. 595 at 14-15, 32; ECF No. 644 at 236. The form Vector submitted lacked the

standard scoring section expressly required by the solicitation. AR1923; ECF No. 595 at 33. The

contracting officer reviewed Vector’s form and determined that Vector had manipulated the self-

scoring worksheet. AR192105. It was not irrational for the contracting officer, evaluating a work-

sheet that omitted required sections, to conclude that Vector had manipulated it. The court will not

disturb the contracting officer’s rational inference. See Campbell v. Merit Systems Protection

Board, 27 F.3d 1560, 1564 (Fed. Cir. 1994) (A court reviewing a challenge to an agency’s conclu-

sions of fact will generally “defer as long as the record contains evidence from which one reason-

ably could draw the challenged inference.”).

Vector suggests that the VA should have opened discussions to allow Vector to fix its error.

ECF No. 595 at 36-38. While the VA reserved the right to conduct discussions, it did not obligate

itself to conduct discussions. AR1939 (“The Government intends to award contracts without dis-

cussions.”). The VA acted rationally in rejecting Vector’s incorrect self-scoring worksheet and in

declining to hold discussions with Vector to allow it to fix its proposal. See Gemini, 177 Fed. Cl.

at 235; DynCorp International LLC v. United States, 76 Fed. Cl. 528, 539 (2007) (“[W]hen offe-

rors are on notice that an award may be made without discussions, the government is not required,

as a general rule, to hold discussions before award.”).6

6 Vector submitted an opening brief that was 46 pages long (ECF No. 595), six pages over the limit (Rules of the Court of Federal Claims, Rule 5.4(b)(1)). Although I read the entire brief and will not strike any part of it at this point, that was just one brief, out nearly two thousand pages of briefs addressed in this opinion. Parties are generally advised to remain within the page limits, which exist for a good reason and are obligatory under the court’s rules.

15 Freedom Tech also argues that the VA engaged in disparate treatment by seeking clarifi-

cations from some offerors concerning their past marginal performance ratings but not seeking

clarifications from Freedom Tech. ECF No. 587 at 32. Disparate treatment can arise when two like

proposals are treated differently, such as when two proposals are “substantively indistinguishable”

or when an agency “inconsistently applie[s] objective solicitation requirements.” Office Design

Group v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020).

The VA was unable to access approximately 16 percent of the 780 evaluated relevant ex-

perience projects in the Contractor Performance Assessment Reporting System (CPARS).

AR400002. For any CPARS record the VA could not access, the VA asked the offeror to either

“certify” or “not certify” whether the past performance record would show entirely satisfactory or

better performance. Id.

Unlike those offerors, for Freedom Tech’s REPs, the VA was able to access CPARS. The

CPARS record showed less-than-satisfactory ratings for Freedom Tech’s REPs 6 and 10. ECF No.

587 at 29-30 (acknowledging marginal ratings). A narrative explanation of Freedom Tech’s less-

than-satisfactory ratings would qualify as a discussion rather than a clarification. Centerra Group,

LLC v. United States, 153 Fed. Cl. 407, 418 (2018) (holding that an agency communication was a

discussion where the revision “afforded [the awardee] an opportunity to explain how its proposal

would meet proposal requirements”). And Freedom Tech had the opportunity to provide that nar-

rative to the VA in the first instance (AR1944) and did not provide it (AR400168). Both because

Freedom Tech’s proposed REPs contained marginal ratings and because the VA sought clarifica-

tions only where it was unable to access CPARS, Freedom Tech has not shown that its proposal

was “substantively indistinguishable” from those of the other offerors or that the agency “incon-

sistently applied objective solicitation requirements.” Office Design, 951 F.3d at 1372.

16 2. The VA did not hold discussions

Eight protesters argue that the VA engaged in unequal discussions, holding discussions

with some parties and not others. See ECF No. 570-1 at 7-8, 25-29 (Clearview); ECF No. 589-1 at

28-30 (Pinnacle); ECF No. 584-1 at 14 (Innovenue, Systematic, Veteran First); ECF No. 594 at 38

(King Street); ECF No. 581 at 23-25 (TISTA); ECF No. 569 at 20-21 (ThunderYard). Those pro-

testers argue that communications between the VA and certain other offerors constituted discus-

sions.

Discussions “between the Government and offerors … are undertaken with the intent of

allowing the offeror to revise its proposal.” 48 C.F.R. § 15.306(d). While the FAR gives a con-

tracting officer broad discretion to resolve minor errors through clarifications (see 48 C.F.R.

§ 15.306(a)(2)), if the contracting officer engages in discussions with one offeror, he must also

hold discussions with the other offerors (48 C.F.R. § 15.306(e)). The court will generally defer to

an agency’s categorization of a communication as a clarification rather than a discussion. See In-

formation Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1323 (Fed. Cir. 2003).

Clearview and Pinnacle argue that the VA allowed offerors to update industry certifications

through discussions. ECF No. 570 at 25-29 (Clearview); ECF No. 589-1 at 28-30 (Pinnacle). The

government responds that the VA did not conduct discussions but rather “allowed offerors to clar-

ify minor discrepancies in proposals by certifying that information already in substantiating docu-

mentation was still current.” ECF No. 644 at 22.

The VA characterized its request for more information as a clarification “in [an] instance[]

where it was unclear if an Offeror’s industry certification was current.” AR400005-06. That deter-

mination was not arbitrary or capricious and comports with the agency’s view of what is appropri-

ately deemed a clarification, addressed above (part II.B.1). In requesting those clarifications, the

VA did not allow the offerors to revise their proposals. See 48 C.F.R. § 15.306(d). Instead, the VA

17 asked a binary yes-or-no question and got a yes-or-no answer. The Federal Circuit has previously

held that more extensive communications could constitute clarifications, rather than discussions.

In Information Technology, 316 F.3d at 1321, the Air Force asked an offeror to provide “additional

relevant past performance information, to further describe the lead role” for the offeror’s subcon-

tractors. Here, the VA’s request for a less extensive yes-or-no answer on whether an offeror’s

certification was current was reasonably characterized not as a discussion but as a clarification.

Protesters also argue that the VA engaged in unequal discussions when it allowed CGI and

A2E each to self-certify “that there have been no material changes to [its] accounting system since

the last audit of [its] accounting system.” ECF No. 570-1 at 27 (citing AR5132; AR10806). As

already discussed briefly (part II.B.1), the VA explained that that the solicitation contained an

ambiguity with respect to accounting systems: The solicitation did not clarify whether an offeror

implicitly self-certified by the fact of claiming the relevant points. AR400005. The VA determined

that confusion caused by that ambiguity led to potential discrepancies in its treatment of CGI and

A2E’s proposals; the VA addressed those discrepancies through clarifications. Id. The VA’s de-

termination was rational. Neither CGI nor A2E modified its proposal by certifying that there had

been no material changes to its accounting system since its last audit.

No protester has argued that the VA allowed only some offerors to certify the currentness

of their accounting systems through clarifications. And the VA recognized on remand that it had

treated like offerors differently in the first instance. The change on remand was to treat like offerors

alike. Thus, there is no disparate treatment, either.

Clearview argues that the VA held discussions with SAIC when the VA asked for confir-

mation that SAIC’s past performance was all satisfactory, and in response SAIC submitted a writ-

18 ten narrative concerning its past performance. ECF No. 570 at 7-8. During the original procure-

ment process, the VA was unable to access past performance records for several offerors, including

SAIC, due to technical issues with CPARS. AR400002. To fill in the gaps, the VA issued requests,

characterized as clarifications, requiring each offeror to either certify or not certify that its past

performance records would show only satisfactory or better performance. Id. SAIC responded that

it could not certify only satisfactory or better ratings for its REP 3 but provided a narrative response

explaining the negative past performance. AR34572-73. Clearview challenged that narrative in its

October 2024 motion for judgment on the administrative record. ECF No. 436-1 at 29. On remand,

then, the VA disregarded SAIC’s narrative response. ECF No. 644 at 26-28. Instead, the VA even-

tually gained access to SAIC’s CPARS record and independently verified the information in

SAIC’s proposal. AR400003; see also AR152511-13. The VA explained that it “was able to iden-

tify from the CPARS records that all ratings were Satisfactory or better from the time when SAIC

assumed contract performance,” as the less-than-satisfactory ratings arose while a subcontractor

was in charge of the poorly rated aspects of the project. AR400003.

Clearview argues that the VA “falsely” stated that it disregarded SAIC’s additional sup-

porting narrative. ECF No. 570-1 at 11. Clearview points to correspondence in which the contract-

ing officer compares SAIC’s narrative to the relevant CPARS record. Id. at 12-16 (citing

AR152657-59; AR34573). That correspondence was from September 2023. Id. As the government

points out (ECF No. 644 at 26-28), the correspondence was associated with the VA’s initial con-

tract award, not the award on remand. On remand, the VA stated that, “[i]n reconsidering this

matter, the Agency purposefully disregarded and did not consider the additional supporting narra-

tive provided in SAIC’s clarification response.” AR400004.

19 Clearview argues that “it is unreasonable to believe that the [contracting officer] and the

two members of the Past Performance Evaluation Team … simply wiped the previously held in-

formation from their memory.” ECF No. 667 at 7. Clearview adds that, on remand, the VA relied

on four statements from SAIC’s CPARS record that were also highlighted in SAIC’s later narra-

tive. ECF No. 667 at 6 (citing AR400003; AR152510-15). Clearview argues that, without the nar-

rative from SAIC, those four statements alone do not provide “a basis for finding positive past

performance.” ECF No. 667 at 7. But Clearview does not dispute that the statements come from

SAIC’s CPARS records or argue that it was improper for the VA to independently review those

records.

The VA’s exercise in ignoring the later narrative is common in an adjudicative process.

Courts are frequently asked to exclude documents or other evidence. See, e.g., ECF No. 675 (King

Street’s motion to exclude Neill declaration). If the court excludes a document, it then must address

the case as if it did not have access to that document. The court will not second-guess that the VA

relied only on the evidence it purported to rely on without clear contrary evidence. See Oak Grove

Techs. v. United States, 116 F.4th 1364, 1380 (Fed. Cir. 2024). Here, all the evidence the VA

purported to rely on was available to it absent SAIC’s narrative; there is no clear contrary evidence.

Because the VA did not rely on SAIC’s narrative responses during its remand evaluations,

it did not permit SAIC to revise its proposal. 48 C.F.R. § 15.306(d). The VA only allowed SAIC

to confirm, with a yes-or-no answer, whether it could certify that it had only positive past perfor-

mance ratings. Although the answer was no, because the government then had access to SAIC’s

20 CPARS reports, it could view the explanations within those reports to see SAIC’s justification for

all less-than-satisfactory ratings. Thus, the VA did not engage in discussions with SAIC.7

Clearview also argues that the VA engaged in disparate treatment in its evaluation of

SAIC’s past performance compared with Clearview’s past performance. ECF No. 570-1 at 25. As

a preliminary matter, this court gives particular deference to agency evaluations of past perfor-

mance. See, e.g., Glenn Defense Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 911

(Fed. Cir. 2013) (declining to “second-guess” an agency’s evaluation of past performance); Taahut

v. United States, 849 F. App’x 260, 266 (Fed. Cir. 2021) (“We have recognized that evaluation of

past performance is a matter within the discretion of the contracting agency and that the ‘agency’s

reasonable interpretation of the facts is entitled to considerable deference.’” (quoting Glenn De-

fense, 720 F.3d at 910)). To prevail on a challenge to the agency’s subjective evaluation, “a pro-

tester must show that the agency unreasonably downgraded its proposals for deficiencies that were

‘substantively indistinguishable’ [from] or nearly identical [to] those contained in other pro-

posals.” Office Design, 951 F.3d at 1372. That standard is more deferential than the “inconsistently

applied” standard the court applies when an agency disparately evaluates objective criteria such as

page limits. Id.

Clearview has not demonstrated that its CPARS narrative is “substantively indistinguisha-

ble” from SAIC’s CPARS narrative. See Office Design, 951 F.3d at 1372-73. The VA deducted

7 At the oral argument, Clearview argued that the VA could not have independently verified the information in SAIC’s proposal without reference to SAIC’s narrative because SAIC did not have CPARS reports for the 2014-to-2015 and 2019-to-2021 timeframes. But the VA did not need to rely on reports from 2014 to 2015 because those reports predate SAIC’s demonstrated improve- ment. And counsel for the government confirmed at the oral argument that CPARS contained re- ports for SAIC’s work through 2021. See generally AR34572 (SAIC certifying that CPARS con- tained satisfactory or greater ratings for all rated elements from September 2017 through June 2021).

21 points because Clearview had a less-than-satisfactory rating on its REP 4. AR400171. Clearview

argues that its CPARS narrative described remedial measures and positive past performance, like

SAIC’s CPARS narrative explaining SAIC’s remedial measures and improved performance. ECF

No. 570-1 at 24-25. But the two narratives are not substantively indistinguishable. SAIC’s CPARS

report noted that, after SAIC took over the contract, there was a “great change” and that SAIC’s

communication was “a model on how contracts should be operating.” AR400003; AR152512-13.

By contrast, Clearview’s CPARS report noted only that Clearview’s joint venture member had

taken steps to mitigate its marginal rating, but the report did not explain whether the mitigating

measures were successful. AR181167.

Although Clearview had the opportunity to provide a one-page narrative as part of its pro-

posal explaining any less-than-satisfactory performance record (AR1944), it elected not to

(AR181032). And, unlike SAIC’s CPARS record, Clearview’s CPARS record did not provide any

additional context to mitigate the marginal review. AR181032. Thus, Clearview’s marginal rating,

and its accompanying record, was not “substantively indistinguishable” or “nearly identical” to

SAIC’s marginal rating and accompanying record. Office Design, 951 F.3d at 1373. This court

will not disturb the VA’s discretionary determination that Clearview’s past performance, unlike

SAIC’s, could not be validated. Taahut, 849 F. App’x at 266; Glenn Defense, 720 F.3d at 911.

Seven protesters argue that the VA conducted discussions with VetsEZ by accepting a

small business subcontracting plan from VetsEZ after it had already submitted its proposal. ECF

No. 589-1 at 28 (Pinnacle); ECF No. 594-1 at 37-38 (King Street); ECF No. 569 at 20-21 (Thun-

derYard); ECF No. 584-1 at 15 (Innovenue, Systematic, Veteran First); ECF No. 581 at 23-25

(TISTA). VetsEZ originally represented in its proposal that it was an SDVOSB. AR40020. Other

offerors challenged VetsEZ’s size status in front of the Small Business Administration. AR41402.

22 Based on the Small Business Administration’s determination that VetsEZ was not a small business

for the purpose of this solicitation, the VA requested that VetsEZ submit a small business subcon-

tracting plan. Id. VetsEZ had not submitted a small business subcontracting plan with its initial

proposal because the solicitation did not require an SDVOSB (itself a small business) to submit

such a plan. VetsEZ responded to the VA’s request by submitting a small business subcontracting

plan. The protesters argue that the plan constitutes a discussion with VetsEZ.

But the submission and acceptance of a small business subcontracting plan does not con-

stitute a discussion. Consolidated Engineering Services, Inc. v. United States, 64 Fed. Cl. 617, 627

(2005); DynCorp, 76 Fed. Cl. at 546. VetsEZ was reclassified as a large business and, like other

large businesses bidding on this solicitation, was required to submit a subcontracting plan only

after it was an apparently successful offeror. AR1938 (A “large business shall submit a small busi-

ness subcontracting plan in accordance with FAR 52.219-9.”); see also 48 C.F.R. § 52.219-9(c)(1)

(requiring submission of a subcontracting plan only upon the request of a contracting officer); ECF

No. 668 at 9 (Innovenue, Systematic, and Veteran First acknowledging that “[a]llowing an appar-

ent awardee to submit a subcontracting plan after the apparent award, and the negotiation of an

already-submitted plan, are both allowed under the FAR”). Thus, the VA rationally accepted a

small business subcontracting plan from VetsEZ without its constituting a discussion and therefore

without opening discussions to all offerors.

Protesters argue that, unlike subcontracting plans discussed in other cases, VetsEZ received

points based on its plan. See, e.g., ECF No. 569 at 21; ECF No. 581 at 24; ECF No. 594-1 at 38.

As the VA noted on remand, and as discussed below (part II.E), offerors received points based on

their subcontractor participation commitments; each offeror’s commitment could encompass sub-

contractors not mentioned in the offeror’s small business subcontracting plan. AR400278. VetsEZ

23 did receive points for its subcontractor participation commitment. See, e.g., AR161972. But it did

not receive points for its subcontracting plan, which the VA requested only after the fact. AR1766

(self-scoring worksheet indicating no points allowed for a subcontracting plan); AR41402 (VA

letter to VetsEZ requesting subcontracting plan). Thus, VetsEZ did not receive points based on its

later-filed small business subcontracting plan, and that plan was not a revision to its proposal.

Four protesters complain that the VA did not address their arguments concerning VetsEZ

in its remand decision. ECF No. 581 at 23 (TISTA); ECF No. 584-1 at 15 (Innovenue, Systematic,

Veteran First). Similarly, Pinnacle takes issue with the VA’s not documenting every reevaluation

in its remand decision. ECF No. 669 at 21-23. But the VA explained that it did not prepare a second

evaluation concerning claims or arguments that “did not materially alter any of the Agency’s orig-

inal evaluation findings.” AR403561. Repeating its findings was not required. See DynCorp, 10

F.4th at 1314 (explaining that an agency is not required to provide an explicit explanation where

“the agency’s decisional path is reasonably discernible”).

In general, this court will defer to an agency’s reasonable view that a communication was

a clarification. DynCorp, 76 Fed. Cl. at 539-40. Here, the VA permissibly and reasonably viewed

its exchanges with offerors as clarifications.

Finally, although many protesters complain about whether VetsEZ was entitled to switch

from a small business to a large business, and some complain about other aspects of the VA’s

decision with respect to VetsEZ (addressed below), any error in the VA’s evaluation of VetsEZ is

harmless to any of the protesters. As already discussed, the VA permissibly added two awardees

using the on-ramp. If the VA had removed VetsEZ from the awardee pool, because of its switch

in size or for any other reason, under the VA’s fairness reasoning, the VA would have had to use

24 the on-ramp for only one awardee, CGI. But none of the protesters would have moved into the

award pool. Thus, any error would be harmless.

C. The VA rationally interpreted and applied the criteria under main functional area 4.3, requiring offerors to show experience with “ad- vanced software technologies”

Nine protesters challenge the VA’s interpretation of main functional area (MFA) 4.3 of the

solicitation, which addresses the type of technology experience the VA was seeking from a con-

tractor. See ECF No. 562 at 20-24 (Arrow); ECF No. 587 at 35-38 (Freedom Tech); ECF No. 592

at 18-27 (Mission Training); ECF No. 564 at 20-23 (Omni Cares); ECF No. 584-1 at 21-26 (Sys-

tematic); ECF No. 560 at 20-23 (T4NG2 JV); ECF No. 581 at 32-34 (TISTA); ECF No. 595 at 25

(Vector); ECF No. 557 at 20-23 (Vision Tech). The protesters generally argue that (1) the terms

of the solicitation were latently ambiguous, and (2) the VA imposed a new unstated requirement

by applying a new interpretation of MFA 4.3 on remand.

MFA 4.3 states,

The Contractors shall provide demonstrations and transition support for advanced software technologies. This functional area involves evaluating existing and emerging software technology products against the needs of current system development and support efforts, demonstrating specific technologies in the context of supported sys- tems, and transitioning effective technology solutions into use. Cur- rent technology areas of focus for VA include software architec- tures, databases, web-based applications, mobile applications, tele- health, enterprise solutions, wireless, and security. This mission is a critical aspect of VA’s ability to improve and advance its software engineering capability.

AR1816 (emphasis added).

On remand, the VA interpreted “advanced software technologies” as “any software tech-

nology that [(1) is] emerging or recently developed, and (2) would be a significant improvement

upon prior technology.” AR403675. The government primarily supports the VA’s interpretation

of the term “advanced software technologies” by pointing to a variety of dictionary definitions of

25 the word “advanced.” ECF No. 644 at 36-37. But here the better understanding comes from the

use of the term in the context of the solicitation, which provides enough information to put offerors

on notice of the VA’s intent in using the term. See Phillips v. AWH Corp., 415 F.3d 1303, 1321

(Fed. Cir. 2005) (en banc) (explaining, in the patent context, that relying on a dictionary definition

of a term often improperly “focuses the inquiry on the abstract meaning of words rather than on

the meaning of … terms within the context of” the document being interpreted).

The VA’s interpretation of “advanced software technologies” is consistent with the plain

text of MFA 4.3, which describes “evaluating existing and emerging software technology prod-

ucts,” “transitioning effective technology solutions into use,” and “improv[ing] and advanc[ing the

VA’s] software engineering capability.” AR1816. That surrounding language in the solicitation

indicates that the VA was looking for technologies that were not longstanding but instead were

new, either emerging or recently developed. Because the VA wanted to “transition[] effective tech-

nology solutions into use” and improve the VA’s software engineering capability (id.), it was clear

that the VA wanted to rely on technology that was at least new to the VA and could improve on

existing capabilities. That language also indicates that the VA was looking to improve its techno-

logical capabilities significantly, rather than incrementally, as it was looking to “improve and ad-

vance its software engineering capability.” Id. Because the plain language of the solicitation sur-

rounding the term “advanced software technologies” is clear, it is not necessary to consult diction-

aries. Banknote, 365 F.3d at 1353 (“We begin with the plain language of the document.”). And the

VA’s later interpretation of the term is consistent with the plain meaning of the term in context.

The VA’s interpretation of MFA 4.3, and “advanced software technologies” in particular,

is not a “new unstated requirement,” as some protesters argue, but rather is a reasonable restate-

ment of the solicitation’s requirements. The VA must have some latitude to reiterate the terms of

26 the solicitation using new formulations without being subject to accusations that it imposed a new

unstated requirement. See generally Banknote, 365 F.3d at 1357 (explaining that a contracting

officer’s analysis was “discretionary analysis,” not the application of unstated requirements); Kerr

Contractors, Inc. v. United States, 89 Fed. Cl. 312, 327-28 (2009) (accepting an agency’s evalua-

tion of relevant experience because the protester was on notice that its proposal would broadly be

reviewed for its technical merit). As discussed, the terms of MFA 4.3, read together, support the

VA’s restatement that “advanced software technologies” must be both “emerging or recently de-

veloped” and “a significant improvement upon prior technology” (AR403675). The arguments that

the terms of the solicitation were latently ambiguous or that the interpretation was an impermissi-

ble new requirement fail.

Several protesters argue that, by requiring “advanced software technologies” to be “a sig-

nificant improvement upon prior technology,” the VA read out “existing” technology, even though

the solicitation contemplates using “existing” technology. E.g., ECF No. 671 at 22 (Freedom

Tech); ECF No. 668 at 17-18 (Systematic); ECF No. 673 at 9 (Mission Training). But, as the

government argues (ECF No. 717 at 15-16), if evaluating any existing technology were sufficient,

that would read out the requirement that the technology be “advanced.” Nothing prohibited the

VA from requiring proposals to show that their technology was “advanced,” as MFA 4.3 explicitly

requires.

Freedom Tech argues that “emerging or recently developed” in the VA’s interpretation

conflicts with the words “[c]urrent technology” in the solicitation. ECF No. 587 at 36-37. But in

context it is clear that the word “current” is referring to the VA’s area of focus (“[c]urrent technol-

ogy areas of focus for VA include …”), not the types of technology the VA is seeking through its

solicitation.

27 The government argues that, to the extent that the term “advanced software technologies”

is unclear, any ambiguity was patent rather than latent. The government thus argues that a reason-

able definition was required and not supplied pre-award, so any challenge to the VA’s later refine-

ment should have been made pre-award. Because the term was clear, it was neither patently nor

latently ambiguous. Notably, although the government again relies on the numerous dictionary

definitions to support the idea that any ambiguity was patent, nearly any word will have multiple

possible definitions, and the existence of multiple definitions cannot necessarily correspond to a

patent ambiguity. See Phillips, 415 F.3d at 1321-22 (“Dictionaries, by their nature, provide an

expansive array of definitions. General dictionaries, in particular, strive to collect all uses of par-

ticular words, from the common to the obscure. By design, general dictionaries collect the defini-

tions of a term as used not only in a particular art field, but in many different settings.”).

Seven protesters also challenge the VA’s application of the requirements of MFA 4.3; in

other words, they challenge the VA’s evaluation of those protesters’ past experiences. See ECF

No. 592 at 27-33 (Mission Training); ECF No. 584-1 at 21-26 (Systematic); ECF No. 595 at 21-

25, 28-30 (Vector); ECF No. 562 at 21 (Arrow); ECF No. 564 at 21 (Omni Cares); ECF No. 557

at 21 (Vision Tech); ECF No. 560 at 25-26, 29 (T4NG2 JV). As a preliminary matter, the VA

rationally concluded that many of the protesters’ narratives were too vague or not relevant enough

to earn points under MFA 4.3 (ECF No. 644 at 43-64). In arguing that certain experiences satisfied

the MFA 4.3 criteria, protesters ask the court to second-guess the VA’s technical evaluation. The

court will rarely do that. E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (A

court will “not second guess” the “discretionary determinations of procurement officials” such as

“technical ratings.”); Glenn Defense, 720 F.3d at 911 (giving deference to an agency’s “determi-

nation of relevance”); PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 539 (2010) (“At the

28 outset, it is important to note that what does or does not constitute ‘relevant’ past performance falls

within [the agency’s] considered discretion.”). Because the VA evaluated the protesters’ past ex-

periences and rationally determined that those experiences were not sufficiently relevant to the

MFA 4.3 criteria, protesters do not meet their heavy burden.

The government describes at length the VA’s reasoning for finding that the protesters’ past

experiences were not relevant to MFA 4.3. See generally ECF No. 644 at 43-64. Mission Training,

for example, submitted REPs that the VA determined were more akin to operations and mainte-

nance than advanced software, and the VA determined that Mission Training’s vague narratives

concerning “software engineering” did not bridge the gap. AR403679; see also AR403774 (similar

for Systematic). The VA determined that Mission Training’s description of incremental software

development also did not satisfy MFA 4.3. AR403685. For T4NG2 JV, the VA determined that

one conclusory sentence, which did not cite the relevant contract, was insufficient to demonstrate

the claimed experience. AR403777. The VA evaluated Vision Tech’s REPs 1 and 3 and deter-

mined that the narratives described common software development tasks rather than advanced

software technologies. AR403859; AR403863. Omni Cares’ REPs 1 through 4 described tasks like

software releases and deploying and transitioning code builds, all of which the VA determined

were routine and insufficient to show experience with advanced technologies. AR403760-68.

The VA did not credit Arrow’s REPs under MFA 4.3 because they concerned operations-

and-maintenance tasks and market research rather than advanced technology. AR403589;

AR403594. Freedom Tech’s REP 10 described incremental enhancements and operations and

maintenance that did not satisfy the advanced technologies requirement. AR403621-26. The VA

evaluated Vector’s proposal and determined that it described compliance and other tasks that were

not relevant or were too vague to demonstrate experience with advanced technologies. AR403851-

29 55. And Systematic’s proposal described incremental development work and described the job of

a systems engineer, senior solutions architect, and subject matter expert, without demonstrating

that Systematic had done work involving advanced software technologies as contemplated by

MFA 4.3. AR403771-73.

For each of the protesters’ REPs, the VA exercised its technical judgment and rationally

determined, based on the record before it, that the protester had failed to adequately demonstrate

experience with “advanced software technology.” In those circumstances, “the Court may not sub-

stitute its judgment for that of the agency.” Benchmade Knife Co. v. United States, 79 Fed. Cl. 731,

740 (2007) (quotation marks omitted). The protesters have not shown that the VA was arbitrary or

capricious in its decision to invalidate their points under MFA 4.3.

Likewise, whether a task falls under “advanced software technologies” within MFA 4.3 or,

for example, operations and maintenance within other provisions of the solicitation, is part of the

VA’s technical expertise. Glenn Defense, 720 F.3d at 911 (giving deference to agency’s “determi-

nation of relevance”); Taahut, 849 F. App’x at 266; PlanetSpace, 92 Fed. Cl. at 539. For an inquiry

involving such technical judgment (see ECF No. 644 at 62-64 (Systematic)), this court “may not

substitute its judgment for that of the agency” (DynCorp, 10 F.4th at 1311).

Relatedly, Freedom Tech and Mission Training argue that they suffered disparate treatment

relative to other awardees with respect to MFA 4.3. ECF No. 587 at 37-39 (Freedom Tech); ECF

No. 592 at 31-39 (Mission Training). They disagree with the VA’s evaluation of other offerors.

For example, Freedom Tech argues that the VA improperly validated points for one of CGI’s

REPs, which concerned product development and testing but did not identify specific technologies.

ECF No. 587 at 37. Freedom Tech argues that the VA “went out of its way to validate CGI’s self-

score while applying a very different level of scrutiny to [Freedom Tech’s] proposal.” Id. Freedom

30 Tech makes similar arguments concerning REPs submitted by Digipathy, ECS, and Centuria, com-

plaining that those REPs were so insufficient that the VA could only have validated the claimed

points if it applied a different standard to those offerors than it applied to Freedom Tech. Id. at 37-

39. Likewise, Mission Training alleges disparate treatment because the VA discounted its REPs

as concerning routine tasks but validated points for A2E’s REP 8, despite both referring to “en-

hancements.” ECF No. 592 at 34-35. Mission Training also complains that the VA validated points

claimed by other offerors for a project concerning commercial off-the-shelf and government off-

the-shelf software but declined to validate points claimed by Mission Training for installing and

configuring commercial off-the-shelf and government off-the-shelf software. Id. at 35-36.

But neither protester demonstrates that any challenged narrative was “substantively indis-

tinguishable” from its own. Office Design, 951 F.3d at 1372-73. As previously noted, to demon-

strate disparate application of an agency’s subjective evaluation of an element like past perfor-

mance, a protester must show that its proposal was “substantively indistinguishable” from or

“nearly identical” to another proposal. Id. That is a higher bar than the “inconsistently applied”

standard for objective criteria such as page limits and due dates. Id. at 1372. It is not enough to say

that two projects use the same type of software or that two tasks both describe “enhancements” to

meet the substantively indistinguishable standard. The government points to numerous differences

between the protesters’ narratives and the challenged narratives. ECF No. 644 at 66-67, 69-71;

ECF No. 717 at 25-27. I will not restate them here. Those differences show that Freedom Tech

and Mission Training have not identified differing evaluation of substantively indistinguishable

proposals. They fail to establish disparate treatment or that the VA was arbitrary or capricious in

its decision to validate points for the awardees.

31 Mission Training also argues that the VA was required to take the customer’s signature at

face value as confirmation that the submitted information was accurate, including that the submit-

ted experience was relevant to MFA 4.3. ECF No. 592 at 28. Thus, according to Mission Training,

the VA could not review Mission Training’s underlying documents for accuracy. The court ex-

plained earlier that the VA “was required to review and evaluate each of the documents that the

offerors submitted.” Technatomy, 173 Fed. Cl. at 502. Much of the court’s reasoning in deciding

the motion to dismiss relied on the need for the VA to do more, not less, to verify representations

made by offerors. See, e.g., id. at 500 (noting that the solicitation required “a meaningful review”

of small business participation commitments). The VA was not required to take the customer’s

signature at face value without verifying the accuracy of information provided. Consistent with

that direction, on remand the VA explained that a signature “did not prevent [the VA] from using

[its] independent judgment,” and it weighed other supporting documents along with the signatures

when validating points. AR403707; see also AR403777 (noting that a signature alone was weak

evidence that T4NG2 JV’s REP 1 was relevant to MFA 4.3).

As part of its argument, Mission Training takes issue with the VA’s consideration of non-

highlighted information in the proposal of one awardee, Credence. ECF No. 592 at 36-37. Nothing

in the solicitation requires the VA to ignore non-highlighted information. Nor does the solicitation

obligate the VA to search for non-highlighted information. The VA did not act irrationally, or

contravene the solicitation, in reviewing non-highlighted information in Credence’s proposal with-

out scouring Mission Training’s non-highlighted information. That is particularly true here, where

the information that Mission Training challenges in Credence’s submission came from within the

same REP under review. AR403690-91. By contrast, Mission Training complains that the VA did

not look to its other REPs, which were not identified as relevant to MFA 4.3, for information to

32 support its REP 8. ECF No. 592 at 37; AR182516. Mission Training’s circumstances were not

comparable to Credence’s.

And, in general, the VA wrote its solicitation expecting many proposals, each containing

ten REPs. It received 173 eligible proposals (AR193529 [¶2]) and reviewed at least 780 REPs

(AR400002). The VA understood that it would have an easy time reviewing an organized proposal

and would have a harder time reviewing a disorganized proposal. It required that offerors highlight,

or otherwise identify, relevant information (AR1920) to lead the reader to the relevant information,

recognizing the limited time it had to spend reading each proposal. A well-organized proposal,

even without highlighting, would still lead a reader to the relevant information faster than a disor-

ganized proposal, and the VA acted within its discretion in giving Credence higher marks for

meeting all the solicitation’s requirements than Mission Training, which required searching “un-

related sections of the proposal in search of needed information” that Mission Training failed to

include in the identified REP. Vanguard Recovery Assistance v. United States, 101 Fed. Cl. 765,

786-87 (2011) (quoting Matter of Savantage Financial Services, Inc., B–299798, 2007 WL

4326742, at *6 (Comp. Gen. Aug. 22, 2007)). “[C]ontracting agencies … are not obligated to go

to unrelated sections of the proposal in search of needed information which the offeror has omitted

or failed adequately to present.” Savantage, 2007 WL 4326742, at *6.

D. The VA rationally interpreted the “first four REPs” rule and the sub- contractor-letter-of-commitment requirement

1. The VA rationally interpreted the first four REPs rule

Seven protesters make arguments regarding the VA’s interpretation and evaluation of the

first four REPs. See ECF No. 562 at 4-20 (Arrow); ECF No. 566 at 4-19 (Intellect); ECF No. 594-

1 at 24-33 (King Street); ECF No. 564 at 4-20 (Omni Cares); ECF No. 560 at 4-20 (T4NG2); ECF

No. 581 at 4-13 (TISTA); ECF No. 557 at 4-20 (Vision Tech). The solicitation states that “the first

33 four REP project submissions (REP-1 through REP-4) must reflect projects performed by the Of-

feror.” AR1918. “For Joint Ventures, projects performed by the Joint Venture, itself, or any of the

companies making up the Joint Venture, qualify as work performed by the offeror.” Id. If a mentor-

protégé joint venture did not itself have four relevant experiences, it was permitted to submit rel-

evant experiences from the joint venture members, as long as at least one REP was performed by

the mentor and one REP was performed by the protégé. AR1919. A joint venture SDVOSB offeror

was also required to submit relevant experience performed by the joint venture’s managing parties

for at least one of the first four REPs. Id. Protesters challenge the VA’s interpretation of those

requirements, which the government collectively refers to as the “first four REPs rule” (ECF No.

644 at 74-75). Protesters generally argue about what type of company can qualify as the offeror:

whether it has to be only the offeror itself or whether it can include subsidiaries of the offeror or

other companies related to the offeror. They also dispute whether the solicitation was latently am-

biguous.

Before the proposal deadline, the VA told offerors that it held the broader interpretation,

including subsidiaries of members of a joint venture within the category of companies that could

provide the first four REPs. AR1222 (Q&A 756: “confirm[ed] that … offerors can use REPs as-

sociated with an offeror’s divisions, subsidiaries, or affiliates … within the first four REPs”);

AR1219 (Q&A 706: “an offeror could potentially utilize … divisions, subsidiaries, or affiliates to

satisfy all 10 of the [solicitation’s] REP requirements”). On remand, the VA again made clear that

it was interpreting the solicitation broadly to allow a joint venture to claim relevant experience

from the joint venture itself, a member of the joint venture, or a member’s subsidiary. AR404096-

97. The parties first dispute whether the solicitation itself was unambiguous, patently ambiguous,

or latently ambiguous as to subsidiary experience. ECF No. 644 at 75-78; See ECF No. 562 at 4-

34 20 (Arrow); ECF No. 566 at 4-19 (Intellect); ECF No. 594-1 at 34-37 (King Street); ECF No. 564

at 4-20 (Omni Cares); ECF No. 560 at 4-20 (T4NG2 JV); ECF No. 557 at 4-20 (Vision Tech).

As the government points out (ECF No. 644 at 77-82), the solicitation contains an internal

inconsistency about the meaning of the term “offeror.” In section L.12.1, the solicitation allows

work performed by “companies that make up the Joint Venture” to be counted as work of the

“Offeror.” AR1916. Thus, section L.12.1 contemplates that a member of the joint venture is con-

sidered the “offeror.” On the other hand, section L.12.1.1 distinguishes the mentor and protégé of

a joint venture (“companies that make up the Joint Venture”) from the joint venture itself (“the

Offeror”). AR1919. Further, the solicitation does not clarify whether a subsidiary of a member is

considered one of the “companies that make up the Joint Venture,” because the solicitation does

not define “companies that make up the Joint Venture.” See AR1902 (describing labor rates for

labor “performed by the offeror” as including labor from “divisions, subsidiaries, or affiliates of

the offeror”); AR1918 (noting that projects performed by “any of the companies that make up the

Joint Venture will qualify as work performed by the Offeror”).

King Street and Pinnacle both point out that the VA did not identify the ambiguity until

after making initial awards. ECF No. 674 at 22 (King Street); ECF No. 669 at 19 (Pinnacle). They

argue that the ambiguity must therefore be latent. But an ambiguity need not be discovered pre-

evaluation for it to be considered a patent ambiguity. See NVT Technologies v. United States, 370

F.3d 1153 (Fed. Cir. 2004) (identifying a patent ambiguity in 2004, over two years after the award

was issued in 2001, despite this court’s having concluded that the solicitation had only one rea-

sonable reading); West Bay Builders, Inc. v. United States, 85 Fed. Cl. 1, 30 (2008) (finding a

patent ambiguity that the VA did not identify until more than a year after the contract was

awarded).

35 Whether an offeror could submit relevant experience from subsidiaries was the subject of

multiple questions answered by the VA in the pre-award process. The offerors asked questions

about which companies could be used in the first four REPs. In response to one question, the VA

“confirm[ed] … that offerors can use REPs associated with an offeror’s divisions, subsidiaries, or

affiliates … within the first four REPs.” AR1222 (Q&A 756). In response to another question, the

VA confirmed that “an offeror could potentially utilize … divisions, subsidiaries, or affiliates to

satisfy all 10 of the [solicitation’s] REP requirements.” AR1219 (Q&A 706). And the VA’s inter-

pretation was consistent with this court’s reasoning that, in general, “an agency is free to consider

the experience of an offeror’s parent, subsidiary, or affiliated companies unless there is an express

exclusion in the solicitation.” KGJJ Engineering Solutions, LLC v. United States, 161 Fed. Cl. 556,

565-66 (2022).

King Street points out (ECF No. 594-1 at 29) that the VA stated during the solicitation

process that “the mentor’s affiliated entities may not be used to satisfy the [mentor-protégé joint

venture’s] prime REP requirements.” AR1220 (Q&A 729). The VA made that statement in re-

sponse to a question asking whether a mentor’s affiliated entities could be used to satisfy the “joint

venture’s prime REP requirements.” AR1220. The VA explained on remand that its answer meant

that if a joint venture had REPs reflecting its experience as a joint venture, it could not replace

those REPs with REPs from the individual joint venture members (including their subsidiaries).

AR404095-96. That interpretation is consistent with the language of the solicitation, which re-

quired each joint venture to submit experience from the joint venture itself for the first four REPs,

if available, but allowed the joint venture to submit REPs from its individual members if it had no

experience as a joint venture. AR1919. Thus, the VA’s response to Q&A 729 does not address

whether an offeror could submit REPs from its wholly owned subsidiaries. The VA’s responses

36 showed offerors how the VA intended to decide whether a member’s subsidiary’s experience could

be used for the first four REPs. See, e.g., AR1220. The VA clarified that it intended to broadly

count a subsidiary as the “offeror.” AR404096-97.

In sum, the first four REPs rule, as elucidated by the VA in response to questions, was

unambiguous as to how the VA intended to treat subsidiaries. The rule was ambiguous in terms of

how the VA intended to treat members of a joint venture, but that ambiguity was patent, as it was

evident from the inconsistencies between sections L.12.1 and L.12.1.1 of the solicitation. See Stra-

tos Mobile Networks USA, LLC v. United States, 213 F.3d 1375, 1381 (Fed. Cir. 2000) (“A patent

ambiguity is present when the contract contains facially inconsistent provisions that would place

a reasonable contractor on notice and prompt the contractor to rectify the inconsistency by inquir-

ing of the appropriate parties.”). Thus, to the extent that protesters take issue with the VA’s broad

interpretation, those challenges could have and should have been brought pre-award. See Blue &

Gold, 492 F.3d at 1313.

Protesters also challenge the VA’s application of the first four REPs rule. King Street chal-

lenges the first four REPs of Clear Vantage, a joint venture (ECF No. 594-1 at 27-28). But Clear

Vantage relied on work performed by a subsidiary of the protégé of the joint venture (AR11646),

which, as explained above, fits within the VA’s reasonable definition of what type of affiliates can

provide the first four REPs.

King Street and TISTA argue that the VA should have disqualified Alpha, an SDVOSB

joint venture, for submitting its first four REPs based on contracts performed by Alpha’s members.

ECF No. 594-1 at 32-33 (King Street); ECF No. 581 at 30 (TISTA). King Street and TISTA claim

that Alpha had REPs of its own (as a joint venture) that it should have submitted instead of sub-

mitting its members’ contracts. Id. But, as the government points out (ECF No. 644 at 84), the VA

37 made clear in its Q&A responses that it would not independently confirm whether a joint venture

offeror had four eligible REPs it should have submitted. AR1191 (Q&A 312); AR 1222 (Q&A

757). The VA noted that it had no way “to validate whether or not the [joint venture] did not

include REPs that it could have.” AR1222. Thus, the VA reasonably did not investigate whether

Alpha had other REPs it should have submitted, and King Street and TISTA were on notice pre-

award that the VA would not investigate that. See Blue & Gold, 492 F.3d at 1313.8

TISTA also challenges the first four REPs that VCH used. TISTA argues that the VA “ir-

rationally allowed VCH to use Ekagra’s experience within its first four REPs.” ECF No. 581 at

12. The government represents the relationship between VCH and Ekagra in the following dia-

gram.

ECF No. 644 at 88.

In other words, VCH and Ekagra are both joint ventures, and they both claim a common

mentor member, Harmonia Holdings Group. Id. The government argues that because VCH’s men-

tor member, Harmonia, was also a member of Ekagra, VCH can receive credit for work done by

Ekagra. ECF No. 644 at 88-89. Unlike another offeror—Digipathy—who received credit for work

done by a joint venture with a common protégé member (AR404093), however, VCH did not

8 TISTA and King Street initially raised challenges concerning Digipathy’s REP 3. ECF No. 581 at 12-13 (TISTA); ECF No. 594-1 at 28 (King Street); ECF No. 674 at 19 (King Street). TISTA withdrew that challenge in its reply brief (ECF No. 666 at 3 n.2), and King Street withdrew that challenge in a later notice to the court (ECF No. 748 at 1).

38 provide a statement confirming that Harmonia performed all duties and responsibilities for the

submitted task order. Instead, the VA relied on Harmonia’s performing at least some of the tasks

under the REP or at least providing mentorship for the tasks. AR404094.

That does not fall within the bounds of the first four REPs rule. The VA was not within its

authority to decide that Harmonia’s performing some unknown share of the tasks of the joint ven-

ture Ekagra was sufficient for VCH to claim Ekagra’s experience as having been performed by its

member Harmonia. Unlike a small business protégé member (13 C.F.R. § 125.11), the mentor

member does not automatically get to take credit for the work of a joint venture. But even though

the VA’s decision to validate VCH’s REP 4 was erroneous, the error was harmless. TISTA does

not contend that, but for VCH’s receiving points for its REP 4, TISTA would have been an

awardee. Thus, TISTA has not established prejudicial error. See Asset Protection & Security Ser-

vices, L.P. v. United States, 5 F.4th 1361, 1365 (Fed Cir. 2021).

Further, as discussed above, the VA was within its authority to on-ramp two offerors, mak-

ing the awardee pool thirty-two instead of thirty. See generally part II.A. If VCH were to lose its

award because the VA improperly credited VCH’s REP 4, the result would be that the VA would

have an award pool of thirty-one (or thirty if there was an error with respect to VetsEZ, see part

II.B.2), and no other offeror would receive an award. See generally part II.B.2; ECF No. 644-1 at

2-3 [¶3]. Therefore no offeror can show prejudice based on the VA’s having improperly credited

VCH’s REP 4. Without prejudice, the VA’s award decision cannot be undone.

In sum, the protesters’ challenges to the VA’s interpretation and evaluation of the first four

REPs fail. Because the VA reasonably interpreted the first four REPs rule, and because the offerors

were on notice of the VA’s interpretation, the court will not address the protesters’ arguments

concerning the appropriate standard for assessing prejudice based on latent ambiguities.

39 2. The VA rationally interpreted the requirement for subcontrac- tor letters of commitment

Related to the first four REPs rule, the solicitation required an offeror to provide a subcon-

tractor letter of commitment in some circumstances when the offeror relied on the experience of

the subcontractor for a REP. AR1916. Eight protesters challenge the VA’s interpretation of the

subcontractor-letter-of-commitment requirement. See ECF No. 562 at 11-20 (Arrow); ECF No.

566 at 11-19 (Intellect); ECF No. 594-1 at 29-32 (King Street); ECF No. 564 at 11-20 (Omni

Cares); ECF No. 589-1 at 30-34 (Pinnacle); ECF No. 560 at 11-20 (T4NG2 JV); ECF No. 581 at

4-13 (TISTA); ECF No. 557 at 11-20 (Vision Tech).

Section L.10.6 of the solicitation requires a subcontractor letter of commitment for “each

proposed subcontractor, as well as any parent company, affiliate, division, or subsidiary identified

in the Offeror’s proposal that is being used under a REP.” AR1916 (emphasis added). Because the

italicized phrase does not explicitly reference a subcontractor, the VA later determined that the

solicitation was ambiguous on one issue. According to the VA, the solicitation could reasonably

mean that a letter of commitment was required for affiliates of the offeror but not for affiliates of

a subcontractor. See AR404090. Or it could mean that a letter of commitment was required either

way. Offerors asked questions during the solicitation process that underscored that ambiguity. See,

e.g., AR992 (Q&A 1: “recognizing that corporate affiliates and subsidiaries are distinct from ‘sub-

contractors’” as described in section L.10.6); AR1213 (Q&A 616: noting that the letter of com-

mitment requirement discussed subcontractors as distinct from “divisions, subsidiaries, or affili-

ates where common control is demonstrated via a Letter of Commitment”); AR1219 (Q&A 708:

asking the VA to confirm that a letter of commitment was necessary only for “(1) a proposed

subcontractor’s and/or (2) a parent, affiliate, division, or subsidiary’s work, as a Relevant Experi-

40 ence Project”). Those questions demonstrate that some offerors interpreted section L.10.6 as dis-

tinguishing subcontractors from an offeror’s affiliates, without addressing requirements for a sub-

contractor’s affiliates.

On remand, the VA acknowledged that the solicitation was ambiguous as to whether an

offeror was required to provide a subcontractor letter of commitment to show a relationship be-

tween a prime offeror and the company that performed a REP submitted by that offeror. AR404090

(“It is a reasonable interpretation … to consider that a [subcontractor letter of commitment] would

only be required for (1) a proposed subcontractor, or (2) an entity affiliated with the Offeror …

that performed a REP.”).

The VA also acknowledged that it had treated some offerors inconsistently with respect to

the letters: Some offerors were penalized for failing to provide letters while others in similar situ-

ations were not. AR404090. To remedy the situation, the VA took an expansive view, requiring

subcontractor letters of commitment in fewer possible situations. Under its more expansive view,

the VA did not require a letter of commitment from a subcontractor where the offeror had already

provided a letter of commitment from the subcontractor’s parent company. See AR404090 (dis-

cussing the issue in the context of Technatomy’s submission). The VA took corrective action,

restoring points for the offerors that had been penalized. AR400271.

For example, the VA originally deducted points from Technatomy’s self-score because it

provided a subcontractor letter of commitment from Maximus Federal Services (“Maximus Par-

ent”) but not from Maximus Federal Consulting (“Maximus Subsidiary”), the subsidiary of Max-

imus Parent that actually performed the tasks in Technatomy’s REPs 6 and 7. AR404089. On

remand, the VA applied its more expansive interpretation of section L.10.6, under which

Technatomy was not required to submit a letter of commitment for Maximus Subsidiary because

41 it had already submitted a letter of commitment from Maximus Parent. AR404090. Because Max-

imus Parent wholly owns Maximus Subsidiary, the VA determined that it was “reasonably clear

that [Maximus Subsidiary] is committed to supporting Technatomy as a subcontractor for T4NG2

task order requirements.” AR404091. Thus, the VA restored Technatomy’s points for its REPs 6

and 7 that the VA had previously deducted for failure to submit a subcontractor letter of commit-

ment. Id.

The government argues that the ambiguity in the solicitation was patent, meaning protest-

ers had to raise concerns pre-award. ECF No. 644 at 102-05. The protesters argue that the ambi-

guity was latent and required the VA to allow offerors to amend their proposals. See ECF No. 562

at 10 (Arrow); ECF No. 566 at 10 (Intellect); ECF No. 564 at 11 (Omni Cares); ECF No. 560 at

11 (T4NG2 JV); ECF No. 557 at 11 (Vision Tech).

The government is correct (ECF No. 644 at 102-105) that the ambiguity in the solicitation

was patent. As discussed above, the solicitation required a subcontractor letter of commitment for

“each proposed subcontractor, as well as any parent company, affiliate, division, or subsidiary

identified in the Offeror’s proposal that is being used under a REP.” AR1916. That language does

not make clear whether the solicitation requires a letter of commitment for “any parent company,

affiliate, division, or subsidiary” of a subcontractor, or if the solicitation requires such a letter only

for an affiliate of the offeror. See AR404090 (VA acknowledging the ambiguity). The ambiguity

is apparent from the language of the solicitation. The VA received questions concerning that lan-

guage, further underscoring that the ambiguity was clear from the language of the solicitation. Per

Aarsleff A/S v. United States, 829 F.3d 1303, 1310 (Fed. Cir. 2016) (“The presence of ambiguity

is demonstrated by the inquiries received during the solicitation process.”).

42 There were multiple possible reasonable interpretations of the solicitation. The VA chose

the broader interpretation based on the purpose of the requirement: demonstrating that the “affili-

ated companies and subcontractors are committed to supporting the prime Offerors for T4NG2

task order requirements.” AR400274. The VA determined that a party could demonstrate that re-

lationship with or without a letter, if there was sufficient evidence of a relationship between the

prime offeror and the company performing the REP. See AR400271-72; AR404091; see also

AR1219 (Q&A 705: when asked what documents an offeror should submit to show that its pro-

posed subcontractor was the parent of the company that performed a submitted REP, the VA re-

sponded, “it is incumbent upon the Offeror to submit the information / documentation necessary

to substantiate its position”).

For example, some offerors explained how a REP reflected the offeror’s work (AR16739

(Credence’s REP 5)), or the offeror’s proposed subcontractor’s work (AR40548-68 (VetsEZ’s

REP 7); AR40881-900 (VetsEZ’s REP 10); AR88237-38 (Peregrine’s REP 6)). It was permissible

for the VA, on remand, to acknowledge the patent ambiguity in the solicitation and consistently

apply the broader, but still reasonable, interpretation for when a subcontractor letter of commit-

ment was required. See Aero Spray, Inc. v. United States, 156 Fed. Cl. 548, 576 (2021) (“When a

Solicitation is patently ambiguous, the government remains free to select a reasonable interpreta-

tion, as it sees fit, during the evaluation and award segments of the procurement process.”).

Regardless, as the government explains (ECF No. 644 at 110-13), any error concerning the

VA’s evaluation of the subcontractor letters of commitment was harmless. None of the protesters

lost points for missing letters, and none of the offerors who submitted letters have shown that they

could have received more points had they not been required to submit letters. Instead, as the gov-

ernment points out (id. at 112; see also ECF No. 659 at 43 (Digipathy making a similar argument);

43 ECF No. 722 at 16 (ManTech making a similar argument)), the protesters imply that they success-

fully obtained letters of commitment from certain subcontractors but were unable to obtain letters

from wholly owned subsidiaries of those same subcontractors, putting them at a disadvantage

when they then declined to use those wholly owned subsidiaries for REPs. But the additional pa-

perwork burden of getting a signed letter from the subsidiary, when it had a signed letter from the

parent, is unlikely to have prevented an offeror from using a subcontractor it wanted to use. And

certainly no protester has presented any evidence that it was unable to obtain a letter of commit-

ment from a wholly owned subsidiary of a subcontractor. The protesters thus cannot establish that

they were prejudiced by any alleged error in the VA’s evaluation of the subcontractor letter of

commitment requirement. See Bannum, 404 F.3d at 1351.

E. The VA rationally evaluated small business participation commitments

Six protesters challenge the VA’s evaluation of offerors’ small business participation com-

mitments. See ECF No. 584-1 at 3-13 (Innovenue, Systematic, Veteran First); ECF No. 594-1 at

7-15 (King Street); ECF No. 569 at 24-35 (ThunderYard); ECF No. 581 at 13-16 (TISTA). The

protesters argue that, when the VA checked commitments that were under 75 percent only for

whether they were “implausible on their face” (AR400278), the VA abdicated its responsibility to

review those commitments. This court previously determined that the solicitation, in stating that it

would perform an acceptability review, “contemplated some amount of meaningful review of the

offerors’ proposed small business participation commitments.” Technatomy, 173 Fed. Cl. at 500.

The protesters argue that the VA, in checking only that reported small business participation com-

mitments were not “implausible on their face,” did not meet the requirements of the solicitation.

See, e.g., ECF No. 584-1 at 8-9.

The government responds that the VA’s evaluation for “facial implausibility” was con-

sistent with the solicitation and with this court’s direction that the VA conduct “some amount of

44 assessment.” ECF No. 644 at 113-14 (quoting Technatomy, 173 Fed. Cl. at 500). The government

argues that it performed a sufficient assessment for four reasons. First, according to the govern-

ment, awardees are free to hire subcontractors throughout the life of the contract who contribute

to the small business participation rate, but those subcontractors need not be named in an offeror’s

proposal, making an accurate, up-front assessment impossible. ECF No. 644 at 114. Second, the

government notes that the VA previously worked with a contractor under the predecessor T4NG

contract who achieved a 73.45 percent small business participation rate, indicating that it is plau-

sible that another offeror might meet or slightly exceed that rate. Id. Third, the government argues

that the VA did check for plausibility when it compared each offeror’s small business subcontract-

ing plan to its small business participation commitment to ensure that the subcontracting plan did

not render the commitment implausible on its face. Id. at 114-15. And fourth, the VA reviewed

other aspects of offerors’ proposals and did not find anything rendering the proposed commitments

implausible. Id. at 115. The VA also noted that it would be “difficult, if not impossible” to apply

a more searching review to commitments below 75 percent because offerors did not submit narra-

tives for their commitments below 75 percent and because the original solicitation did not warn

offerors that there might be a more searching review. Id.

For commitments under 75 percent, some protesters argue that the VA should have evalu-

ated proposals for realism; others do not propose a specific standard. See ECF No. 581 at 13-15;

ECF No. 569 at 25-26; ECF No. 584-1 at 7-13. The “reasonably realistic” standard appears in the

solicitation only as applied to proposed commitments at or above 75 percent. See AR1405. Nothing

in the solicitation requires the VA to apply a “reasonably realistic” or “realism” standard to pro-

posed commitments under 75 percent. The VA is correct that applying such a standard now would

impose a previously unstated criterion. See NARCORPS Specialties, LLC v. United States, 177

45 Fed. Cl. 535, 548 (2025) (determining that agencies may not analyze prices for realism without a

statement to that effect in the solicitation); Ceres Environmental Services, Inc. v. United States, 97

Fed. Cl. 277, 307 (2011) (“[I]t would have been error for the agency to have rejected low offerors

based upon an unstated cost-realism evaluation criterion.”).

The “facially implausible” standard, as opposed to a “realism” standard, is also consistent

with this court’s earlier decision in this case. This court noted that the solicitation “contemplated

some amount of meaningful review” but did not prescribe the level of scrutiny required.

Technatomy, 173 Fed. Cl. at 500. The VA’s “facially implausible” evaluation standard satisfies

the requirement for “some amount of meaningful review.”

ThunderYard and TISTA argue that some awardees’ small business participation commit-

ments are facially unrealistic based on the subcontractors named in their proposals. ECF No. 569

at 29-31 (ThunderYard); ECF No. 581 at 16 (TISTA). But the VA cannot directly compare an

offeror’s small business participation commitment to the subcontractors named in the offeror’s

proposal because the offeror might later hire other subcontractors not named in its proposal. See

ECF No. 644 at 119-20. Nothing in the solicitation limits an awardee to using only subcontractors

named in its proposal. See AR400278. And in fact the VA requested REPs and subcontractor letters

of commitment to determine each offeror’s past performance and competency for the T4NG2 pro-

ject, not to bind the offeror to a specific subcontracting plan. Thus, the VA could rationally deter-

mine that an offeror’s commitment percentage was facially plausible even if that percentage did

not align with the subcontractors identified in the offeror’s proposal.

The government is also correct that the VA’s past experience, when a contractor achieved

a 73.45 percent small business participation rate under T4NG, T4NG2’s predecessor contract, sup-

ports the VA’s determination that a commitment close to 75 percent is, in general, plausible. ECF

46 No. 644 at 118. The VA rationally relied on that experience in evaluating small business partici-

pation commitments. There is no need for this court to disturb the VA’s plausibility threshold,

especially where the VA then went on to evaluate the facial plausibility of each commitment below

75 percent. DynCorp, 10 F.4th at 1315 (explaining that review of bid protests is “highly deferen-

tial” and that the court “must sustain an agency action evincing rational reasoning and considera-

tion of relevant factors” (quotation marks omitted)).

As the VA noted, if an awardee fails to meet its commitment during the performance pe-

riod, the VA may withdraw the awardee’s contract for failure to make good-faith efforts to meet

its commitment. ECF No. 521-1 at 53 (“[S]uccessful Offerors who receive contract awards will

have to make good faith efforts to meet their [small business participation] commitments and re-

main subject to a potential termination for default or off-ramp … if they fail to make good faith

effort[s].”). That is what the off-ramp option is for. AR1862. Notably, if an awardee has made a

74 percent small business participation commitment, and it gets more than 26 percent of the way

into its performance of the contract without any small business participation, that awardee’s com-

mitment will already be impossible to meet, and the VA should be prepared to begin to impose

consequences on that awardee.

Protesters also argue that the VA should have cross-referenced other areas of each offeror’s

proposal when evaluating its small business participation commitment. For example, protesters

compare each offeror’s small business participation commitment with its small business subcon-

tracting plan, arguing that a discrepancy in those percentages renders the commitment facially

implausible. ECF No. 581 at 16 (TISTA protesting the proposals of Booz Allen and Cognosante);

ECF No. 594-1 at 9-11 (King Street protesting the proposals of Booz Allen, Cognosante, Credence,

Deloitte, and ECS); ECF No. 569 at 33-34 (ThunderYard protesting the proposals of Cognosante

47 and VetsEZ). The protesters argue that those discrepancies indicate that the awardees either are

unable to or do not intend to meet their small business participation commitments. ECF No. 581

at 15-16; ECF No. 569 at 34-35. The government responds that the solicitation does not require

matching statistics and that the challenged offerors may comply with both commitments by meet-

ing whichever one is higher. ECF No. 644 at 123.

The government has the better argument. An offeror can comply with both a commitment

to provide at least 17.5 percent of total subcontracted dollars to small businesses and at least 49

percent of total subcontracted dollars to small businesses by meeting the higher goal of 49 percent.

Compare AR13796 (Cognosante’s small business subcontracting plan) with AR13746

(Cognosante’s small business participation commitment).

And in at least some of the proposals that protesters challenge, the subcontracting plan and

small business commitment numbers are the same; the percentages differ only due to a difference

in the denominator. For example, Deloitte proposed a small business participation commitment of

65 percent (AR19479) and proposed that all (100 percent) of the subcontracted small businesses

would fall within four socioeconomic categories (AR19475). Those numbers differ only because

Deloitte calculated the 100 percent small business subcontracting plan value based on total sub-

contracted dollars, while it calculated the 65 percent small business participation commitment

based on total contract value. When both percentages are calculated using total contract value,

Deloitte’s small business subcontracting plan goals match the commitment percentage of 65 per-

cent. Thus, although the solicitation does not require matching statistics, some of the challenged

statistics differ only because they are calculated using a different denominator. See, e.g., AR18287

(Credence’s subcontracting plan); AR17972 (Credence’s commitment); AR26416 (GovCIO’s

subcontracting plan); AR26425 (GovCIO’s commitment); AR29866 (ManTech’s subcontracting

48 plan); AR29860 (ManTech’s commitment); AR34553 (SAIC’s subcontracting plan); AR34542

(SAIC’s commitment).

King Street also argues that each offeror must qualify for points under the veteran-owned

small business (VOSB) factor to earn points for related small business participation commitments.

ECF No. 594-1 at 13-15. King Street argues that any offeror who did not identify any SDVOSB

or VOSB subcontractors in its proposal, and thus did not receive points under the VOSB factor,

should not receive points for proposed commitment rates. Id. at 14-15.

Offerors could receive points under the VOSB factor for either being a VOSB, being an

SDVOSB, or proposing to subcontract with VOSBs or SDVOSBs. AR1904. To receive points for

proposing to subcontract with VOSBs or SDVOSBs, an offeror was required to identify the pro-

posed contractors, describe the proposed contracts, and provide each contract’s approximate dollar

value. Id. But, as noted above, an offeror can satisfy its small business participation commitment

using unidentified subcontractors that it hires in the future. It is therefore plausible that an awardee

could meet its commitment despite not originally naming any small business subcontractors in its

proposal and therefore not receiving points under the VOSB factor.

Four protesters also argue that the VA violated Veterans Affairs Acquisition Regulation

(VAAR) 852.215-70 by failing to consider that regulation when evaluating small business partic-

ipation commitments. ECF No. 594-1 at 13-15 (King Street); ECF No. 584-1 at 12-13 (Innovenue,

Systematic, Veteran First). VAAR 852.215-70, which was incorporated into the solicitation

(AR1904), requires non-veteran offerors seeking credit for using certified SDVOSBs or VOSBs

as subcontractors to provide the names of the proposed subcontractors and a “brief description of

the proposed subcontracts and the approximate dollar values of the proposed subcontracts.” VAAR

852.215-70(c). The protesters argue that the VA unreasonably validated points for awardees who

49 failed to provide descriptions or approximate dollar values associated with their small business

participation commitments. ECF No. 594-1 at 14. As the government points out (ECF No. 644 at

127), the VA validated the challenged points under each awardee’s small business participation

commitment, not the VOSB factor. VAAR 852.215-70(c) applies to the VOSB factor, which con-

cerns subcontractors identified in the original proposal, not the small business participation com-

mitment, which concerns the use of subcontractors throughout the life of the contract. See AR1945

(incorporating VAAR 852.215-70 into the SDVOSB and VOSB factors but not into the small

business participation commitment aspect of the solicitation). Thus, the VA was not required to

evaluate each offeror’s small business participation commitment using the criteria set forth in

VAAR 852.215-70(c).9

The solicitation does not require an offeror to comply with the VOSB factor to receive

points for its small business participation commitment. The government’s decision to not read in

such a requirement during its evaluation process was therefore not arbitrary or capricious.

F. The VA rationally analyzed the potential for collusion

TISTA argues that the VA “arbitrarily and capriciously evaluated potential collusion

among offerors and awardees.” ECF No. 581 at 18. The solicitation permits a single company to

join multiple teams, for example by being a member of multiple joint ventures. AR1910-11. The

solicitation notes, however, that “caution shall be taken” to ensure that overlapping ventures do

not “establish an arrangement that may lead to collusion.” Id. The solicitation provides examples

9 TISTA raises concerns that VetsEZ received points for having an SDVOSB on its team that it later dropped and also argues that VetEZ had likely planned, when it thought it qualified as a small business, to self-perform most of its small business participation commitment. ECF No. 581 at 23- 25; ECF No. 666 at 15-17. According to TISTA, once VetsEZ was considered a large business, its commitment became facially implausible. As noted above (part II.B.2), any error with respect to the VA’s incorrectly awarding points to VetsEZ would be harmless, as its dropping out of the awardee pool would not allow any other offeror to join the awardee pool.

50 of collusion: (1) an offeror, with the purpose of restricting competition, made an agreement with

another offeror regarding a proposal; (2) an offeror disclosed its proposed prices before the due

date; or (3) an offeror attempted to prevent another company from submitting a proposal. Id.

TISTA essentially argues that any arrangement in which one company participates in mul-

tiple joint ventures “may lead to collusion” unless the joint ventures have specific firewalls in

place. ECF No. 581 at 21-23. The government responds that any potential future collusion is a

“matter of contract administration that lies beyond this Court’s bid protest jurisdiction” and that

TISTA’s arguments are speculative. ECF No. 644 at 128. The government also argues that because

the solicitation expressly permits a single company to participate in multiple joint ventures, TISTA

waived its argument that such arrangements are “inherently collusive” by not protesting pre-award.

Id. at 130.

The solicitation states that joint venture arrangements should not “establish an arrangement

that may lead to collusion in proposals submitted in response to this solicitation or may lead to the

establishment of [a] collusive arrangement at the task order level.” AR1911. That language con-

templates that the VA will take precautionary measures to avoid potential collusion when evaluat-

ing proposals, not solely during contract administration. The government’s argument that potential

future collusion is only a “matter of contract administration” is therefore unpersuasive.

But the government has demonstrated that the VA considered the evidence and rationally

concluded that there was no evidence of collusion or future collusion from any offeror. As TISTA

acknowledges (ECF No. 581 at 20), the VA determined that TISTA’s allegations “did not result

in a concern [that] there was collusion as defined by the” solicitation. AR400016. In an extensive

51 analysis (AR400015-90; AR400092-157), the VA determined that the evidence—multiple in-

stances of a single company being a member of multiple joint ventures and certain commonalities

among proposals—did not support an inference of collusion. AR4000017; AR400022.

The solicitation expressly allowed one company to be a member of multiple joint ventures.

AR1911. The VA found “no evidence of collusive arrangements” and “no evidence of an arrange-

ment in which task order level competitions could be compromised due to the operating relation-

ship between each [joint venture] member should they happen to be competing, or considering

competing, for the same task order award.” AR400017.

Further, although the VA found commonalities among proposals on labor ceiling rates, the

VA weighed that evidence and determined that permitted relationships, such as between a mentor

and a protégé, could have led multiple offerors to develop their labor ceiling rate proposals in

similar ways without engaging in collusion on the rates themselves. AR400020-21.

The VA also sought and received sworn statements from 32 offerors stating that they had

not engaged in collusive activity. AR400018; AR400020; see also AR9303 (Canopy’s joint ven-

ture agreement prohibiting venturers that are bidding on a task order through the joint venture from

independently bidding on the task order or from discussing the task order with venturers who are

not bidding on the task order through the joint venture); AR400139-42 (SAIC’s response and

sworn statement confirming that it had not engaged in collusion and stating that similarities among

proposals were a function of permissible guidance in a mentor-protégé joint venture). The VA was

entitled to rely on the offerors’ certifications. See Allied Technology Group, Inc. v. United States,

649 F.3d 1320, 1330 (Fed. Cir. 2011). The VA took the “caution” required by the solicitation

(AR1911). TISTA has not shown that the VA’s collusion analysis lacked a rational basis. See Oak

52 Grove, 116 F.4th at 1380 (faulting this court for “substitut[ing] its own judgment as to what con-

stitutes an adequate investigation”). To the extent that TISTA argues that a single company’s being

part of multiple joint ventures is inherently collusive, it needed to have protested the terms of the

solicitation, which expressly allow that, pre-award. See Blue & Gold, 492 F.3d at 1313-14.

G. The VA rationally evaluated veteran employee percentages

TISTA also challenges the VA’s evaluation of veteran employee percentages. ECF No.

581 at 16-18. Veteran employee percentages are calculated by dividing the number of veteran

employees of a company by the total number of employees of the company. TISTA argues that,

although the VA checked the number of employees of each offeror—the denominator—against its

records in SAM.gov, the VA “irrationally made no effort to check the numerator in each offeror’s

veterans employment calculation (i.e., number of veteran employees).” Id. at 17-18. The govern-

ment responds that the VA “reviewed the information in the proposals and multiple databases to

validate the [veteran employee] percentages, which meets and exceeds the ‘low’ level of evalua-

tion contemplated by the solicitation.” ECF No. 644 at 133.

The VA verified the proposed veteran employee percentages to the extent that relevant data

was available. The VA rationally explained that it could not further investigate the numerators—

numbers of veteran employees—without using specific employee names and conducting an audit,

which would be impermissible under the terms of the solicitation. AR400301-02. The solicitation

did not require offerors to identify their veteran employees by name, nor did it authorize an audit

at the proposal evaluation stage. The VA therefore determined that requiring that information now

or conducting an audit would amount to using unstated evaluation criteria. Id.

As this court noted at the motion-to-dismiss stage, the solicitation conveyed that “the level

of evaluation that the VA intended to do was clearly low.” Technatomy, 173 Fed. Cl. at 501. The

VA conducted reasonable, non-arbitrary evaluations based on the available information. As the

53 VA satisfied the low level of evaluation required by the solicitation, the court will not quibble with

the details of that investigation. Oak Grove, 116 F.4th at 1380. If TISTA thought a more searching

review was required than was described in the solicitation, it needed to protest that pre-award. See

Blue & Gold, 492 F.3d at 1313-14.

H. The VA rationally evaluated whether offerors satisfied the joint-ven- ture-agreement requirement

Two protesters argue that the VA should have disqualified certain awardees for failing to

submit fully compliant joint venture agreements. See ECF No. 594-1 at 15-23 (King Street); ECF

No. 581 at 25-27 (TISTA). The government responds that the VA’s decision not to disqualify

awardees was rational and that, even if the decision were irrational, there is no prejudice to King

Street or TISTA. ECF No. 644 at 136-52.

In general, the solicitation requires a joint venture that includes a small business to provide

a copy of its joint venture agreement. AR1911. Section L.10.5(C)(2)(vi) requires the joint venture

agreement to include certain information. Id.; AR1912. The agreement must “itemize[] all major

equipment, facilities, and other resources to be furnished by each party.” AR1912. Section

L.10.5(C)(2)(vii) requires the joint venture agreement to list “the responsibilities of the parties

with regard to … source of labor, and contract performance.” AR1911; AR1913. If a contract is

“indefinite in nature,” subsections (vi) and (vii) require only a “general description” of the antici-

pated major equipment, facilities, resources, and responsibilities. AR1911-13.

An offeror who is awarded a contract under the T4NG2 solicitation joins the pool of po-

tential contractors eligible for task orders. An awardee does not know the scope of its future work

from the outset. Because the solicitation is “indefinite in nature,” each offeror could submit a “gen-

eral description” of anticipated major equipment, facilities, resources, and responsibilities rather

than specifying those details at the proposal stage. AR1912-13. When evaluating proposals, the

54 VA determined whether each offeror provided enough specifics to meet the “general description”

requirement.

The government provides rational bases for the VA’s evaluation of whether the challenged

proposals satisfied the “general description” requirement and other requirements for joint venture

agreements. See ECF No. 644 at 138-52; ECF No. 717 at 72-76; see also ECF No. 659 at 3-11

(Digipathy providing additional rational bases for the VA’s evaluation). The VA reasonably re-

viewed each proposal and exercised its own judgment in determining whether to disqualify it based

on the joint venture agreement requirement. The court will not disturb that reasonable assessment.

See DynCorp, 10 F.4th at 1316; DynCorp, 134 Fed. Cl. at 539 (“We do not reweigh the evidence,

but grant to the [contracting officer] wide deference unless plaintiff can demonstrate that the deci-

sion lacked a reasonable basis.”), aff’d 757 F. App’x 927 (Fed. Cir. 2018).

King Street also argues that the VA should not have accepted joint venture agreements that

did not name the T4NG2 contract or that included unsigned exhibits. ECF No. 594-1 at 19-23. As

the government points out (ECF No. 644 at 139), the solicitation does not require joint venture

agreements to explicitly name the T4NG2 contract.

Further, even if the solicitation required a joint venture agreement to be specifically de-

signed for the T4NG2 contract, the VA could reasonably determine that a joint venture agreement

related to T4NG2 without explicitly naming T4NG2. For example, Clear Vantage’s joint venture

agreement includes the T4NG2 contract number (36C10B230011) and is dated within six weeks

of the solicitation. AR10832-95. Optimal Link’s joint venture agreement is effective as of only

three weeks after the T4NG2 solicitation. AR30999. A2E’s joint venture agreement was amended

within weeks of the T4NG2 solicitation date. AR4654-60; AR912. And non-awardee Mission

Partners’ joint venture agreement refers to T4NG2 on every page. AR43568-83. So, even if the

55 solicitation required that joint venture agreements demonstrate that they relate to the T4NG2 con-

tract, the VA rationally determined that the challenged joint venture agreements did.10

King Street also argues that Clear Vantage’s and Optimal Link’s joint venture agreements

are deficient because certain exhibits lack signatures. ECF No. 594-1 at 20-21. But, as the govern-

ment notes, the solicitation does not require a signature on every page of the joint venture agree-

ment or on the exhibits. And here, as the government points out (ECF No. 644 at 144), there is no

indication that the venturers do not intend to be bound by the exhibits. Thus, King Street has not

demonstrated that the joint venture agreements do not comply with the solicitation or that the VA

acted irrationally or arbitrarily in accepting the challenged joint venture agreements.

One other point is worth noting. King Street argues that this court has already determined

that a compliant and complete joint venture agreement was mandatory. ECF No. 674 at 15 (citing

Technatomy, 173 Fed. Cl. at 506-07). But this court determined that the VA appropriately required

offerors to supply all the information the solicitation required (Technatomy, 173 Fed. Cl. at 506-

07); it did not determine the level of description required. For example, King Street argues that

Taurian did not name a responsible manager, and Tribility was disqualified for the same failure to

name a responsible manager. ECF No. 594-1 at 18; ECF No. 674 at 8. But, unlike Tribility, Taurian

named a responsible manager—a joint venture manager—throughout its proposal, and the VA

rationally deemed that sufficient. More broadly, the VA was reasonable in interpreting “general

description” as a broad term, and its determinations of what constituted a sufficient “general de-

scription” are entitled to deference. DynCorp, 10 F.4th at 1316; DynCorp, 134 Fed. Cl. at 539.

10 King Street originally challenged Digipathy’s joint venture agreement on the basis that it did not reference the T4NG2 contract. ECF No. 674 at 10. King Street later withdrew that challenge. ECF No. 748 at 1.

56 I. The VA rationally evaluated alleged misrepresentations

ThunderYard and TISTA both argue that the VA should have disqualified VetsEZ for al-

leged misrepresentations concerning its SDVOSB status. ECF No. 569 at 14-19 (ThunderYard);

ECF No. 581 at 27-28 (TISTA). TISTA also argues that the VA should have disqualified Zetta for

the same reason. ECF No. 581 at 27-28. To succeed, the protesters must demonstrate that (1) the

challenged awardee made a false statement; and (2) the agency relied on the false statement in

selecting the awardee’s proposal for the contract award. Blue & Gold Fleet, LP v. United States,

70 Fed. Cl. 487, 495 (2006), aff’d, 492 F.3d 1308, 1317 (Fed. Cir. 2007). The government argues

that the protesters have not met their burden. ECF No. 644 at 153.

VetsEZ originally represented that it was a small business. AR313897; AR314534-37. That

representation was based on the averages of its tax returns from 2017 to 2021. AR313897 n.5. The

correct period for consideration, based on regulations promulgated by the Small Business Admin-

istration, was 2018 to 2022 (13 C.F.R. § 121.104(a)(2)), even though VetsEZ had not yet filed its

tax return for 2022 (AR313897 n.5). The five-year average of VetsEZ’s gross receipts from 2018

to 2022 was too large for VetsEZ to qualify as a small business. See AR314536-37. After the Small

Business Administration determined that VetsEZ was not a small business, the VA recalculated

VetsEZ’s total score. While VetsEZ’s total score decreased when it was categorized as a large

business, the score remained high enough to rank among the top thirty offerors. AR204035-36;

AR404760; AR404087-88; AR404106. Thus, the VA did not rely on VetsEZ’s mistaken represen-

tation in selecting VetsEZ as an awardee. Instead, and unlike in Planning Research Corp. v. United

States, 971 F.2d 736, 741 (Fed. Cir. 1992), the VA understood VetsEZ’s size and nevertheless

determined that it was eligible for an award.

The protesters argue that the VA failed to consider the implications of the SDVOSB mis-

representations on other aspects of VetsEZ’s proposal. ECF No. 666 at 18; ECF No. 670 at 14.

57 They point to VetsEZ’s ability to meet its small business participation commitment. ECF No. 666

at 18; ECF No. 670 at 14. However, as noted above (part II.E), the VA has determined that each

awardee may meet its small business participation commitment throughout the course of the con-

tract, and the VA may withdraw an awardee’s contract if it does not make a good-faith effort on

that commitment. ECF No. 521-1 at 53. Thus, the VA did not arbitrarily and capriciously fail to

consider the impact of VetsEZ’s reevaluated size status on the rest of its proposal.

Ultimately, the VA acted within its discretion to decide not to disqualify VetsEZ based on

its mistaken representation. See NetCentrics Corp. v. United States, 145 Fed. Cl. 158, 169-70

(2019). Based on VetsEZ’s revised score, the VA determined that VetsEZ remained within the top

thirty offerors. That decision was not arbitrary or capricious.11

TISTA also argues that Zetta misrepresented its SDVOSB status. ECF No. 581 at 27-28.

Zetta is an SDVOSB joint venture formed of protégé member GigaTech, an SDVOSB, and mentor

member Sierra 7. AR404088; AR42493. In response to a size protest, the Small Business Admin-

istration determined that Sierra 7 is a large business for this procurement. AR204047. TISTA ar-

gues that Sierra 7’s size determination should have impacted Zetta’s SDVOSB status. ECF No.

581 at 27. But the relevant regulations provide that the SDVOSB status of a mentor-protégé joint

venture, such as Zetta, depends on the status of the protégé, not the mentor. 13 C.F.R.

§ 125.9(d)(1). TISTA has not challenged GigaTech’s size status. Nor has TISTA exhausted its

administrative remedies by making a size protest against Zetta. See 22nd Century Technologies,

11 The protesters also argue that the VA gave VetsEZ an opportunity to cure the defect, which amounted to unequal discussions with VetsEZ, so all offerors should have benefited from discus- sions. ECF No. 569 at 19-21; ECF No. 581 at 23-25. But it was not a discussion; VetsEZ simply lost the points it would have had as a small business. And regardless, as already discussed (part II.B.2), even if VetsEZ had been disqualified, no offeror would have become an awardee as a result. Thus, any error would have been harmless.

58 Inc. v. United States, 57 F.4th 993, 999 (Fed. Cir. 2023). Thus, TISTA’s arguments concerning

Zetta’s SDVOSB status fail.

J. The VA rationally evaluated other awardees

Two protesters challenge the VA’s evaluation of other specific awardees, arguing that they

received more points than they should have. Clearview challenges the VA’s evaluation of SAIC’s

past performance. ECF No. 570-1 at 21-25. And TISTA challenges the VA’s validation of points

for 17 REPs from six awardees, arguing that the awardees’ experience did not satisfy the solicita-

tion’s requirements. ECF No. 581 at 31-36. As the government addresses (ECF No. 644 at 168-

180), the VA rationally evaluated those awardees. As already discussed with respect to SAIC (part

II.B.2) and further addressed in detail in the government’s brief with respect to all those awardees,

the protesters are asking the court to second-guess the VA’s technical evaluations. The court will

not second-guess the VA’s technical evaluation of the challenged awardees. See E.W. Bliss, 77

F.3d at 449 (A “court will not second guess” the “discretionary determinations of procurement

officials,” including on “such matters as technical ratings.”).

Further, TISTA raises some of its arguments in a single sentence. ECF No. 581 at 31-36.

The court need not address arguments in detail when the protester addressed them only in a single

sentence. In re Killian, 45 F.4th 1373, 1386 (Fed. Cir. 2022) (“We find that Mr. Killian forfeited

any argument on appeal based on those fifty-five documents by failing to present anything more

than a conclusory, skeletal argument.”); Seventh Dimension, LLC v. United States, 161 Fed. Cl.

110, 129 (2022) (“Undeveloped or perfunctory arguments, such as those raised in a factual back-

ground section or in the footnotes of a party’s brief, may be deemed forfeited or waived.”). The

need to present arguments fully is especially important in a case like this one, in which the parties

are raising dozens of issues argued over thousands of pages of briefing.

59 And neither Clearview nor TISTA has demonstrated that it would have received an award

but for the VA’s alleged errors in evaluating those awardees. Thus, their protests fail. See Bannum,

404 F.3d at 1351.12

K. The VA rationally evaluated other protesters

In addition to the categories of challenges discussed above, eight protesters challenge the

VA’s evaluation of their own proposals. See ECF No. 570-1 at 32-34 (Clearview); ECF No. 587

at 28-39 (Freedom Tech); ECF No. 573 at 8-17 (GDIT); ECF No. 589-1 at 10-21 (Pinnacle); ECF

No. 584-1 at 21-26 (Systematic); ECF No. 560 at 24-31 (T4NG2 JV); ECF No. 595 at 40-43 (Vec-

tor); ECF No. 557 at 24-28 (Vision Tech). Except where noted below, the court agrees with the

government’s arguments (ECF No. 644 at 180-96, 211-45) that the VA’s evaluations of the pro-

posals at issue were not irrational, arbitrary, or capricious.13

1. Clearview

Clearview argues that “the VA should have reviewed and evaluated the narrative in Clear-

view’s CPARS” and given Clearview all claimed points without any deduction. ECF No. 570-1 at

32. As the government points out (ECF No. 644 at 180-84), and as already discussed above (part

II.B.2), the solicitation permitted offerors to submit a one-page narrative explaining “any rating

elements [that] are below satisfactory.” AR1934. The VA rationally reviewed Clearview’s pro-

posal and determined that Clearview failed to provide a narrative justifying its less-than-satisfac-

tory ratings. AR400171. It was rational for the VA to review Clearview’s CPARS narrative and

12 Although King Street originally challenged the VA’s evaluation of SiloDynamics’ proposal (ECF No. 594-1 at 23-24), King Street has since withdrawn that challenge (ECF No. 748 at 1). 13 As already noted (see supra n.2), Insignia withdrew its protest, so the court has not analyzed the government’s arguments with respect to Insignia (ECF No. 644 at 196-211).

60 determine that Clearview’s “attempt to mitigate” the situation, with no indication that the mitiga-

tion was successful, did not justify ignoring less-than-satisfactory ratings. See AR400239;

AR400171. For that reason, in addition to those already discussed, the VA reasonably deducted

points from Clearview’s self-score. Taahut, 849 F. App’x at 266 (“We have recognized that eval-

uation of past performance is a matter within the discretion of the contracting agency and that the

‘agency’s reasonable interpretation of the facts is entitled to considerable deference.’” (quoting

Glenn Defense, 720 F.3d at 910)); Glenn Defense, 720 F.3d at 911 (Evaluation of past performance

“is owed deference as it is among the minutiae of the procurement process, which [the court] will

not second guess.” (quotation marks omitted)).

2. Freedom Tech

As discussed above, the VA rationally interpreted and applied MFA 4.3 when evaluating

proposals. See part II.C. As the government points out (ECF 644 at 184 (citing AR404761)), the

deductions related to MFA 4.3 alone put Freedom Tech in ninety-first place. Thus, any other al-

leged errors in the VA’s evaluation of Freedom Tech are harmless, because absent those errors,

Freedom Tech still would not have a substantial chance of receiving an award. See Asset Protec-

tion, 5 F.4th at 1365. Further, the court agrees with the government’s arguments (ECF No. 644 at

184-91; ECF No. 717 at 87-93) that the VA did not engage in disparate treatment or otherwise

make irrational determinations in reducing Freedom Tech’s score.

Freedom Tech alleges in particular that the VA looked at narrative explanations in CPARS

to the benefit of other offerors but unreasonably denied Freedom Tech that benefit. ECF No. 587

at 28-35. The VA deducted 600 points from Freedom Tech’s score based on marginal ratings for

Freedom Tech’s REPs 6 and 10. AR198150. Freedom Tech argues that the VA should have disre-

garded those marginal ratings because the narratives describe “an overall (composite) rating of

satisfactory.” ECF No. 587 at 14 (citing AR61974-77). Freedom Tech also argues that the VA

61 should have asked for clarifications to give it the opportunity to explain the marginal ratings. ECF

No. 587 at 32-34. But Freedom Tech had the opportunity to submit a narrative with its proposal

explaining the marginal ratings. AR1944. It did not. AR400168. The VA was not obligated to

scour the record for information explaining Freedom Tech’s marginal ratings when Freedom Tech

declined to provide an explanation. ST Net, Inc v. United States, 112 Fed. Cl. 99, 110 (2013) (“[A]n

agency is not required to sift through a proposal in order to identify information that the offeror

failed to include in the correct place.”). And the solicitation was clear that a composite rating of

satisfactory is insufficient, as an offeror needed each rating to be satisfactory or above or needed

an explanation for any less-than-satisfactory rating. AR1944 (defining “positive past performance”

as “a satisfactory or greater rating for all of the rated elements over the entirety of the record”

(emphasis in original)).

Further, as discussed above (part II.B.1), the VA did not engage in disparate treatment

between Freedom Tech’s narrative and other offerors’ narratives. Freedom Tech has not met the

high bar required to demonstrate that the VA was irrational in its review of Freedom Tech’s past

performance. Taahut, 849 F. App’x at 266; Glenn Defense, 720 F.3d at 911. Thus, Freedom Tech’s

arguments concerning the VA’s evaluation of its proposal fail.

3. GDIT

The VA deducted points from GDIT’s self-score based on negative ratings for the project

GDIT submitted as its REP 10. AR400171-72. GDIT challenges that deduction. ECF No. 573 at

8-17. As the government argues (ECF No. 644 at 191-96; ECF No. 717 at 93-95), the VA rationally

evaluated GDIT’s negative ratings. As mentioned above, if an offeror wanted to receive points

despite marginal ratings, the solicitation requires an explanation for even one less-than-satisfactory

rating. See AR1944. GDIT did not provide a separate one-page narrative explanation. AR400172.

And the VA rationally declined to dig through later CPARS reports to find any later improvements

62 in GDIT’s performance of its REP 10 project. For the reasons explained by the government, GDIT

has not demonstrated that the VA’s evaluation of its REP 10 was irrational, arbitrary, or capricious.

Taahut, 849 F. App’x at 266; Glenn Defense, 720 F.3d at 911.

4. Pinnacle

Pinnacle challenges the VA’s evaluation of its REP 4 (ECF No. 589-1 at 10-21) and argues

that the VA did not sufficiently document its evaluation of Pinnacle’s proposal on remand (id. at

35-37). As discussed above, the VA was under no obligation to scour the record for information

that Pinnacle failed to properly highlight in its proposal. See part II.B.1. Nor was the VA obligated

to document its evaluation of Pinnacle’s proposal on remand when the substance and outcome of

that evaluation did not change. Id.

Furthermore, Pinnacle concedes that there were pages missing from one of the files it sub-

mitted in connection with its REP 4. ECF No. 589-1 at 24; ECF No. 669 at 9. Pinnacle argues that

the VA should have requested the missing pages through clarifications. ECF No. 669 at 9. As

discussed in part II.B.1, the VA is generally under no obligation to engage in clarifications. See

Safeguard Base Operations, 989 F.3d at 1348. And, as the government notes (ECF No. 644 at 8),

allowing Pinnacle to later amend its proposal to add pages arguably would have constituted dis-

cussions. The solicitation explained that the VA did not intend to conduct discussions. AR1939.

The VA’s decision not to seek additional documentation from Pinnacle is consistent with that in-

tent. The court agrees with the government’s argument (ECF No. 644 at 211-20; ECF No. 717 at

95-99) that the VA rationally evaluated Pinnacle’s proposal as provided and reasonably declined

to dig through Pinnacle’s documents to find information that Pinnacle failed to highlight or sub-

stantiate. See AR1917 (requiring an offeror to “substantiate all information” through one of two

provided verification methods); AR1920.

63 5. Systematic

Systematic challenges the VA’s deduction of points for insufficient experience under sub-

functional area 4.2.7, which requires a contractor to “provide services for evaluation, planning,

requirements analysis, design, coding and unit testing, system integration testing, implementation,

deploying, providing service for distributing, maintaining or updating a mobile application.”

AR1814. But, as discussed with respect to main functional area 4.3 above (part II.C), this court

will generally defer to the VA’s technical determinations. The VA reasonably determined that

Systematic’s submitted documents did not demonstrate the experience described in sub-functional

area 4.2.7. AR403774. This court will not substitute its judgment for the VA’s. Benchmade Knife,

79 Fed. Cl. at 740.

Even if Systematic had demonstrated that the VA was unreasonable in evaluating its expe-

rience with respect to sub-functional area 4.2.7, that error was harmless. Based only on deductions

made to Systematic’s self-reported score regarding MFA 4.3, Systematic has a ranking of ninety-

fifth. See ECF No. 644 at 220. Thus, like Freedom Tech, Systematic cannot demonstrate that it

would have had a substantial chance of qualifying for an award but for the VA’s other alleged

errors in evaluating Systematic’s proposal. See Asset Protection, 5 F.4th at 1365.

6. T4NG2 JV

T4NG2 JV argues that the VA arbitrarily and irrationally deducted points from T4NG2

JV’s self-score. ECF No. 560 at 24-31. The government responds that the VA rationally deducted

points based on deficiencies in T4NG2 JV’s substantiating documents and based on the submitted

REPs’ failure to satisfy technical criteria. ECF No. 644 at 222-34. The government adequately

explains the VA’s rational bases for deducting points from T4NG2 JV’s self-score, particularly

where the VA deducted points for network infrastructure administration, for interoperability, and

for T4NG2 JV’s experience in physical security rather than cybersecurity. Id.; ECF No. 717 at

64 101. The VA’s evaluation of whether a REP meets technical criteria is a technical determination

that this court will not disturb. Benchmade Knife, 79 Fed. Cl. at 740. T4NG2 JV has not demon-

strated that the VA acted irrationally, arbitrarily, or capriciously in deducting points from T4NG2

JV’s self-score.

7. Vector

As noted above (part II.B.1), the VA did not act irrationally in disqualifying Vector for

submitting the incorrect self-scoring worksheet with its proposal. Vector also submitted the decla-

ration of an employee to support its arguments that it should not have been disqualified for filing

the incorrect self-scoring worksheet. ECF No. 593-6 (declaration of Danielle Marie Trout). The

government argues that the declaration should be disregarded as an improper “extra-record sub-

mission[].” ECF No. 644 at 237. The court need not decide whether the declaration is admissible

because the declaration does not alter the court’s determination that the VA rationally disqualified

Vector.

Despite maintaining its disqualification of Vector, the VA also conducted a reevaluation

of Vector’s proposal on remand. AR403851. Vector challenges the issues raised in that reevalua-

tion. ECF No. 595 at 40-43. It is not necessary to reach Vector’s challenges to the reevaluation

because the VA rationally disqualified Vector on other grounds. And, as with other protesters dis-

cussed above, the deduction Vector would have received related to MFA 4.3 is enough on its own

to drop Vector to a rank of sixty-ninth: Vector claimed 15,887.86 points in its self-score

(AR192105), and the VA stated that, had it not disqualified Vector, it would have deducted 280

points from Vector’s self-score related to MFA 4.3 (AR403851-55); that would have left Vector

with a score of 15,607.85, which would put it in sixty-ninth place (AR404761). Thus, Vector can-

not show that it would have had a substantial chance of qualifying for an award but for the other

issues identified by the VA. See Asset Protection, 5 F.4th at 1365.

65 The government also adequately explains the bases for the VA’s evaluation of Vector’s

self-reported score. ECF No. 644 at 235-42; ECF No. 717 at 101-03. Even if the VA had disqual-

ified Vector in error, the VA’s other deductions from Vector’s score were rational, not arbitrary,

and not capricious.

8. Vision Tech

On remand, the VA deducted a total of 160 points from Vision Tech’s self-score based on

a lack of sufficient supporting evidence. AR404102-03. Vision Tech challenges the four separate

deductions that contribute to that 160-point total deduction. ECF No. 557 at 24-28. First, Vision

Tech challenges the deduction to its REP 10 based on the solicitation’s section L.12.2. Section

L.12.2 explains that an offeror will receive points for a certain kind of REP “if the project is a task

order against a multiple-award Federal Government contract.” AR1922. To verify, offerors were

required to submit (1) the Federal Procurement Data System report “for the multiple-award con-

tract that indicates ‘Multiple-Award [indefinite delivery vehicle]’” and (2) the report “for the task

order that demonstrates the claimed project was a task order against the multiple-award contract.”

Id. Nothing in the report Vision Tech submitted for REP 10 indicated that the task order was under

a multiple-award contract. See AR112234-36. Vision Tech argues that the task order’s multiple-

award status was verifiable “in the [Federal Procurement Data System].” ECF No. 557 at 25. The

court need not decide whether the Federal Procurement Data System is outside the record, because

it was reasonable for the VA to rely on the information in the report Vision Tech provided, which

indicated that the task order was not against a multiple-award contract. AR112235-36.

As to Vision Tech’s challenges to the other three deductions, the government adequately

explains the rational bases for the VA’s determination that Vision Tech did not provide sufficient

evidence supporting its self-reported scores, particularly on Vision Tech’s technical experience.

ECF No. 644 at 243-45; ECF No. 717 at 104.

66 L. The court need not decide the SAM.gov registration issue

Intervenor Cognosante argues that three protesters (Intellect, Omni Cares, and Pinnacle)

lack standing to protest because their SAM.gov registrations lapsed after they submitted their pro-

posals. ECF No. 657 at 2-4; see also ECF No. 717-1 at 25-38 (Intellect SAM registration); ECF

No. 717-1 at 40-54 (Omni Cares SAM registration); ECF No. 717-1 at 55-65 (Pinnacle SAM reg-

istration). Cognosante also argues that Clearview lacks standing because it did not have an active

SAM registration when it submitted its proposal. ECF No. 657 at 4-5; see also ECF No. 717-1 at

2-7 (Clearview SAM registration). The government supports both arguments. ECF No. 717 at 110.

The solicitation incorporated the 2018 version of FAR § 52.204-7 (AR1901), which requires an

offeror to maintain continuous SAM registration from the time of initial offer through award.

48 C.F.R. § 52.04-7(b)(1) (2018). According to Cognosante and the government, if an offeror’s

SAM registration lapses after the offeror submits its initial offer, the offeror is disqualified, just as

an offeror is disqualified if it was not registered in SAM when it submitted the offer. See ECF No.

657 at 2-3 (citing Analysis, Studies, & Training International v. United States, 175 Fed. Cl. 523,

534-35 (2025)). In the government’s view, those deficiencies in SAM registrations may be con-

sidered in terms of either standing or prejudice. ECF No. 717 at 111.

The Federal Circuit has recently explained that 28 U.S.C. § 1491(b)(1)’s “interested party”

requirement is a question of statutory, not Article III, standing. CACI, Inc. Federal v. United States,

67 F.4th 1145, 1151 (Fed. Cir. 2023); see also B.H. Aircraft Co. v. United States, 89 F.4th 1360,

1363 (Fed. Cir. 2024) (The typical “standing issue … [for a bid protest] presents a question of

statutory standing rather than Article III standing.” (quotation marks omitted)); see generally As-

sociated Energy Group, LLC, v. United States, 131 F.4th 1312, 1317 (Fed. Cir. 2025) (“The Court

of Federal Claims, though an Article I court, applies the same standing requirements enforced by

other federal courts created under Article III.” (cleaned up)). Because the issue of whether the

67 protesters satisfied the SAM registration requirement is one of statutory standing, it does not im-

plicate the court’s subject-matter jurisdiction. CACI, 67 F.4th at 1151. Thus, the court is not re-

quired to resolve the SAM registration question before addressing the merits of the protest. Id. at

1152; see also Independent Rough Terrain Center, LLC v. United States, 172 Fed. Cl. 250, 260

n.5 (2024).

As discussed above, the protesters’ challenges to the T4NG2 solicitation process fail on

the merits. For that reason, and because the court is doubtful particularly about Cognosante’s and

the government’s arguments with respect to Intellect, Omni Cares, and Pinnacle, when those com-

panies were registered in SAM from the time of their proposals until at least after the first round

of awards, it is unnecessary for the court to reach the government’s and Cognosante’s arguments

concerning SAM registration.

M. The protesters have not demonstrated prejudice

The government argues that even if the VA did err in its evaluation of some or all of the

issues on remand, the protesters fail to demonstrate that any error was prejudicial. To succeed, a

protester must establish that, but for the alleged error, “it would have had a substantial chance of

securing the contract.” CliniComp International v. United States, 904 F.3d 1353, 1358 (Fed. Cir.

2018) (quotation marks omitted); see Bannum, 404 F.3d at 1351. Because the court has determined

that the VA’s only arbitrary and capricious action—giving VCH credit for the work of a mentor

member of another joint venture—could not have prejudiced any protester (part II.D.1), no pro-

tester in this case has met that burden.

Further, as the government points out, the protesters challenge numerous point deductions,

but most of those deductions were not large enough on their own to keep any protester out of the

awardee pool. In the same vein, the challenges protesters make against the awardees generally do

not account for enough points to mean that, if successful, those awardees would be knocked out

68 of the awardee pool to allow the protesters to rise in the ranks and enter the awardee pool. See ECF

No. 644 at 246-47 (listing the protesters’ respective scores, total points invalidated, and number of

points needed to reach the awardee pool); ECF No. 717 at 105-10. As noted above, in general the

VA rationally interpreted and applied the terms of the solicitation, making it implausible that a

protester could successfully challenge enough point deductions to put it in the running for an

award.

In sum, in addition to failing to demonstrate that the VA’s determinations in evaluating

proposals were irrational, arbitrary, or capricious, protesters have failed to demonstrate that any

alleged errors were prejudicial.

N. The protesters are not entitled to injunctive relief

To obtain a permanent injunction, a protester must demonstrate that it succeeded on the

merits of the case. PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004). Here,

protesters have failed on the merits. Thus, no injunction is warranted. See Obsidian Solutions

Group, LLC v. United States, 54 F.4th 1371, 1376 (Fed. Cir. 2022) (“There can be no injunctive

relief without a corresponding prevailing claim.” (quotation marks omitted)).

O. King Street has not shown that the government’s declaration must be excluded

King Street filed a motion to exclude the declaration of Jeffrey Neill. ECF No. 675. The

Neill declaration is an attachment to the government’s principal brief. ECF No. 644-1. In his dec-

laration, Mr. Neill, the Associate Executive Director of the U.S. Department of Veterans Affairs

Office of Procurement, Acquisition and Logistics, Technology Acquisition Center, explains that

the VA needs to move forward with performance on the T4NG2 project soon. Id. at 1-2. Mr. Neill

states that “if the Court were to hold that up to 15 contract awards were made in error, [he] will

terminate those awards for the convenience of the government consistent with the Court’s opinion

69 and [he] will not make any new awards to replace them for at least one year.” Id. at 2. He will,

however, make new awards if necessary to ensure that the SDVOSB reserve is satisfied. Id. at 2-

3. He also states that, if the court holds that “up to eight of the protesters did not receive a contract

award in error,” he will make awards to those protesters by exercising the on-ramp provision. Id.

at 3. Mr. Neill justifies that approach by explaining that the T4NG2 project is critical to the VA’s

mission and that the VA must minimize the potential for future delays to the maximum extent

possible. Id. at 3-7. The government refers to that declaration in its opening brief when discussing

prejudice and other injunction factors. ECF No. 644 at 137, 248, 255-56, 258.

King Street argues that the Neill declaration should be excluded because it is a “post hoc

rationalization” and “effectively amend[s] the” solicitation. ECF No. 675 at 2-3. According to

King Street, the solicitation “clearly and unambiguously stated that [the] VA would make up to 30

awards,” and the Neill declaration contravenes the solicitation by suggesting that the VA might

reduce or increase the number of awardees. Id. at 3-5.

King Street does not dispute that the VA may rely on a declaration for the purposes of

injunctive relief. ECF No. 675 at 2; see Bannum, 404 F.3d at 1355. King Street acknowledges that

the government is using the Neill declaration to support its arguments “against the protesters’ prej-

udice caused by [the] VA’s various errors,” although it characterizes that reliance as distinct from

“focusing on injunctive relief.” ECF No. 675 at 2, 4. The government points out that the solicitation

described awarding “up to 30 contracts,” not exactly thirty contracts, and that the solicitation re-

served the right to make additional awards via the on-ramp. ECF No. 676 at 5. This court has

already recognized the validity of the on-ramp provision. Technatomy, 173 Fed. Cl. at 498; see

also part II.A. And it is plain from the language of the solicitation that the VA can award more or

70 fewer than thirty contracts. Thus, the Neill declaration does not “amend” the solicitation, as King

Street argues.

The court is also persuaded that the government has used the Neill declaration primarily

for the injunction factors. As King Street itself notes (ECF No. 675 at 2, 4), the government dis-

cusses the Neill declaration to show a lack of prejudice to the protesters. The lack of prejudice is

relevant to the injunction factors. Further, the VA’s expected next steps relate to the factor of

irreparable harm. By describing those steps in its principal brief and attachment, the government

gave protesters a fair opportunity to address those steps as they pertain to prejudice and the injunc-

tion factors. Because the Neill declaration is relevant to the injunction factors, and does not amend

the solicitation, the court will deny King Street’s motion to exclude the declaration.

III. Conclusion

For the reasons stated above, this court grants the government’s motion for judgment on

the administrative record (ECF No. 644). The defendant-intervenors’ motions for judgment on the

administrative record (ECF Nos. 645, 646, 647, 648, 649, 650, 651, 652, 653, 654, 655, 656, 657,

658, and 659) are also granted. The plaintiffs’ motions for judgment on the administrative record

(ECF Nos. 557, 560, 562, 564, 566, 569, 570, 573, 581, 584, 587, 589, 592, 594, and 595) are

denied. King Street’s motion to exclude the Neill declaration (ECF No. 675) is denied. The clerk

of the court shall enter judgment accordingly.

IT IS SO ORDERED.

/s/ Molly R. Silfen MOLLY R. SILFEN Judge