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Incumbent Contractor Challenges Government Award to Competitor

Allied Technology Group, Inc. v. U.S., Case No. 10-120C (Fed. Cl., Jul. 2, 2010)

In this post-award bid protest, Plaintiff Allied Technology Group, Inc. (“Allied”) challenges the issuance of a Blanket Purchase Agreement (“BPA”) by the Department of Justice (“DOJ”) to Intervenor, Monster Government Solutions, LLC (“Monster”) to provide a web-based, automated recruiting system for DOJ’s Justice Management Division and its consortium members. Allied, the incumbent contractor, has provided these services through its General Services Administration (“GSA”) Federal Supply Schedule (“FSS”) listing since 2001 as the reseller of automated systems developed by Avue Technology Corporation. After evaluating proposals, DOJ selected Monster as the best value offeror. Allied filed a protest at the Government Accountability Office (“GAO”) on October 15, 2009, which was denied on January 21, 2010. Allied commenced this action on February 23, 2010.

Allied challenges DOJ’s evaluation of proposals, where the Contracting Officer (“CO”) disqualified Allied from the competition based upon six exceptions that Allied took to DOJ’s Request for Quotation (“RFQ”). Allied alleges that the CO’s source selection decision was “fatally flawed,” and that his disqualification of Allied was “pretextual,” intended only to preclude a later bid protest. (Compl. 1.) Allied especially complains about the manner in which the agency performed the technical and past performance evaluations. Allied contends that DOJ conducted improper discussions and treated its proposal differently from Monster’s proposal, particularly in failing to disqualify Monster for similar noncompliance with the RFQ’s requirements. Allied requests declaratory and injunctive relief nullifying the award to Monster.

The Court considered this protest on an expedited basis. Defendant submitted a certified copy of the administrative record on March 1, 2010. Allied filed a motion for judgment on the administrative record and a motion to supplement the administrative record on March 5, 2010. On March 15, 2010, Monster filed its own motion to supplement the administrative record, and Defendant filed a response opposing Allied’s motion to supplement. On March 25, 2010, the Court granted in part Allied’s motion to supplement the record and denied Monster’s similar motion. Allied Tech. Group, Inc. v. United States, No. 10-120C, 2010 WL 1388162, at *1 (Fed. Cl. Mar. 25, 2010). On March 19, 2010, Defendant filed a motion to dismiss Allied’s complaint for lack of jurisdiction pursuant to Rule 12(b)(1) of the Court of Federal Claims (“RCFC”) and, in the alternative, its response and cross-motion for judgment on the administrative record. Monster submitted its response and cross-motion on the same date. Allied filed a reply in support of its motion and opposition to the Government’s and Monster’s cross-motions on March 26, 2010. The Court heard oral argument on the parties’ motions on April 14, 2010.

For the reasons stated below, the Court finds that Allied, as the only other offeror in this procurement, has standing to challenge DOJ’s contract award to Monster. Were the Court to hold otherwise, in circumstances where there are only two offerors, a procuring agency could insulate itself from review of an improper award simply by disqualifying the losing offeror. Applicable case law precludes such a result. Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1334 (Fed. Cir. 2001); Dyonyx, L.P. v. United States, 83 Fed. Cl. 460, 467-69 (2008). Allied’s standing to sue particularly is warranted where the agency evaluated Allied’s proposal as if it were eligible for award, and only belatedly declared the proposal unacceptable. Therefore, Defendant’s motion to dismiss Allied’s complaint for lack of jurisdiction is DENIED.
 

 

Judge(s): Wheeler
Jurisdiction: U.S. Court of Federal Claims
Related Categories: Administrative Law , Government / Politics
 
Circuit Court Judge(s)
Thomas Wheeler

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Frederick Claybrook Crowell & Moring LLP
Lindsay Denault Crowell & Moring LLP
James Peyster Crowell & Moring LLP
Gunjan Talati Crowell & Moring LLP

 
Defendant Lawyer(s) Defendant Law Firm(s)
Jeanne Davidson U.S. Department of Justice
Donald Kinner U.S. Department of Justice
Michael O'Connell U.S. Department of Justice
Tony West U.S. Department of Justice

 
Intervenors Lawyer(s) Intervenors Law Firm(s)
David Goodwin Greenberg Traurig LLP
Richard Moorhouse Greenberg Traurig LLP
Jacob Pankowksi Greenberg Traurig LLP
Emily Parker Greenberg Traurig LLP

 

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838, 841, 931. allied also received less than perfect scores in certain factors, but the "excellent" for that factor. similarly, if the "look and feel" of an hr manager review obligating the co to document immediately his assessment of offers. further, the pep is an the co to include the results of the reference checks in the ter and also to draft a business performance. in evaluating monster and allied under sub-factor three, understanding of the allied suggests that monster's price quotation limited monster's obligation to provide language allowed it to revise its quotation which it did not allied failed to prove and the use of discussions, if necessary. see ar 229-38. the court consistently has held documentation regarding its best value decision as adequate. see sys. plus, inc., 86 fed. cl. system has "minor compliance exceptions with the accessibility of forms, text equivalents solicitation states that the co may engage in discussions or negotiations, the rfq to receive. see tel-instruments elec. corp., 56 fed. cl. at 178 (holding that a bid limiting assertion, the provision does not prohibit an offeror's system from asking or collecting social basis, doj was "willing to pay a premium for a proposal with a greater technical rating." ar also al-ghanim combined group v. united states, 56 fed. cl. 502, 519-20 (2003). having selected for award." id. be held unacceptable as a result. having taken that risk and lost, allied now cannot avoid computed by multiplying the rating assigned by the tep for each factor by the weight for that methodology used in selecting the contractor to receive the order." allied's misplaced 2. live system demonstration factor proposed redactions of any competition-sensitive, proprietary, confidential, or other protected by placing an order against a schedule contract using the procedures consistent with its acquisition plan, doj informed offerors that the bpa would performance scores. finally, the ssr report would identify "the single offeror that in the unacceptable. the fact that doj found monster's quotation acceptable, notwithstanding the the co emphasized that the savings to the government would increase if additional -32- judgment in finding that allied's proposal was unacceptable and that even if it were in awarding the contract to monster was coherent and a reasonable exercise of his discretion. highlighted avue's standard fss termination provision and allied's exceptions, and opined given the circumstances, the test is whether allied has a direct economic interest in the purpose of the acquisition was to have a contract vehicle in place that other sub-agencies co failed to exercise independent judgment in assessing the price and non-price factors of allied argues that doj acted arbitrarily and capriciously by awarding the bpa to platform requires that the avue msa . . . take[] precedence over all other agreements/terms one of the requirements listed in the solicitation is for offerors to provide training or -6- view of the ter represents the best value to the department," describing how and why a and conditions across our entire client base." id. additionally, part 5 lists five exceptions co evaluated the full range of costs across all years for all clins, comparing the prices as quotation unacceptable. moreover, assertions of pretextual disqualification are tantamount failure to follow the pep did not render its evaluation of allied's proposal arbitrary, solicitation stated that doj would do so only if deemed necessary by the co or if it was in certified copy of the administrative record on march 1, 2010. allied filed a motion for "clarifications" are defined as "limited exchanges between the government and offerors, that 577 f.3d at 1381 (finding no prejudice where the procurement official improperly deviated not exceptions at all. (pl.'s mot. 36; pl.'s reply 10-11.) allied first points to its prepayment * id. (emphasis added). the plain language of allied's quotation makes clear that allied allied identified differences between the rfq's requirements and its msa. ar 809. 0024 and inquired whether monster would allow the government to extend the contract, if contain firm fixed price clins for a one-year base period and four one-year options. ar 3, cancelling the bpa at no cost to the government. id. 12(b)(1), the court must "presume all undisputed factual allegations to be true and construe social security numbers "mandated a determination of unacceptability." id. finally, gao rfq to the offeror whose quote represents the best value to the government after evaluation transition costs at one-twelfth of the appropriate clin as stated in the rfq. ar 1031. 231, 293. each offeror also was required to submit five references for "similar efforts which not have overcome the staggering price difference. as judge allegra colorfully explained in price balloons to $11,698,107 for clin 003 under the contract's five-year term, while jurisdictional argument that an agency arbitrarily can declare a protested proposal to be under the navigational capability sub-factor, the technical evaluation panel ("tep") make an award on the basis of initial quotations without the use of discussions." ar 238. protest the protester must show not only a significant error in the procurement process, but prepaid allied's price annually. ar 592. allied's total price would increase to more than to each factor. ar 18. after conducting the individual evaluations, the tep was to draft and services."). in light of this "truncated procurement process," the court views doj's source selection decision identifying which offeror would receive the award. ar 20. the solicitation's evaluation criteria provided that "the government intend[ed] to as noted, doj recognized that conflicts or disagreements may exist between the rfq agency's decision may be upheld, even if the court may have "interpreted and applied the demonstrating that doj's actions prejudiced it. to prevail in a bid protest, a plaintiff must inspection and acceptance provision. see ar 1037. the co found these exceptions the awardee. the co noted that he found monster to represent "the best value to the government pointed out during oral argument, monster could not provide pricing for clin standing is a function of a quotation's acceptability misconstrues established case law. the option year 4." id. according to the amended rfq, the monthly cost for the transition intervenor, monster government solutions, or to its infrastructure or platform. see def. a "`rational connection between the facts found and the choice made.'" banknote corp., 56 discussions. allied interprets too narrowly the rfq provisions on which it relies, without 395 (1999) ("plaintiff's proposition that part 15 standards must be imported into an fss major strengths which indicate exceptional features or innovations that 177. the solicitation indicated that doj intended to issue a minimum of one task order b. the disqualification of allied's proposal was reasonable. subpart 8.4, a protestor must demonstrate that the agency's procedures were arbitrary and for non-text elements, and keyboard accessibility." ar 547. allied argues that compliance and cross-motion for judgment on the administrative record. monster submitted its response prospective bidder had a "substantial chance" of receiving the award. impresa, 238 f.3d at compliance certification form stating that its quote was compliant with electronic and that the solicitation would take precedence in any conflict. ar 204, 277-78. in particular, undisputed facts, a party has met its burden of proof based on the evidence in the record." both quotations generally were compliant with section 508. unlimited rights in data developed by the contractor. ar 189, 191. allied's quotation states support assoc. v. united states, 46 fed. cl. 145, 154 (2000) (citation omitted)). this best offer from a technical and price standpoint." ar 229. whether discussions have been held. career training concepts, inc., 83 fed. cl. at 230. at 211. three years "in performing implementation of automated recruiting systems of similar size, would have received the award even if the agency had performed the analysis allied requests. among other things, identification of the terms and conditions that doj found unacceptable. of far 8.404 because allied has failed to demonstrate that it would have had a substantial allied therefore cannot show that it suffered any prejudice from the co's assessment that standing is a jurisdictional issue and the party invoking federal jurisdiction bears the not comply with "the more formal and rigorous procedures for negotiated procurements." requests declaratory and injunctive relief prohibiting doj from allowing monster to begin allied's claims are contradicted by the administrative record. most telling is part 5 injunctive relief is an extraordinary remedy, and should be granted only in limited and complexity. . . ." ar 231. doj also would evaluate an offeror's proposed transition package that meets all of the rfq requirements. ar 1031-32. annual prepayment discount the burden of showing that the award decision had no rational basis. impresa, 238 f.3d at rule 12(b)(1) of the court of federal claims ("rcfc") and, in the alternative, its response approach away from the "more formal and rigorous procedures for negotiated procurements." procurement differently). in view of the significant price difference and allied's exceptions ar 1026. in the pep. (pl.'s mot. 59-61.) the pep called for the tep to prepare a draft technical performance is generally adequate, and possesses a similar number of 15,000 ars users. id. the savings would increase if additional sub-agencies joined the functionality and technology to support human capital and human resources (hr) business comment, added a new provision advising offerors that unacceptable quotations could be decision was "fatally flawed," and that his disqualification of allied was "pretextual," g. allied's action in this court annually, but with no minimum guarantee. ar 177. the solicitation also called for a requested only minimal redactions of yearly pricing and discount information, while plaintiff allied ar 1016. "medium" priority requirements by the stated time periods could result in doj unilaterally request turned the co's clarifications into discussions. even if monster's request to strike contractor in accordance with the material terms and conditions of the request for proposals." monster offered more favorable pricing despite allied's slight technical superiority. see ar [t]his proposal expressly assumes that the client will join the rest address below the merits of allied's claims. for bids or proposals . . . or the award of a contract or any alleged violation of statute or ruled that allied has not succeeded on the merits, the court does not need to address the three 1045, 1047. in contrast, allied's total price would be approximately $78 million if doj schedule." ar 809; see also ar 587-88. finally, allied took exception to the rfq's 2. discussions as a prerequisite to disqualification additionally, allied points to the tep's technical evaluation and the co's past performance reliance on the pep, an internal government document, already has been addressed in this the federal circuit explained in bannum, inc. v. united states that the standard of their offer that may conflict with the terms of the rfq. ar 154. specifically, allied monster similarly informed the co that the expunge/delete services were not required for -40- received the contract award but for the procurement error of the agency. id. at 1353. on offerors' initial quotations without holding discussions. see ar 238. while the its standard gsa pricing. ar 233. doj then would determine whether "the total evaluated 1563; axiom res. mgmt., inc. v. united states, 78 fed. cl. 576, 590 (2007)). the court -5- summary judgment. 404 f.3d at 1355-57. under rcfc 52.1, the court reviews a motion subtypes, of which competitive proposals are one and fss contracts are another."); unisys approach and past performance ratings, the awardee's lower price still trumped plaintiff's its quotation was firm and fixed. ar 328-29. based on this information, doj had no reason manner in which the source selection would be accomplished and the procedures by which cl. at 369. the court, however, may grant injunctive relief if the plaintiff establishes that: relative to each technical evaluation factor." id. (1) it has succeeded on the merits; (2) it would suffer immediate and irreparable harm if allied challenges doj's evaluation of proposals, where the contracting officer for judgment on the administrative record are granted, and plaintiff's cross-motion for offerors to demonstrate: (1) the steps for human resources ("hr") personnel to follow in superiority but determined that the price evaluation "overwhelmingly favors monster." ar rehabilitation act requires federal agencies to make electronic and information technology provides security stats on any system breaches or pii compromises. security is very important substantial discretion to determine which proposal represents the best value for the total $7,000,486 each sub-factor ranging from "excellent" to "unacceptable." ar 834-41. while the pep allied's clin 003 pricing with incorporating the past performance ratings, the co assigned a total of 83.5 points to allied the government's best interest. ar 229, 238. accordingly, the rfq required offerors to and 79.49 points to monster. ar 1038. the co then drafted a spreadsheet comparing each e. evaluation of proposals (2) customer service (25 points); and (3) system upgrades (10 points). ar 236-37. sub- offerors to submit their most advantageous offers in their initial quotations. see, e.g., ar rating for a given reference. ar 18-19. additionally, the co would assess each offeror's hr personnel to review applicants; (5) the steps for managers to review and make a thereby preclude the protestor from standing to challenge the award."). the court therefore offeror's business behavior and commitment to customer satisfaction." ar 237. after evaluating proposals, doj selected monster as the best value offeror. allied filed a 1. technical merit factor in prior years. id. to document "[a]ny issues of noncompliance" prior to issuing his source selection decision. submit their most advantageous quote in response to the initial features, administrative costs, etc.) to meet the government's needs. evaluations are substantially equal. in complying with the solicitation, the co reasonably resolution of the protest. to question monster's representation that it was committed to providing the training doj allied contends that this procurement may not yet be concluded because it has appealed the allied suggests that the co failed to document his price analysis in accordance with a. standing complying with the solicitation's section 508 requirements. see labatt food services, inc., co sought clarification on allied's prepayment discount pricing and inquired whether allied 124. allied also provided comments to doj, including a four-page section entitled training to 50 students in the base year and 25 students thereafter. (pl.'s mot. 41-43.) allied overall costs analysis" as defined in far 8.404(d). id. at 63. allied similarly argues that the including first-year transition costs of [***]. ar 1038. justice, commercial litigation branch, civil division, washington, d.c., for defendant. terms and the contract terms that are part of the prospective offeror's fss listing. ar 232, no prejudice where the protestor's price was 35 percent higher than the awardee's despite a ar 182, 255. 3. the co's disqualification of allied's quotation was not "pretextual." in conducting the best value determination, the acquisition plan provided that doj **************************************** * assessment of national security risk . . . ." id. allied's claims. (def.'s mot. 1-2.) when considering a motion to dismiss pursuant to rcfc remaining factors. accordingly, allied's request for a permanent injunction and declaratory first stated that its ars system, "hiring management - employer 5.0" had minor compliance discussions after receipt of quotations if it is considered in the complete a task. id. issued rfq no. djjv-09-rfq-0543 ("rfq" or "solicitation") on march 2, 2009 seeking nullifying the award to monster. would need to perform such services to meet the rfq's requirements. id. the co informed 28, 1993). allied made a business decision to adhere to the provisions of its msa and to to possess "direct economic interest," allied must demonstrate that it was prejudiced bpa. ar 231, 236. 1312, 1319 (fed. cir. 2003) (noting that the question of prejudice goes directly to the made a business judgment to award the contract to the lower-cost offeror. see obligations of the parties). having fully considered the nature and extent of the exceptions government.")). conducting the past performance reference checks. ar 15, 18. the co also would fed. cl. at 230-31. accordingly, the court concludes that the co's exchanges with monster discount information, which will put allied and monster on an equal footing if the agency conducts any the record is required to ensure the procurement official's decision had a rational basis or did allied proposed in its quotation. ar 1038. at that clin level, monster's price for the full apparently takes issue with monster using as its basic price term the government's court to hold otherwise, in circumstances where there are only two offerors, a procuring not justify paying the much higher price offered by allied. moreover, allied's six exceptions not "`substitute its judgment for that of the agency if the agency's decision is reasonable.'" descriptions, electronic postings of vacancies on usajobs, and online, automated judgment on an action by an interested party objecting to a solicitation by a federal agency data rights statements as exceptions to the rfq. system, allied cannot demonstrate that it was prejudiced by the tep's evaluation of past -23- completion of the transition period, while requirements marked as "medium" must be contract[,] . . . it proceeds to determine, as a factual matter, if the bid protestor was adversely impact [their] rating." id. "n/a" for monthly transition costs, based upon the agency's amendment of the rfq. ar 255, "best value basis," as in this case, the procurement official is afforded "even greater fed. cl. at 390 (quoting motor vehicle mfrs. ass'n v. state farm mut. auto. ins. co., 463 f. allied's gao protest to monster. (def.'s mot. 22-27.) defendant argues that, because the co found allied's selection; and (6) the steps for hr personnel to close the job vacancy. ar 234. doj would monster's price remains the same. ar 1026. this amount is more than $8 million or 365 jurisdiction by a preponderance of the evidence. reynolds, 846 f.2d at 748; cubic def. sys., co informed allied that its exceptions "did not reduce allied/avue's technical score and factor. id. the ter was to reflect the collective views of the panel in a narrative assessment this protest. one such term is section 8 of the rfq, entitled "confidentiality of data." ar performance; and (4) price. ar 236-37. the solicitation required offerors' proposals to the federal circuit and this court. see rex serv. corp., 448 f.3d at 1307-08; impresa, 238 allied's own quotation failed to include the mandatory section 508 compliance identifiable information as unique employee identifiers. see ar 312. contrary to allied's be interpreted as mandating discussions, in direct conflict to the solicitation provision stating from its price quote. (pl.'s mot. 69.) the court finds no merit to allied's argument that this priority. ar 209-25; 298-316. one of the "high" priority technical requirements includes it is so ordered. -12- would consider whether the "site allow[ed] for clear and intuitive navigation through the see bannum, inc. v. united states, 404 f.3d 1346, 1356 (fed. cir. 2005). a court will not second guess." e.w. bliss co., 77 f.3d at 449. the court declines to set noted that his inquiry was "not a request for a revision" and that the "government w[ould] questions led doj to revise the rfq and include additional language describing a front-end department." ar 1039. allied does not dispute that its quotation took exception to some of the rfq's terms unacceptable. it argues that the agency unreasonably classified some of allied's quotation although not directly applicable to this procurement, far part 15 sets forth the the activities of contracting officers when placing orders under the fss pursuant to far they had "the technical expertise and existing infrastructure to handle an effort of this size have any property or possessory rights to any correspondence, files, or materials in background2 states, 86 fed. cl. 325, 337 (2009) (noting that protestor must prove by clear and convincing unacceptability because "only one other competitor submitted a quote." ar 1037. thus, to external systems." id. for award. such a position is contrary to established case law and has been rejected both in however, in circumstances where quotations are considered "substantially technically equal," the pep calls for the co to conduct a price evaluation. ar 18-19. accordingly, the "suffer disparate treatment or particularized harm" does it have standing to sue. id. each offeror's quotation and also failed to document his best value determination adequately. 2001 as the reseller of automated systems developed by avue technology corporation. quotations for the base year and four option years. ar 295. while adhering to the firm fixed could result in the co rendering its quotation unacceptable. in response to the draft rfq, allied cannot challenge doj's determination that its quotation was non-compliant and that post-award bid protest; standing; noted during oral argument, the security breaches referenced by the technical evaluation section of the draft rfq. see ar 60a, 191. section 18, entitled "order of precedence," also noncompliant proposal cannot be the basis of an award."). a solicitation term is considered period would be one-twelfth of the annual cost of the clin the agency then was utilizing. of allied's technical proposal entitled "exceptions." ar 809. part 5 states that the "avue allied's pricing should doj elect not to pre-pay. id. like the e-mail to monster, the co monster's clin 003 pricing 189-90. however, in the formal rfq, doj added subparagraph (f) explicitly incorporating number was expected to increase as additional doj sub-agencies implemented the new evaluation panel ("bep"). id. while the co would serve as the sole member of the bep, administrative procedures act ("apa"). 5 u.s.c. 701 - 706 (2000); see also impresa, 238 a substantial chance of securing the contract." labatt food serv., inc. v. united states, 577 monster were ineligible for award, doj would be obligated to resolicit the contract and in response to the government's inquiry, monster confirmed that it would allow compete for the contract, allied is sure to change its proposal pricing and exceptions that proved fatal the & co. v. united states, 87 fed. cl. 381, 389 (2009) (holding that the court will not substitute correspond to total points, or what constituted a "perfect" score. id. more importantly, doj -29- united states, * written portion of the tep's technical evaluation. for example, tep members assigned any unacceptable terms must be discussed with the offeror. (pl.'s mot. 35.) however, the plain language of the rfq to support its claim. 43a. price obligation, the solicitation required offerors to identify any proposed discounts from the process the automated system would use to evaluate and rank applicants; (4) the steps for monster to perform work under the bpa and requested the co to "strike this . . . language offerors' quotations using the point system set forth in the rfq. based on their initial monster because monster's quotation allegedly failed to comply with some of the material arbitrary, capricious . . . or violates to prejudicial effect an applicable procurement basis, the rfq again instructed offerors that their "initial offers shall contain the offeror's would be "determined based upon the employee range clin being utilized at the end of later determined by the co to be necessary." ar 229, 291. discussions with monster and allowing it to amend its quotation, without affording allied allied contends that monster's quotation should have been rendered unacceptable for the foregoing reasons, defendant's motion to dismiss plaintiff's complaint for lack under the third sub-factor, systems upgrades, doj would evaluate an offeror's "proposed are in progress or were completed within the past three (3) years." ar 231-32, 293-94. the option year 3 [***] pretext to defend against a potential protest. (pl.'s mot. 31-33.) the court finds no merit for the reasons stated above, the court finds that the co's best value determination summary" detailing his analysis of the offerors' proposals. ar 1034-44. the co and discussions). the actions of the parties, not the characterization by the agency, determine terms and conditions of a solicitation, the proposal "should be considered unacceptable . . nonconforming, while accepting the awardee's allegedly nonconforming proposal, and "significant strength" and "significant weakness" for the same proposal feature in the same on august 13, 2008, doj issued a draft rfq for an automated integrated staffing, requirement and scope stated in the rfq and . . . accept each of the requirements, provisions, supplement. on march 25, 2010, the court granted in part allied's motion to supplement allied also proposed an externally-hosted ars solution using avue digital services source selection plans and other internal agency documents are guidelines that do not give any ars product, hiring management (hm) - employer 5.0, was "generally compliant" with not obligate the government to continue to accept similar terms later. see, e.g., intown significant strengths and weaknesses for each sub-factor under the technical merit factor. overall, doj considered the non-price factors, when combined, to be significantly would not be necessary for it to fulfill the contract. ar 1031. monster additionally noted that it included all of its pricing for the services doj requested in the solicitation. id. monster technical acceptability produces an illogical result of potentially insulating from review an shows the final technical evaluation scores, including past performance: holloway, 87 fed. cl. at 393; see also ellsworth, 45 fed. cl. at 395 ("the purpose of the fss option year 3 [***] base [***] 8.405. see far 8.404(a). far 8.404(d) provides: of establishing prejudice by showing that there was a substantial chance that it would have this procurement, has standing to challenge doj's contract award to monster. were the to allied. ar 1046. in the memorandum, the co informed allied that because it had taken on their logical support plans and "proven devotion to customer service." ar 237. finally, -10- mantech telecomm., 49 fed. cl. at 67 (noting that a source selection plan, not included in may occur when award without discussions is contemplated." far 15.306(a) (emphasis "including the possibility of being found unacceptable without discussion." ar 1057. requirements 62 and 63, training must be centrally located "throughout the geographic contains the cover letter to the rfq and general background information relating to the 15, even if "some procedures also present in part 15 are utilized." sys. plus, inc. v. united even if doj erred in selecting an offeror who did not comply with a material lacked a rational basis or if the agency's decision-making involved a violation of regulation for defendant. no costs. id. together, the co and the tep would be responsible for "the entire selection process." all reasonable inferences in favor of plaintiff." a & d fire prot., inc., 72 fed. cl. at 131 without rational basis or contrary to law when evaluating the bids and awarding the schedule, and needs to be removed." id. (emphasis added). allied's offer similarly notes the tucker act, as amended by the administrative dispute resolution act of 1996, protest. see pl.'s mot. 30. the co's decision to disqualify allied's quotation because of its exceptions in part 5 of the technical quote portion of its proposal. ar 547-52. monster taking into account the rfq as a whole. evaluation . . . a major factor." ar 1038. the co further noted that the government would allied protested doj's award decision to the gao on october 15, 2009. the gao bpa and raised the user level. id. the co thus concluded that "even if allied/avue's united states, 74 fed. cl. 277, 284 (2006); global computer enter., inc. v. united states, instructs the co to review the offerors' business and price quotations to determine whether precedence so as to prevail over any contrary terms contained in the allied therefore must satisfy a two-part burden to demonstrate that it has standing to assert see info. sci. corp., 73 fed. cl. at 94-95. proposal that could be altered or explained to materially enhance the proposal's potential for simply prohibited offerors from using applicants' social security numbers or personally ar 238. the solicitation also notes that doj "reserves the right to conduct discussions if removed from consideration. allied argues that the phrase "cannot be resolved" means that response to the initial [s]olicitation." id. as doj would evaluate quotations on a best value in this case, the co noted in the acquisition summary that he found allied's proposal prejudiced by that conduct." bannum, inc., 404 f.3d at 1351. the plaintiff bears the burden difference between the two resulted in the agency selecting the less expensive monster requirement indicating their ability to meet that requirement by the end of the 60 to 90-day and entitles the agency's decision to a "presumption of regularity." emery worldwide evaluations, the tep members completed score sheets, which instructed them to identify parties" are "limited to actual or prospective bidders or offerors whose direct economic represents the best value (as defined in far 2.101) and results in because the offeror was not given the opportunity to revise its proposal). million. such a drastic price difference precludes a finding of any prejudice to allied. see compliance with the firm fixed price requirements of the rfq. ar 19. the pep instructs c. motion to dismiss for lack of jurisdiction to evaluate overall cost in accordance with far 8.404(d), and by improperly averaging the failed to disqualify monster for taking exceptions to the section 508 requirements and the within doj could use to acquire the same system. id. conducted the procurement more in accord with the agency's acquisition plan. see holloway no. 10-120c, 2010 wl 1388162, at *1 (fed. cl. mar. 25, 2010). on march 19, 2010, personnel action request ("par") system, which serves to accommodate automatically acceptable, its technical superiority did not justify the higher cost. the rfq directs the presumption that government officials act correctly, honestly, and in good faith when jacob b. pankowski, with whom were richard l. moorhouse, emily c. parker, and david denied the protest on january 21, 2010. ar 1049. the gao rejected allied's assertions that plaintiff, * allied argues that the co's disqualification of its quotation as unacceptable was a allied acknowledged in its reply brief that it took exception to the rfq's invoice and data4 850, but then assigned allied a "significant weakness" for the same feature, ar 851. also, capricious. moreover, to the extent the agency did err in failing to draft such a report, allied in their quotations that conflict with the terms and conditions of the rfq. ar 232. doj percent subscription prepayment discount from its fss pricing. ar 592, 588. without the court finds that the co's best value analysis reasonably considered the relative discretion when conducting a best value analysis, the court will not disturb the award. see monster regarding clin 0024 did not constitute discussions. see info. tech., 316 f.3d at the evaluation of the customer service sub-factor included an offeror's customer u.s. 29, 43 (1983) (citation omitted)). thus, where agency officials reasonably exercise their tep attended the offerors' live system demonstrations and completed live system -3- prot., inc. v. united states, 72 fed. cl. 126, 131 (2006)). the court may make findings of jurisdiction, then it must dismiss the claim. a & d fire prot., inc., 72 fed. cl. at 131. the gao also found reasonable doj's determination that monster's quotation was allied's other exceptions also were material. avue's msa provided, for example, the co found monster's quotation acceptable, reasoning that "monster agreed to the terms -18- unreasonably disqualified allied for taking exceptions to the rfq. (compl. 28-29.) payment in arrears." ar 191. this section notes that in the event of an inconsistency solicitation. id. the co's determination was not unreasonable. taking allied's invoice in this post-award bid protest, plaintiff allied technology group, inc. ("allied") for clins 002-0023 were firm and fixed and it provided no revisions to its quotations when awarded to monster, on a monthly basis at a cost of one-twelfth the appropriate clin. ar for the reasons stated below, the court finds that allied, as the only other offeror in violation of procurement laws); data gen. corp., 78. f.3d at 1563-64 (holding that the acceptable level of technical competence available at the lower price." banknote corp., 56 solicitation indicated that doj would make a reasonable effort to contact each of the commitment to the continual improvement of its automated recruiting system" and "any p. denault, crowell & moring, llp, washington, d.c., for plaintiff. in this case, given the substantial difference between allied's and monster's price acceptable, notwithstanding its exceptions. ar 1059. the gao reasoned that monster's price was significantly lower. this court in electronic data systems, llc v. united states solicitation. however, the government reserves the right to use the evaluation of the understanding of the requirements sub-factor included each and conditions laid out in the solicitation." ar 1039. while the co considered allied's from the solicitation and permitted all offerors to submit proposal revisions by e-mail). term, claiming that it was not an exception, but rather a price discount that the government sub-factor, the tep considered whether various screens were laid out in a way that displayed system. ar 183. doj further required a product that could interface with doj's 2- system demonstration 22.9 23.5 have been rejected as unacceptable. id. at 41-43. found unacceptable. id. like the ter, the ssr report also would include a ranking of (pl.'s mot. 66-70.) doj argues that the exchanges at issue constituted clarifications and that * not distributed as part of a solicitation do not themselves confer rights to potential offerors."); -41- performance because the incidents all involved monster.com and had no relationship to need not "be rejected out of hand." m.w. kellogg co./siciliana appalti costruzioni v. suggest that any doj errors reasonably could offset the price difference so as to make doj's receives four points, an offeror would receive a "good" adjectival rating for that factor. cpd 152, 2005 wl 1994327, at *1 (comp. gen. jul. 28, 2005) (same). thus, doj's allied identified four other areas where its msa precedence could lead to exceptions to the good the system exceeds the government requirements. the system has the co also prepared an "evaluation for basis of award" memorandum that he provided 187-88. this clause states that the contractor must agree to maintain the confidentiality of advantage the allied/avue proposal would give the government could not justify the large the life of the contract." ar 328. monster also reiterated that the pricing table enclosed in to doj's request for quotation ("rfq"). allied alleges that the co's source selection monster's quotation was acceptable. id. at 27, 32. however, defendant's contention that f.3d at 1334; dyonyx, 83 fed. cl. at 460 ("the government originally made the senseless technically equal." ar 238. the court also found questionable the co's communications with tep members the section 508 requirements. ar 547. while monster identified "minor exceptions" to determined that the agency reasonably found allied's proposal to be unacceptable given that allied technology group, inc., * and, strive as it might, plaintiff cannot squeeze that pachyderm out of the door." id. at 23. different screens." ar 860. that is, if an ars user wanted to return or proceed to a separate errors in conducting the technical and past performance evaluations were arbitrary and only where it violated the fundamental fairness of the procurement process. unisys corp., same as the "confidentiality of data" provision in the draft rfq. ar 56a-57a, 187-88. contract once again."). here, if the court finds that monster should have been disqualified weaknesses and strengths. to determine an overall technical rating for each offeror. ar 1002-16. the following chart procurement . . . amounts to an unwarranted embellishment of the decisional law."); discussion material because they affected the price and the delivery of the services requested in the evaluation factor allied/avue monster -2- tep's technical evaluation scores. (pl.'s mot. 75-77.) allied contends that when determining heard oral argument on the parties' motions on april 14, 2010. discussions with monster. regarding clin 0024, offerors were not required to submit a price d. submission of proposals accessible to people with disabilities. id. section 508 also is a high priority technical value determination, must consider the lowest overall cost, which requires the consideration taking into account this requirement, the rfq instructed offerors to submit quotations with required at a firm fixed price. with the incumbent contract in place with doj for the previous eight years. see ar 152, * standard of review is "highly deferential," advanced data concepts, inc., 216 f.3d at 1058, administrative record lacks any evidence that the co questioned tep members about their not agree. allied next argues that the co unfairly disqualified it because the rfq required doj allied also argues that monster's price quotation attempted to place a limitation on ranking of quotations in conformance with the weighted evaluation scores, which are involved in selecting a higher-rated, higher-priced proposal is not justified, given the similarly, the gao noted that to the extent the phrase "cannot be resolved" in the rfq may option year 1 [***] 2. technical evaluation report data rights and conditioning payment terms is non-responsive because it modifies the legal see ar 87-175. monster provided doj with comments pertaining to clins, security, and with section 508 is required by statute, the far, and the rfq, and taking exception to conditions of the rfq were not reflected in the actual numerical technical score. thus, the 229, 238. the solicitation further makes clear that doj intended to award the contract based thus, the co improperly classified it as an exception. (pl.'s mot. 36, n.3; pl.'s reply 11.) total 83.5 79.49 monster submitted firm fixed prices for each clin as required. ar 327. monster's significant strengths to offset them. cannot show that it was prejudiced by the error in light of the drastically higher price in its redactions. the court found allied's proposed redactions to be over-broad. a. the draft request for quotations although the solicitation does not outline fully the mechanisms for conducting the more important than price. ar 237. however, "[t]he total evaluated price w[ould] be the 327. warned offerors that "[c]onflicting provisions will be considered as exceptions to the terms submitted monthly for payment in arrears, and section 12 which gives the government year price allied argues that doj treated allied and monster differently by conducting in its exceptions sheet, allied first noted that avue's msa from the fss contract would take contracting documents. relative to each technical evaluation factor." id. allied argues that doj's failure to abide impresa, 238 f.3d at 1334 ("[i]f the [plaintiff's] bid protest were allowed because of an sub-factor. one evaluator identified avue's concierge service as a "significant strength," ar much of the decision as possible. evaluation. ar 237. doj invited each offeror to give a maximum three-hour demonstration, extended closing date. ar 321, 583. doj evaluated monster's and allied's prices by using agency's determination to award a contract to a lower-cost offeror despite a modest disparity in the united states court of federal claims the solicitation provides that "the government will award a bpa resulting from this to demonstrate prejudice and therefore standing.'") (citation omitted). thus, a protestor has which resulted in inconsistencies in the tep's evaluation of its proposal. id. at 48-51. allied quotations without the use of discussions. offerors should therefore even if the security breaches somehow were related to monster government solutions' v. * pl.'s mot. 65. allied argues that to read the lowest overall cost analysis as optional, ignores change management, expunge/delete services." id. the co inquired whether monster claims. united enter. & assoc. v. united states, 70 fed. cl. 1, 18 (2006) (citing lujan v. that "any exceptions taken to the terms and conditions of the rfq may adversely impact its id. part 4 emphasizes that conflicting provisions will be considered exceptions to the terms poor the system does not meet some of the government requirements. the msa agreement, which requires annual payment in advance. ar 588. should the companies in the event discussions ensued. ar 233. sub-factor for posting a job vacancy, that offeror would receive an adjectival rating of defendant-intervenor. * unacceptable by the government and cannot be resolved may result in the offeror being intended only to preclude a later bid protest. (compl. 1.) allied especially complains about -7- members to assess individually each offeror's capabilities based upon a review of the services to the government. id. doj informed monster that it would not accept revised and other internal documents are guidelines that do not give any rights to offerors. manson domenico garufi v. united states, 238 f.3d 1324, 1334 (fed. cir. 2001); dyonyx, l.p. v. that provide avue with the consistency that is mandatory in order to generate the tremendous training estimates does not convert monster's stated fixed price quotation to level-of-effort chance of receiving a contract award or would have been "within the zone of active rendering monster's proposal unawardable." (pl.'s mot. 37.) the court disagrees. to accusations of bad faith. see savantage fin. serv., inc. v. united states, 595 f.3d 1282, worldtravelservice v. united states, 49 fed. cl. 431, 441 (2001) (finding rational the using avue's ars, members of the tep with personal knowledge were asked to submit allied next contends that doj's technical evaluation of its quotation was prejudicial. the government's error in failing to amend a solicitation, "a significant difference in price . quotation provided that it would provide training to "all employees that require training for and cross-motion on the same date. allied filed a reply in support of its motion and of subject matter jurisdiction is denied. defendant's and defendant-intervenor's motions factor one refers to a "requirements list" attached to document b which details 114 not accept a revised quote." id. monster confirmed that: (1) it would allow the government process and failed to create a consensus report as called for in the pep. id. at 51, 70-74; pl.'s whether the user ever had to duplicate information. id. finally, under the look and feel users need to navigate through and if the set-up of the screens is intuitive." id. doj required transition period. ar 184, 236. a requirement marked as "high" must be available upon the court issued this decision under seal on may 28, 2010 and invited the parties to submit1 program is to provide federal agencies with a simplified process for obtaining certain goods under this contract," also is substantially similar to the draft rfq provision. ar 58a-59a, this court reviews an agency's decision pursuant to the standard set forth in the highlighted as directed." ar 154. the formal rfq, apparently in response to allied's quotation was unacceptable. contrary to allied's assertions, the co's determination was not in [a] procurement" and "involve discretionary determinations of procurement officials that which it would evaluate on the "user-friendliness of the system, including how many screens circumstances. dyonyx, 83 fed. cl. at 467; see also great lakes dredge & dock co., 60 fed. weaknesses, and any minor weaknesses are insignificant when that selection would be made without discussions, "such a patent ambiguity" required allied the court acknowledges that allied's margin of technical superiority may have score. see, e.g., ar 985. in response to the co's inquiries, two tep members altered their one month after gao had denied allied's protest. allied alleges that doj improperly and wheeler, judge. for section 508 compliance, as the rfq required. moreover, the co reviewed and evaluated co did not abuse his discretion in finding that allied's invoice exception was material. judgment is denied. states, 68 fed. cl. 206, 211 (2005); ellsworth assoc., inc. v. united states, 45 fed. cl. 388, base. the fact that monster submitted its pricing quotation based on the government's initial added). see generally info. tech., 316 f.3d at 1320 (providing an analysis of clarifications act. (pl.'s mot. 37-38.) allied points to a provision in monster's offer which states that its include price and technical components, each in separate volumes. ar 229. the shall be considered government property." ar 189. thus, under avue's msa, the propose all services necessary to meet the requirements of the rfq and receive a favorable avue's msa. ar 280, 809. each term that allied identified as an exception was consistent order of importance are: (1) technical merit; (2) oral/system presentation; (3) past cl. at 384; aba freight sys., inc. v. united states, 55 fed. cl. 392, 409 n.13 (2003)). surplusage of its provisions.'" united int'l investigative serv., 109 f.3d at 737 (quoting sys. corp. v. united states, 49 fed. cl. 57, 71 (2001) ("it is fundamental that a materially element of standing."); see also info. tech. & applications corp. v. united states, 316 f.3d save $3,796,135 if doj selected monster over allied based on the clin 003 level of up to $3,204,351. id. allied's price at the same clin level, without transition costs, was in addition to the disparate scoring, the court found a number of inconsistencies in the -34- slightly higher" technical rating for allied, "monster proposed a far lower overall price." id. cost savings avue achieves for its clients." ar 725 (emphasis added). moreover, allied's the rfq required offerors to certify whether, and to what extent, their products selection improper. see data gen. corp., 78 f.3d at 1563; see also axiom res. mgmt. inc., reasons stated below, the court finds allied's arguments unavailing. -9- consideration." alfa laval separation, inc. v. united states, 175 f.3d 1365, 1367 (fed. cir. requirement in the requirements list attached to document b of the rfq. see ar 305. taking into account certain alleged security breaches in monster's job application software. -28- quotation. doj selected seven persons to serve on the tep; however, only four of the seven tep allied alleges that doj failed to accord monster's past performance proper weight, f.3d 7, 9 (1st cir. 1998); poliquin v. garden way, inc., 989 f.2d 527, 533 (1st cir. 1993)); see also thomas c. wheeler indicate how scores should be tabulated. indeed, the score sheets do not instruct tep decision to accept monster's quotation as compliant with this requirement. by its acquisition plan was arbitrary and capricious, and prejudicial to allied. the court does the security incidents referenced were irrelevant to the evaluation of monster's past was conditioning its offer on doj's agreement to pay in advance. doj similarly requested . . can and often does preclude such a finding." id. at 24 (citing data gen. corp., 78 f.3d at discretion than if the contract were to have been awarded on the basis of cost alone." galen 1. technical evaluation definition for discussions and clarifications, relevant to the resolution of allied's claim. regarding its pricing. ar 1029-30. the co first noted that monster did not address clin the court agrees with allied's assertion that there were errors in doj's technical the court notes that allied knew full well that taking exceptions to the solicitation selection if its protest were sustained. see galen med. assoc., inc., 369 f.3d at 1331 these requirements, this court has held that trivial or negligible defects do not render a f.3d at 1336; see also klinge corp. v. united states, 87 fed. cl. 473, 479-80 (2009) analysis, id. at 32, and treated the offerors unequally by engaging in discussions with monster s/ thomas c. wheeler administrative record, and defendant filed a response opposing allied's motion to took exception to the rfq's section 508 terms and conditions; (2) monster's training pricing of the subject of the [rfq]." blackwater lodge & training ctr. v. united states, 86 fed. considering bids.") (citation omitted). to support its claim, allied must demonstrate by clear that section 15 of the rfq is "contrary to both the avue msa and the federal supply defined scoring system, the tep's ratings varied significantly by individual. for example, defendant, * allied asserts that monster failed to comply with section 508 of the rehabilitation far part 15 does not apply to such [fss] procurements."). where a solicitation governed submission and tracking of employment applications, among other features. ar 51a, 183. the evaluation would be conducted. see ar 13-41. pursuant to the pep, the co serves multiple functions in the source selection process. in addition to being an advisor to the tep, and the choice made." great lakes dredge & dock co., 60 fed. cl. at 358 (citing antarctic rfq's "invoices" clause was "contrary to both the avue msa and the federal supply to be unacceptable based on the material exceptions it took to the rfq. ar 1037. he security breaches by monster.com similarly is misplaced. (pl.'s mot. 47-48.) as monster extent there were any discrepancies and ambiguities in monster's price quotation, the federal in an effort to resolve redaction issues, the court requested allied to submit a memorandum explaining monster's minor compliance exceptions to the section 508 requirements or its collection of interest of competition, the co performed a full evaluation of its proposal, and based on the agency indicates to an offeror "significant weaknesses, deficiencies, and other aspects of its data concepts, inc. v. united states, 216 f.3d 1054, 1057-58 (fed. cir. 2000) (citation 832. the members of the tep who performed the technical evaluation analyzed both allied also cannot take solace from the fact that doj and other government agencies need to be separately scoped and priced." ar 328. following receipt of quotations, the co assess fees on a "per-seat, per-server, per-transaction, or professional service fee basis." id. allied filed a seven-count complaint in this court on february 23, 2010, more than quotation unacceptable. m.w. kellogg co., 10 cl. ct. at 26. the court finds no basis to a. standard for judgment on the administrative record omitted)). thus, in a bid protest, a procurement decision may be set aside if the decision doj personnel office, and adhere to all doj security requirements. ar 182. a second government. there are some weaknesses, but they are more than both allied's and monster's technical quotations despite their respective deficiencies in fully on august 2, 2009, the co issued his source selection decision choosing monster as that procurements conducted under subpart 8.4 are different from those conducted under part following receipt of their initial evaluations. ar 827-32, 896-900, 949-50, 985. the co contained in the rfq. ar 586-605, 621-30. allied's offer used an "all you can eat" pricing ar 18, it appears from the administrative record that the tep did not prepare an evaluation regulation." tech. sys., inc. v. united states, 50 fed. cl. 216, 222 (2001). resolving cross- court's decision to the united states court of appeals for the federal circuit, and if it prevails, one material "where it has more than a negligible impact on price, quantity, quality, or delivery capricious and highly prejudicial. id. at 51-59, 63. reason to question monster's representation. the court therefore will not set aside doj's have accepted allied's similar exceptions in years past. previous acceptance of terms does awareness network, inc. v. u.s. nuclear regulatory comm'n, 59 f.3d 284, 290 (1st cir. and conditions. id. the co noted that, while allied's exceptions were "seen as a refusal to under the fourth evaluation criterion, offerors were to submit firm fixed price take exception to various terms and conditions in the rfq, knowing that its quotation could 1999) (citing c.a.c.i., inc. - fed. v. united states, 175 f.3d 1567, 1574-75 (fed. cir. 1983)); of a year," ar 841-42, without giving allied the same credit, despite having the same feature e.w. bliss co., 77 f.3d at 448-49. contains similar language to the draft rfq. this section provides that "[i]n the event of an government's questions to monster were discussions, and not clarifications, allowing judgment on the administrative record and a motion to supplement the administrative record rfq noting that any conflicting provisions that cannot be resolved may result in an offeror produced under the contract clause, the invoices and termination clauses, and the complied with section 508. ar 190, 226-28. monster's quotation included the required they are compliant with the rfq requirements. id. specifically, the co would be members participated in both the technical evaluation and the live system demonstration. ar section 508 runs "afoul both of one of the rfq's terms and conditions and of federal law, offerors were positive, and when averaged, monster received a past performance rating of locations covered by the contract" and "presented in various media" such as satellite both offerors' business and price quotations because allied was the only other competitor advantage did not justify the additional cost. ar 1039. the co similarly informed allied recruitment and position classification system, or ars. administrative record ("ar") reviewed and returned the evaluations seeking additional comments and descriptions to d. the contracting officer did not engage in discussions. were in direct conflict to the terms and conditions of the rfq, the co reasonably identified performed evaluation. id. at 21. however, any changes to the technical scoring in allied's requirements constituted a pretextual attempt to circumvent an earlier injunction); bean complexity and scope either with other government agencies or in the public sector." ar -27- reasoned that even if the disappointed bidder could have revised its proposal in light of the "[t]here is no reasonable way to assert that allied/avue, receiving a technical score 5.04% requirements contained in the rfq; and (3) its proposed pricing included a standard security id. (citing e.w. bliss co., 77 f.3d at 448). where a proposal fails to conform to the material ratings definition examples given of previous upgrades placing its system ahead of its competitors." id. f.3d 1029, 1037 (fed. cir. 2009). where the court determines that "the [g]overnment acted to the rfq, any agency missteps did not prejudice allied because the agency still would have precedence over both rfq sections. ar 260-61, 262-63, 809. allied also took exception precedence clause . . . allied identified four other areas in which its msa precedence might removed from consideration." id. part 5 of the rfq's quote instructions similarly provides che consulting, inc. v. united states, 78 fed. cl. 380, 387 (2007) (quoting a & d fire applicable."). thus, to prevail in a bid protest for a solicitation conducted under far direct conflict existed with the rfq's order of precedence clause at section 18, which stated circuit has held such discrepancies do not warrant disqualification. see data gen. corp. v. allied took six exceptions to the rfq's terms and conditions, including the order of part 4 of the rfq's quote instructions required offerors to highlight any provisions fed. cl. at 390 (citation omitted). the court's main task is to ensure that the co articulated warranted where the agency evaluated allied's proposal as if it were eligible for award, and to section 15 requiring invoicing monthly in arrears. ar 264, 809. allied's price was based percent higher than monster's price. ar 1026-28. in the acquisition summary and in the consortium members. allied, the incumbent contractor, has provided these services through rendering its quotation ineligible for award. id. the pep required the co to incorporate the results of the two reports into a source evaluations of allied. see, e.g., 909-11, 943-44. warns offerors that "any exceptions taken to the terms and conditions of the rfq may identify in their quotations individuals with the authority to speak on behalf of their thus, the court only will overturn an agency's determination that an offeror's proposal failed the solicitation instructed offerors to check either "yes" or "no" for each department." ar 1033. he stated that while the technical evaluation resulted in a "very and conditions of the rfq," and that "[a]ny terms and conditions . . . considered of law for the court to decide. fortec constructors v. united states, 760 f.2d 1288, 1292 far subpart 8.4 contains regulations for fss acquisitions and provides federal agencies with3 1491(b)(1). in this case, the government challenges the court's jurisdiction to entertain inspection and acceptance clause and proposed that it should be subject to the terms in 189-90, subparas. (a), (f). monthly payments installing an ars that uses unique employee identifiers in lieu of social security numbers or provides that "[e]ach client is governed by the same master subscription agreement terms administrative record, however, contains no evidence that the co also drafted a ber see pl.'s reply 2-5. the language in the pep does not contain any strict time limits all data to which access may be gained throughout contract performance. id. similarly, security numbers or other personally identifiable information. allied's reliance on previous data rights clause was "consistent in spirit" with the rfq's rights in data provision and account the substantial price difference, the co awarded the bpa to monster. contacted monster by e-mail inquiring whether monster would allow the government to technology group, inc. asked for extensive redactions of proposal and agency evaluation information. inc., 554 f.3d at 1037. to be considered acceptable, "a proposal must represent an offer to where it made a business decision to offer an expensive system). allied could compete for the contract again. under either of these circumstances, the court option year 1 [***] 15,000 ars users to compare monster's and allied's pricing, using the prepayment discount accepting the prepayment discount and using the monthly installment payment method technical proposal to be unacceptable due to the exceptions, the co stated that he evaluated requirements in the solicitation. allied specifically contends that: (1) monster's quotation section 15 of the terms and conditions requires invoices to be "submitted monthly for not involve a violation of regulation or procedure. centech group, inc. v. united states, 554 729. by contrast, the rfq provided that "[a]ll data and information developed by . . . equivalent clin as required in the rfq; (2) its proposed pricing included all of the 1323 (holding that communications between the agency and the offeror were not discussions "train-the-trainer sessions" to doj. ar 257. in response to a pre-proposal question, doj to the rfq cannot be overlooked. to be sure, doj did not conduct a flawless procurement, base [***] applying the premium allied imposes for monthly invoicing as required by the rfq, allied's on an annual prepayment of the ars services being procured and its exception noted that the posting a vacancy; (2) the steps for an applicant to follow in responding to a job vacancy; (3) proposed redactions come from its subcontractor's master subscription agreement, which is publicly were clarifications and that the co had no obligation to engage in discussions with allied. software, documentation, and other data developed by the contractor under this bpa." ar although the arbitrary and capricious standard is highly deferential, "it is not a rubber id. the co reasonably considered the offerors' price difference in the acquisition award." career training concepts, inc., 83 fed. cl. at 230. on the other hand, security numbers, monster took exception to a technical requirement of the rfq, thereby option year 2 [***] motions for judgment under rcfc 52.1 is "akin to an expedited trial on `the paper record.'" amer. fed'n of gov't employees v. united states, 258 f.3d 1294, 1302 (fed. cir. 2001). are not significantly different, . . . the quote with the lowest evaluated price w[ould] be much of the fact that monster requested doj to strike the expunge/delete services language information technology accessibility standards. ar 548-50. summary, noting that "the price evaluation overwhelmingly favor[ed] monster" and that and disqualifying allied for its stated exceptions to the rfq terms, among other actions, id. clin 0023 level of 115,000 employees, monster's total price would be $13 million. ar nonetheless proceeded to evaluate allied's business and price quote because the agency only 1. far 8.404 and 8.405 its judgment for the agency's judgment even where the court would have conducted the corp. v. united states, 89 fed. cl. 126, 140 (2009) ("far 8.404(a) specifically states that 1995)). this standard of review does not require the court "to accept . . . bald assertions on on or before june 9, 2010, the parties shall carefully review this opinion for system is tied to usajobs which requires applicants to furnish their social security regarding whether expunge/delete services were required, monster stated such services ar 327, 1038. in accordance with the rfq, monster proposed discounts from its standard determining factor for award where two or more quotes [were] considered substantially that section 12 of the rfq "needs to be subject to the msa . . . ." ar 809. holloway, 87 fed. cl. at 389; see also lumetra v. united states, 84 fed. cl. 542, 549 (2008); 1. classifying allied's terms as exceptions opposition to the government's and monster's cross-motions on march 26, 2010. the court $7,000,486. id. allied's price was 218 percent higher than monster's evaluated price. price); candle corp. v. united states, 40 fed. cl. 658, 665 (1998) (holding that even if the determination was an "after-the-fact" rationalization or a pretext in anticipation of a potential option year 2 [***] demonstrations: limited its communications with monster to clarifications. ar 1052. the gao also allied reads requirement 107 too narrowly. when read in its entirety, the solicitation on march 5, 2010. on march 15, 2010, monster filed its own motion to supplement the based upon language in monster's pricing quote, the co contacted monster by e-mail services discussed in monster's quotation were necessary for monster to provide ars requests." ar 236-37. the solicitation explained that offerors would be evaluated based clin 003, 10,001 15,000 users, representing the level of usage doj then was experiencing. bids were submitted, gives no rights to outside parties); delta dental of cal., b-296307, 2005 for all offerors, and include the identified "strengths, weaknesses, and risks of each offeror quotations, allied cannot reasonably show that it would have received the award in the allied's interpretation, the rfq, read as a whole, does not suggest that offerors are -26- without notice or discussion, the gao held that the solicitation provisions adequately far 8.404(d). allied reads this provision to suggest that the agency, when making its best excellent the system far exceeds government requirements. the system has respond by june 24, 2010. the court conducted a hearing on july 2, 2010 to consider the proposed . . . ." ar 229, 291. to be considered acceptable, an offeror's quote must meet the "total that requires or even suggests disqualifying an otherwise qualified bidder because of use social security numbers or other personally identifiable information, and doj had no evaluation a "lowest overall cost" analysis as defined in far 8.404(d). far 8.404 governs -16- ar 1024-25. allied also reminded doj that it had uniformly taken the prepayment discount specified that it would require training for at least 50 trainers initially and that for each clin resolved." (pl.'s mot. 33-35; pl.'s reply 5-8.) the interpretation of a contract is a question 1. allied cannot show prejudice from doj's technical evaluation. provided no revisions or changes to its pricing in light of the co's inquiry. allied makes option year 2 [***] and impartially, but need not be treated the same." id. (citing far 1.102-2(c)(3)). master subscription agreement, with the msa included in the interest. id. at 369 (citing fmc corp. v. united states, 3 f.3d 424, 427 (fed. cir. 1993)); see criteria by which the agency would review and rate the offerors. the evaluation factors in contract award, and the msa will be given the first order of **************************************** * determined that allied was not an interested party to protest other aspects of monster's negotiations, for the contract at issue. accepting allied's proposition, the court does not see how allied extend the contract, if awarded to monster, on a monthly basis at a cost of one-twelfth of the expunge/delete services, as well as establishment of dedicated environments, which will would be the final source selection official. ar 15. base [***] requests for personnel actions. id.; ar 183, 2.4. doj also received requests to provide television broadcasts and video conferencing. ar 303. -39- to extend the bpa on a monthly basis at a cost of one-twelfth of the appropriate full-time security numbers. (pl.'s mot. 46-48.) requirement 107 of the rfq provides that "[t]he the co would be responsible for evaluating offerors' business and price proposals and solicitation requirement, allied has failed to show that it suffered any prejudice as a result. effect of large price difference and informed offerors that doj would conduct the procurement under the federal acquisition and two others. ar 1036. after issuing the formal rfq on march 2, 2009, doj received 2) the offeror's ability to estimate costs accurately and to stay within budget, and 3) the the requirements, provided for ratings of 22-25 (excellent), 18-21 (good), 14-17 monster government solutions. ar 1157-71; see also allied tech.group, inc. v. united the "plain meaning of the test and nullifies an entire clause, leaving it meaningless." id. advance and that avue's msa was "consistent in spirit" with the rfq's rights in data provision. id. favor would not diminish the rationality of awarding the bpa to a qualified vendor whose evaluation. ar 237. doj required each offeror to describe its experience during the past and `in a manner which gives reasonable meaning to all its parts and avoids conflict or the government's needs. there are major weaknesses and no regarding allied's assertion that the co did not have the discretion to disqualify allied such terms as exceptions.4 c. doj's evaluation of monster's proposal was reasonable. doj received quotations from monster and allied respectively, by the april 30, 2009 madison servs., inc. v. united states, 92 fed. cl. 120, 131-33 (2010); akal sec., inc. v. united states, 87 ("[p]retext or bad faith requires more than mere error."); carahsoft tech. corp. v. united evaluation rating." id. while the government reserved the right to conduct discussions, the -15- value to the government . . . ." id. although the work would be competed on a best-value service plan and considered how the plan would "respond to government questions and materially affects the quality or delivery of the automated system the government expected id. see also info. sci. corp. v. united states, 73 fed. cl. 70, 94 (2006). the federal circuit has absence of doj's errors. for evaluation purposes, the co used clin 003 for 10,0001 to support their respective ratings. see, e.g., ar 877. of the bpa. ar 255. the co later amended the rfq to clarify that pricing for clin 0024 offer to be unacceptable." ar 1046. the memorandum also informed allied that, in the being removed from consideration for the contract. id. part 5 of the quote instructions also rights clauses. see pl.'s reply 11. allied nonetheless maintains that doj was not obligated to pay in of allowing the offeror to revise its proposal." far 15.306(d). discussions occur when the difference in this case was much greater. indeed, allied's evaluated price was at least 218 -33- draft rfq's list of functional requirements limited a potential offeror's ability to provide sub-factor for "system upgrades" was worth only 10 points, an offeror receiving 9-10 points administrative record. defenders of wildlife, 504 u.s. 555, 561 (1992)); see also myers investigative & sec. serv., while allied's technical score was 5.04 percent higher than monster's, the difference only stamp." overstreet elec. co. v. united states, 47 fed. cl. 728, 742 (2000) (quoting citizens that these objections to the rfq amounted to "a refusal by allied/avue to accept material invoice from the contractor, the provisions of the bpa will take precedence." ar 204. between the provisions of the bpa and the contractor's invoice, "the provisions of this bpa that doj would follow in awarding the ars contract. ar 15. as previously discussed, burden of establishing by a preponderance of the evidence that it has standing to pursue its no. 10-120c also that the error prejudiced it.'" (quoting data gen. corp., 78 f.3d at 1562)). rather, allied particular offeror was selected for recommendation and "what benefits it provides to the our court has held that the prejudice requirement for standing is less stringent than opinion. -11- an offeror's proposal must conform to the terms of the solicitation. centech group, by doj to a new contractor's system, if necessary. ar 181, 254. clins 002-0023 stuyvesant, llc v. united states, 48 fed. cl. 303, 320 (2000) ("[there exists a] strong f.3d 1305, 1307 (fed. cir. 2006)). allied asks the court to consider whether an agency, when determining which offeror the government's assertion that standing necessarily is linked to an offeror's in this assertion. evidence allegations of pretext or bad faith). allied fails to meet this burden. the court considered this protest on an expedited basis. defendant submitted a "document c" includes quote instructions, ar 229-35, and "document d" provides a only belatedly declared the proposal unacceptable. therefore, defendant's motion to dismiss collectively a technical evaluation report ("ter"). id. the ter was to identify any taking the price difference into account, the co explained that allied's slight technical in its proposal, but marked clin 0024 as "n/a." ar 327. monster also stated in its to an adjectival rating of "excellent." ar 835. on the other hand, receiving 0-9 points for recently addressed the impact of a significant price difference under circumstances similar to 75.) procurement officials have substantial discretion in evaluating which proposal represents internal government document and this court consistently has held that source selection plans judgment on the administrative record is denied. the clerk is requested to enter judgment compliance certification and provided further that, based upon an independent audit, its technical quotations. ar 17. in addition to a narrative assessment of each factor, the tep clin 0023, the difference between monster's and allied's prices is slightly less than $100 injunctive relief is not granted; (3) the harm to plaintiff outweighs the harm to the business proposal was acceptable, which it is not, monster still presents the best value to the past performance accounts for the final 10 percent of the non-price portion of the but its award decision has a reasonable basis. the court cannot say that doj's ultimate conditioned its offer on the government's acceptance and adherence to avue's msa, information on or before june 9, 2010. by that date, intervenor monster government solutions allied contends that doj conducted improper discussions and treated its proposal differently 294. part 4 of the quote instructions attached as document c states that offerors must (holding that a disappointed bidder had standing to bring a bid protest, where it finished 734, 737 (fed. cir. 1997); c.r. pittman constr. co. v. united states, no. 08-196c, 2010 wl to satisfy the material requirements of the solicitation if such a finding was arbitrary and the doj improperly conducted discussions with monster and held that the agency properly appropriate clin. ar 1029. the co similarly inquired whether the expunge/delete a critical point that are not otherwise tied to the administrative record and that are at least in allied cannot demonstrate any prejudice from the tep's evaluation, the court will not disturb processes and operations." ar 183. specifically, the solicitation called for the installation f.3d at 449). even when a solicitation emphasizes technical merit, an agency "may properly on september 30, 2009, the co notified allied of the award to monster. ar 1045. year price five-year term of the contract, including transition costs as a non-incumbent contractor, was doj issued the draft rfq to allow for potential offerors to comment upon doj's planned the manner in which the agency performed the technical and past performance evaluations. inconsistencies in its quoted prices."). accordingly, the court finds that the co acted monster a "significant strength" for "undergoing a series of upgrades throughout the course connection with the performance of the contract. id. the language of this provision is the offeror's references and inquire about "1) the quality and timeliness of the offeror's work, med. assoc., inc. v. united states, 369 f.3d 1324, 1330 (fed. cir. 2004) (citing e.w. bliss its general services administration ("gsa") federal supply schedule ("fss") listing since holloway, 87 fed. cl. at 393 ("competitive procedures have been classified into specific (citing scheuer v. rhodes, 416 u.s. 232, 236 (1974) overruled on other grounds by harlow that allied would own everything not considered "client data or "government data." ar agency could insulate itself from review of an improper award simply by disqualifying the 43.) allied specifically contends that monster's quotation limited its pricing to train only 50 system demonstration employed the following definitions to rate the offerors' ars students and thus its quotation deviated from the solicitation's pricing framework and should can elect to use procedures from these other parts [of the far], they are not presumptively constr. co. v. united states, 79 fed. cl. 16, 19 (2007) ("internal agency documents that are by far subpart 8.4 uses procedures found in far part 15, the procurement official need unacceptable the system does not meet many of the government requirements. the statement of work ("sow"), and a list of 114 technical requirements. ar 179-228. and represented that it would meet all of the functional, technical, and security requirements f. doj's best value determination allied contends that doj should not have disqualified its proposal as being holloway, 87 fed. cl. at 393; see also sys. plus, inc., 68 fed. cl. at 210 ("[w]hile the agency -4- agency has provided an opportunity for proposals to be revised or modified." id. dms all-star joint venture v. united states, 90 fed. cl. 653, 661 (2010) (citing bannum, numbers. (pl.'s mot. 46.) allied argues that, by requiring applicants to provide their social determination merely because allied disagrees with the agency's analysis. e.w. bliss co., conclusion selection recommendation ("ssr") report. id. the ssr report would include an as requested in the rfq, monster included firm fixed prices for clins 002 - 0023 -24- total $11,698,107 price [was] consistent with the offeror's gsa pricing and any proposed discounts." ar 237. -42- * -31- monster government solutions, llc, * 4. available on the federal supply schedule. if the procuring agency affords allied another opportunity to f.3d at 1332; great lakes dredge & dock co. v. united states, 60 fed. cl. 350, 358 (2004). first time. moreover, if the court were to accept all of allied's proposed redactions, it would need to do same awardee absent errors. quotations. id. granite constr. co. v. united states, 962 f.2d 998, 1003 (fed. cir. 1992)). (satisfactory), 25-33 (poor), and 0-24 (unacceptable), while sub-factor one, understanding of 3. doj's past performance evaluation was reasonable. potential hedge to a bid protest action." id. at 29. allied also argues that doj improperly and conditions of the rfq. id. the solicitation added language not included in the draft allied makes much of the fact that the co did not follow the procedures in the pep general description of the evaluation factors and the source selection process, ar 236-38. cl. 488, 505 (2009). however, if a defect in a proposal is trivial or negligible, the proposal therefore was unlawful. where a procurement is challenged on this ground, plaintiff bears higher technical rating. see blackwater, 86 fed. cl. at 514. the co exercised independent however, allied now argues that two of the exceptions identified by the co actually were firm fixed price pricing requirements for "train-the-trainer" training, and for collecting social dramatic price difference "representing nearly a 29 percent spread." id. at 23-24. the price first to engage in discussions with offerors regarding any exceptions that "cannot be specified in the rfq, allied's pricing for the five-year bpa for clin 003 was even higher: precedence over all other agreements or terms and conditions. ar 587, 809. therefore, a competition-sensitive, proprietary, confidential or other protected information, and submit to id. at 77-82. rejected." great lakes dredge & dock co., 60 fed. cl. at 358. thus, a careful review of both offerors identified exceptions to the requirements of the rfq. monster noted determine which offerors are the "most highly rated and capable offerors," and ultimately which offer "represents the best value," the procurement official also must include a "lowest the government asserts that allied lacks standing to protest the issuance of the bpa government if an injunction is granted; and (4) granting injunctive relief serves the public only partially offset by strengths. products on the fss would be eligible to compete. id. the basis for its redactions by june 17, 2010, and afforded defendant and monster the opportunity to after a review of the offerors' technical quotations, five of the seven members of the commercial-off-the-shelf product available on the fss. ar 178. accordingly, the rfq award. id. at 31-32. allied argues that the co failed to conduct a lowest overall cost future. see hr'g tr. 53-54. moreover, nothing in the solicitation expressly required offerors -36- four of the six evaluators found allied's technical quotation to be superior, while two on defendant's motion to dismiss and on the parties' cross-motions for judgment on the ar 592, 1017-1021. allied's pricing assumed that doj would take advantage of a [***] 89 fed. cl. at 140. this requires, under the far, that "all contractors . . . . be treated fairly quotation and subsequent aspects of the source selection decision. ar 1059-60. responding to the co's inquiry. as such, the court finds that the co's exchange with difference between allied's and monster's quotations. allied simply cannot show that it a web-based, automated recruiting system for doj's justice management division and its its system complied with this requirement. ar 539. allied, however, asserts that monster's the court similarly finds no evidence to support allied's assertions that the co's firm fixed prices for each clin. ar 177. specifically, the solicitation called for offerors states, 10-120c, hr'g tr. 41-42; 54-56, apr. 14, 2010. monster certified that it would not would refuse a refund to the government if it terminates the contract. ar 1024-26. it thus was not obligated to accept. (pl.'s reply 11.) second, allied suggests that avue's msa were to accept the government's position, a procurement official could preclude any review evaluation report based upon the results of its initial review of the offerors' technical 3. doj adequately documented its best value determination. 1045-47. the very purpose of far part 8 is to provide a more simplified and flexible inc. v. united states, 45 fed. cl. 239, 245 (1999) (citing cedars-sinai med. ctr. v. watkins, 1029. the co then noted that monster's quote had omitted pricing for "organization and and conditions. see compl. 12-13 ("derivative of its exception to the rfq's order of allied submitted questions to the co regarding his determination and requested, 966644, at *3 (fed. cl. mar. 10, 2010). the court "must interpret [a contract] as a whole arbitrary and capricious responsibility determination by the contracting officer, the (reissued for publication: july 2, 2010) proposals in conformance with the weighted evaluation scores, including the past the lowest overall cost alternative (considering price, special is beyond debate that allied's alternate payment proposal materially affected its pricing. the the co also contacted allied by e-mail regarding its price quotation. ar 1023. the obligated under allied's proposal to accept the prepayment discount and provided alternate second to the contract awardee and thus had a substantial chance of receiving the award); allied commented that the rfq language "suggests that an offeror runs the risk of a proposal higher technical rating, monster proposed a "far lower overall price." ar 1033. taking into with doj's stated intent to award the bpa based on initial offers without engaging in terms and conditions listed in the draft rfq potentially conflicted with allied's master accept material terms and conditions of the bpa," allied's exceptions to the terms and government's errors, any such differences would have been inconsequential given the support its cost-saving contention. nothing in allied's quotation suggests that whatever cost- ar 229, 238. accepting allied's interpretation that discussions were mandatory conflicts to break down their costs and "show all charges that comprise the firm fixed price," and to 2(e)(1)(4), which states that the ordering activity shall document "[t]he evaluation terms and conditions, and clauses stated in all sections of this rfq." id. additionally, the electronic data systems, the dramatic price difference "is the proverbial elephant in the parlor not accept a revised price quote." id. in response, allied explained that doj was not 3. the co's determination 3. social security numbers its claims: (1) that it was an actual or prospective bidder; and (2) that it possesses "direct quotation as a potential hedge against a possible bid protest action. id. at 31, 33. for the terms as "exceptions," and lacked any discretion to disqualify allied without first engaging thus, "the acid test for deciding whether an agency has engaged in discussions is whether the fact where necessary. bannum, inc., 404 f.3d at 1356. opinion and order1 allied took exceptions to material terms and conditions of the solicitation. ar 1056-57. year price evaluation report ("ber") detailing whether the offers comply with the rfq requirements. fed. cl. 311, 314 n.1 (2009). thus, the court has redacted only allied's and monster's yearly prices and "set forth any assumptions used in the development of its pricing." ar 295. affected adversely in the evaluation or being found unacceptable. the solicitation is divided into four sections, labeled as "documents." "document a" record in a bid protest is whether "a protestor has met its burden of proof that an award is 587; compl. 2. capricious. blackwater, 86 fed. cl. at 506. found that a protestor has standing where the protestor's quotation would be next in line for allied submitted a clin 003 price of $7,000,486 for the anticipated five-year period. ar disparity in price that would accompany it." id. how many training sessions monster would provide under the solicitation. (pl.'s mot. 40- -22- including invoices for payments in advance and data rights. where allied's quotation terms "comments for doj on contractual/legal matters." ar 152. allied noted that some of the merits of allied's and monster's technical quotations. the court further finds nothing report. nevertheless, after the tep members submitted their initial evaluations, the co demonstration evaluations. the co also sent out past performance questionnaires to the the plain language of the contract. united int'l investigative serv. v. united states, 109 f.3d other portions of allied's quotation similarly contradict its position. allied's offer the best value to the government. blackwater, 86 fed. cl. at 514 (citing e.w. bliss co., 77 in discussions. (pl.'s mot. 33-36). allied further contends that the co disqualified its methodology, meaning that avue would support unlimited use by the client organization and quotation was "generally compliant" and thus it found no merit in allied's argument that solicitation stated that doj primarily intended to procure an ars that would support the of a competitive award involving two offerors simply by finding the losing offeror ineligible -17- government had complied with its legal obligations, the plaintiff's price still would have been airlines, inc. v. united states, 264 f.3d 1071, 1085 (fed. cir. 2001). thus, the court may 3- past performance 9.5 9.79 to submit a quote. ar 1037. 2. price evaluation its exceptions was not arbitrary or capricious. the co thus needed no pretext to find allied's information; and (3) look and feel. ar 810, 856. responsible for conducting past performance reference checks, and determining the average screen, the tep would consider whether that function was clearly described and easy to use. entered into and processed through the contractor's information system(s) under this bpa the same for monster, resulting in a nearly incomprehensible public document. -37- this case. no. 09-857c (fed. cl. filed apr. 26, 2010). in that case, the court held that despite in technical ratings); itt fed. serv. corp. v. united states, 45 fed. cl. 174 (1999) (noting to the rfq's terms and conditions, including section 15 which requires invoices to be provide the exact thing called for . . . so that acceptance of the proposal will bind the the rfq contains certain criteria that offerors must meet to be considered for award. ar system has major weaknesses and/or several minor weaknesses that are of am., inc. v. united states, 365 f.3d 1345, 1350-51 (fed. cir. 2004) (quoting advanced that required for success on the merits. see dyonyx, 83 fed. cl. at 465-66, n.2. the government would be obligated to rebid the contract, and [plaintiff] could compete for the identified how the point system relates to the adjectival ratings, but the score sheets failed to denied on january 21, 2010. allied commenced this action on february 23, 2010. quotations that failed to meet the mandatory rfq requirements. it also was to include a the evaluation factors and source selection process included in "document d" of in this case, allied argues that doj's award decision lacked a rational basis and was arbitrary and capricious." blackwater, 86 fed. cl. at 514 (citing banknote corp., 56 fed. parties are requested to minimize their requested redactions so that the court may publish as occurred with monster's job application software. id. at 60-63. according to allied, doj's to allied from doj's technical evaluation. significant weaknesses to allied for failing to discuss certain factors, which allied actually decision must be sufficiently serious to cause prejudice to a protestor in the procurement. see comments on sections of the draft rfq addressing contract line item numbers ("clins"), arbitrary and capricious in doj's determination that allied's quotation only had a slightly like the technical merit factor, each point given for an offeror's live system was "willing to pay a premium for a proposal with a greater technical rating." ar 4. co. v. united states, 77 f.3d 445, 449 (fed. cir. 1996) ("procurement officials have additional questions regarding the content of the solicitation. id. one of monster's the court similarly finds that the co's exchanges with monster concerning its -30- commented upon a provision of the draft rfq requiring offerors to highlight any provisions the tep would consist of the co's technical representative and additional representatives. to seek clarification prior to the closing date for submission of quotations in order to be converted its quotation into a level-of-effort offer; and (3) monster's ars requires use of one, technical merit, provided for ratings of 52-60 (excellent), 43-51 (good), 34-42 pricing, noting that it would be 30 percent higher than the pricing included in its proposal. plan to begin service and to continue month-to-month service, if needed, at the end of the 1- technical merit 51.1 46.2 security numbers in direct conflict with the requirements of the rfq. id. at 30-31. aside the co's disqualification of allied as being pretextual or conducted in bad faith. interest would be affected by the award of the contract or by failure to award the contract." while tep members were to evaluate the offerors' technical quotations, the pep in any event, the administrative record shows that the co drafted an acquisition -14- prejudice requirement for standing is satisfied by a "nominal showing that a protestor `could procurement. ar 177-78. "document b" includes the bpa terms and conditions, the components of doj use this bpa. id. the co then acknowledged allied's technical evaluation, claiming that both were done arbitrarily, thus prejudicing allied's chances for regard. id. thus, contrary to allied's assertion, the tep member identified the security issue ar 860. thus, if a live demonstration received five points under the navigational capability considerably more expensive than the awardee's). the court thus cannot find any prejudice save approximately $3,796,135 for clin 003 if monster were selected as the awardee. id. members how to assign points, how the number or extent of the significant strengths should quotation that "[p]ricing does not include organization and change management, the government was not obligated to engage in discussions with allied. (def.'s mot. 49-54.) 37-48.) as explained below, the court finds that these protest grounds are without merit. precedence clause, the confidentiality of data clause, the government rights in data despite the errors in doj's technical evaluation, allied fails to meet its burden of assign each of the six steps of the system demonstration a score based on the following three the co posed to monster concerning its pricing. id. option year 1 [***] offeror's ability to "understand . . . the government's [114] functional, technical and security avue's system that it otherwise would own under the terms of the rfq. this exception united states, 83 fed. cl. 460, 467-69 (2008). allied's standing to sue particularly is 1334. it is beyond dispute that allied was an actual bidder in this case. indeed, the co * certification, and allied did not state that its product had been audited by an outside auditor id. government could lose rights to property such as position descriptions processed through other personally identifiable information. ar 312. another high priority requirement further guidance on the proper interpretation of clin 0024. after issuing the revised rfq, (satisfactory), 10-13 (poor), and 0-9 (unacceptable). see, e.g., ar 834-35. the score sheets 88 fed. cl. 350, 401 (2009) ("a prejudice determination for the purpose of evaluating government." id. based upon the contents of the ssr report, the co was to prepare a even if these assertions were true, the co still acted reasonably in classifying allied's prepayment and system requirements contained in the draft rfq. monster suggested, for example, that the technical and price quotations to fulfill its requirements for an ars system. ar 177. the fss pricing of between [***] and [***] percent. ar 328. monster filled in clin 0024 as capricious, an abuse of discretion, or otherwise not in accordance with law." banknote corp. pub. l. no. 104-320, 12(a)-(b) (1996), confers upon this court jurisdiction "to render increase of 5,000 employees, an additional 25 trainers would require training. ar 284. * text equivalents for non-text elements, and keyboard accessibility." ar 547. however, requirements, provisions, terms and conditions and clauses to the rfq, and result in scores to give monster higher, or even perfect scores, for three different sub-factors. see ar price" if month-to-month ars services were needed for up to six months following the end only interested parties have standing to protest a contract award in this court. "interested allied suggests that doj conducted a defective best value determination. (pl.'s mot. additional dollars over the five year term of the bpa." ar 1039. the record simply does not p. goodwin, greenberg traurig, llp, washington, d.c., for defendant-intervenor. the following factual recitations are drawn from the administrative record of the procurement.2 represented the cost of various ranges of users. id. for example, clin 002 was for annual -19- 1288 (fed. cir. 2010) (finding no support for plaintiff's argument that the government's c. evaluation factors the pep provides that an evaluation team would comprise of a tep and a business also must show that "there was a substantial chance it would have received the contract award requirements, the tep member's score sheet provides: "neither [allied nor monster] capricious. ellsworth, 45 fed. cl. at 395-96. the court will overturn an agency's action agency action must be supported by the record and "after-the-fact rationalizations should be (pl.'s mot. 48-63.) allied first states that doj failed to develop a common scoring system where agency would have selected argues that the technical scoring is unsupported because the co intervened in the tep's for judgment on the administrative record to determine whether "given all the disputed and applied to the second sub-factor, also worth up to 25 points. see ar 838. because the last monster proposed an externally-hosted ars solution and represented that it was able specifically, allied asserts that its disqualification was pretextual, "only announced as a were not the ultimate basis for the award decision." id. the co issued a memorandum on september 29, 2009 entitled "acquisition under the apa, a reviewing court will set aside the agency action if it is "arbitrary, functional, technical, and service requirements that each offeror was expected to meet. ar exceptions to the section 508 rfq requirement with regard to the "accessibility of forms, 2. doj's best value determination was reasonable. alternate means of achieving similar results or better outcomes. ar 127. additionally, conclude that monster's minor exceptions to section 508 rendered its quotation 3. past performance that the language of the solicitation did not prohibit the procurement official from considering -21- allied reads these rfq provisions to suggest that doj could not render allied's offerors' technical proposals on a point system with adjectival ratings. for example, factor inc. v. christopher, 102 f.3d 1577, 1582 (fed. cir. 1996)). thus, a procurement official's ars services for 5,000-10,000 employees, while clin 0023 was for annual ars service implementation, training, oral/system presentation, and security requirements. id. at 42a - obtaining 22-25 points for the first sub-factor, "understanding of the requirements," equated other offeror considered for the bpa. additionally, if the court finds that both allied and ar 1047. on october 9, 2009, the co responded by e-mail identifying the specific terms 35. for clin 003, monster's price was $3,204,351 for the anticipated five-year period, procurement regulations in a different fashion had the court been in the agency's position." "represents the best value" in a far subpart 8.4 procurement, must include as part of its because the rfq already established that pricing for clin 0024 would be determined based monster suggested that doj incorporate a minimum guaranteed quantity in the clins. ar 78 fed. cl. at 590 (concluding that despite the apparent errors in the plaintiff's technical 56 fed. cl. 174, 176 (2003) (noting that material requirements are not minor informalities). subscription agreement ("msa") used in other government contracts. id. allied * accordingly, the solicitation advised offerors to "submit their most advantageous quote in because monster failed to comply with the rfq requirement prohibiting the use of social in 8.405, the ordering activity has concluded that the order evaluation, the co drafted an internal proposal evaluation plan ("pep") setting forth the defendant filed a motion to dismiss allied's complaint for lack of jurisdiction pursuant to of avue's subscribers and accept the terms and conditions of the intervenor's mot. 48-49; ar 1157-71. b. standard of review in bid protests f.2d 746, 748 (fed. cir. 1998). the plaintiff bears the burden of establishing subject matter doj received comments from three potential offerors, including allied and monster. compared to the strengths. higher than monster justifies paying more than twice as much, resulting in millions of exceptions to rfq; lack of prejudice "payroll/personnel system[,] internal department/component systems, and provide data feeds following a review of the tep's evaluation sheets, the co averaged the tep's ratings panel concerned monster.com, an entity separate and distinct from the awardee of this bpa, demonstration corresponded with an adjectival rating. see, e.g., ar 856. however, the live standing where it can demonstrate that absent the error, it would have had a substantial in the procurement process. myers, 275 f.3d at 1370 ("[p]rejudice (or injury) is a necessary pricing, especially taking into account other language in its quotation. what is more, to the however, allied's protest must fail on the merits. in essence, the agency found to meet all 114 requirements contained in document b of the rfq. ar 515, 518-22, 531- monster that the e-mail was "not a request for a revision" and that "the government w[ould] memorializing his assessment of each offeror's proposal, as provided in the pep. offeror's prices by clin. id. the co noted in his price analysis that the government would in addition to the general eligibility requirements, document d contains the evaluation -35- evaluation process. as previously discussed, tep members used score sheets to evaluate the pep was an internal government document outlining the source selection process sub-factors, with each step worth up to five points: (1) navigational capability; (2) flow of possible outcome may be that the procuring agency will solicit new proposals, or conduct further the rfq's terms and conditions, where allied stated that avue's msa should take applicant social security numbers, in direct conflict with the terms of the rfq. (pl.'s mot. the solicitation also includes 24 separate clins for which offerors were to provide the live system demonstration factor constituted a possible 30 points in the overall applicable to a motion for judgment on the administrative record differs from a motion for is denied, and defendant's and monster's cross-motions for judgment on the in its quotation. solicitation states: compliance with the rfq's requirements. allied requests declaratory and injunctive relief acquisition. ar 42a. while doj invited potential offers to submit comments and potential proposal being found non-responsive. id. allied's complaint for lack of jurisdiction is denied. observed that any conflicting provisions may be considered exceptions or may result in a from . . . its price quote to the government." id. allied argues that both of the minor exceptions to section 508, was not arbitrary or capricious. for 110,001-115,000 employees. ar 254. clin 0024 represented the "monthly transition option year 4 [***] benchmade knife co. v. united states, 79 fed. cl. 731, 735 (2007) (citation omitted). an system reflects a superficial, incomplete or incorrect understanding of technical proposal may have been superior by as many as fourteen points in a properly the court need not determine whether allied has offered a reasonable interpretation upon the following three sub-factors: (1) understanding of the requirements (25 points); obtained an "excellent" rating, while 0-2 points was considered "unacceptable." ar 841. in justifying his determination to award the contract to monster, the co stated that available within twelve months of contract award. ar 184. failure to meet all "high" or that initially would be covered by the system, including 24 system administrators. id. this arbitrary and capricious, and therefore, the court will not disturb it. 0024 because it has no basis to know what clin the government would be using in the lead to exceptions to the rfq's stated terms and conditions."); pl.'s mot. 14-15 (same). see, e.g., ar 834-37; see also ar 856-59. each tep member then gave point scores for price before technical equivalence). the court will not overturn doj's best value under the rfq, offerors could earn a total of 60 points for technical merit based c. evaluation process/basis for award government then would award a bpa "to the offeror whose quote represent[ed] the best satisfactory the system meets the government requirements. the system id. similarly, under the flow of information sub-factor, the tep would evaluate whether the justice ("doj") to intervenor, monster government solutions, llc ("monster") to provide monster to revise its quotation without affording allied the opportunity to do the same. 236. as a preliminary matter, the eligibility requirements provide that "an offeror must $112 million if doj invoiced monthly at the maximum clin level. ar 1026. thus, under technical advantages of the protestor's proposal did not offset the difference in price). -38- 4. price personally identifiable information." ar 312. in its technical proposal, monster stated that standards for decision prices. ar 181, 254. clin 001 consisted of costs to transition from the ars currently used davidson, director, and donald e. kinner, assistant director, united states department of e. doj's technical and past performance evaluation because the co failed to take into account a number of security breaches that allegedly the record and denied monster's similar motion. allied tech. group, inc. v. united states, offset by strengths. highlight any provisions that conflict with the rfq's terms and conditions for doj's review. percent higher than monster's. assigning a higher technical rating to allied's proposal would selected monster. accordingly, allied's motion for judgment on the administrative record being found non-responsive if any terms in an offeror's standard msa or sla are in the notification of award, the evaluation for basis of award document, and by e-mail that considered timely. id. at n.10. option year 4 [***] under section 8, the contractor must agree that upon termination of the contract, it will not technical evaluation and price of the proposals, he concluded that the "slight technical buying. see 48 c.f.r. (far) 8.402 (2009). decided to evaluate the merits of allied's quotation notwithstanding its alleged asked four tep members to provide more detail explaining why they assigned monster a low techs., inc. v. bowers, 283 f. app'x 808, 810 (fed. cir. 2008) (citing siedle v. putnam invs., inc., 147 far 52.227-14 to state that the "government shall have unlimited rights . . . in all computer monster included as "exhibit a" to part 5 of its technical quote the section 508 recompetition. the redactions are indicated in the decision by brackets and three asterisks, [***]. the better approach is to honor the "presumption of public access to judicial records." baystate to provide numerical data for clin 0024. monster confirmed in its proposal that its prices but for [the co's] error." alfa laval separation, inc., 175 f.3d at 1367 (quoting statistica, united states, 10 cl. ct. 17, 26 (1986); see also tel-instruments elec. corp. v. united states, section 12 of the terms and conditions, entitled "governments rights in data produced exception as an example, allied conditioned the government's acceptance of its offer on its own internal plan did not render its evaluation of the non-price factors arbitrary and rationally in not disqualifying monster's quotation on this basis. standing is a `limited review' that seeks `minimum requisite evidence necessary for plaintiff 592-96. thus, allied's pricing for the initial 15,000 employees expected to use the ars analytical & research tech., inc. v. united states, 39 fed. cl. 34, 54 n.19 (1997) (finding quotation unacceptable unless and until it held discussions. (pl.'s mot. 30-35.) reading the capricious, or pretextual. moreover, allied's claims deal with the "timing of various steps allied's technical proposal slightly more favorable than monster's, but a whopping price shall take precedence." id. the language of this section is identical to the "invoices" determination. (pl.'s mot. 81.) to support its contention, allied cites to far 8.405- ." e.w. bliss co., 77 f.3d at 448 (citation omitted); see also mantech telecomm. & info. received two quotations. id. averaging the ratings from the tep evaluation and allied's clin 003 pricing with some of the solicitation's terms and conditions have become points of contention in frederick w. claybrook, with whom were gunjan r. talati, james g. peyster, and lindsay each point given per sub-factor corresponded with an adjectival rating of excellent, inc. v. united states, 275 f.3d 1366, 1369-70 (fed. cir. 2002). under 28 u.s.c. 1491(b), great lakes dredge & dock co., 60 fed. cl. at 359. where the contract is awarded on a see data gen. corp., 78 f.3d at 1563-64 (holding that a protestor could not show prejudice amounted to "a small technical advantage for allied/avue, . . . mak[ing] the pricing 1380. only when an unsuccessful bidder can show that the government's error caused it to it. suggestions on any aspect of the rfq, doj specifically stated that it was looking for at 33-34. allied also alleges that the co conducted a defective best value tradeoff analysis b. doj's formal rfq -13- the solicitation, incorporated by reference, or made known to the offerors until after final the court proposed redactions to this opinion, if any, before it is released for publication. the included in allied's quotations, the co reasonably determined that the exceptions total $3,204,351 a simplified process for obtaining commercial supplies and services at prices associated with volume -25- in this case, the court finds no merit to allied's argument that the co engaged in do more than merely demonstrate an error on the part of the government. see labatt food judge monster's quotation was revised in a material way. see career training concepts, inc., 83 tension with, if not contradicted by, various aspects of that record." id. legal arguments for according to the pep, the first step in the source selection process was for tep rfq's terms and conditions. the first of these exceptions concerned sections 8 and 12 of 11 f.3d 1573, 1583 (fed. cir. 1993)). if the court finds that it lacks subject matter after revising the draft rfq to incorporate some of the suggestions it received, doj federal circuit has made clear that the focus of a standing inquiry is whether an actual or agency's decision to declare one proposal acceptable and another unacceptable. if the court of the rehabilitation act of 1973, 29 u.s.c. 794(d). ar 190. section 508 of the and not allied, allied would be next in line to receive the award because it was the only or procedure. impresa, 238 f.3d at 1333. of an "effective user-friendly web-based application" for approximately 11,000 employees the solicitation sought an ars with "innovation and expanded/enhanced system assessments for all offerors, including the strengths, weaknesses, and risks of each offeror select a lower-priced, lower-technically-rated proposal if it decides that the cost premium option year 4 [***] selection of monster was arbitrary or capricious, even if the court itself might have left the adjectival ratings for the technical merit sub-factors undefined. id. lacking a 2. monster's train-the-trainer pricing 1. the section 508 requirements 1039. the co's source selection decision similarly notes that while allied received a slightly quotation states: stated in the offerors' quotations to determine the differences. see ar 1017-21. the administrative record are granted. losing offeror. applicable case law precludes such a result. impresa construzioni geom. 238. thus, where [doj] determines that "the technical capabilities of two or more offerors the pep, indicating that the co failed to consider all aspects in conducting his best value from monster's proposal, particularly in failing to disqualify monster for similar non- e.w. bliss co., 77 f.3d at 449. in other words, "[m]ere disagreement with an agency's calls for the tep members to draft an evaluation report representing their consensus findings, explanation of any proposals that failed to meet the mandatory rfq requirements and were -20- of the base price, special features, and administrative costs, among other considerations. see pertains to training doj employees on how to use the ars. for example, under the court notes that while far subpart 8.4 governs the solicitation, doj also (pl.'s mot. 61-63.) allied specifically points to three security breaches concerning monster's in it and merits some mention." ar 1001. both offerors received a negative mark in this chance of winning the award. allied fails to point to anything in the administrative record to 42a. in basic terms, an ars is a system that allows the electronic creation of position protest at the government accountability office ("gao") on october 15, 2009, which was and failed to document his evaluation and tradeoff decision adequately. id. at 34-36. allied summary detailing the price difference between allied's and monster's proposals. ar 1038. government to select the quote with the lowest evaluated price where the technical system shall use unique employee identifiers in lieu of social security numbers or other included in its offer. see, e.g., ar 854, 610, 734. some evaluators also marked both -8- finds that allied has the necessary standing to proceed with its protest. the court will option year 3 [***] the solicitation informed offerors that total evaluated price would be the deciding factor. ar inconsistency between the provisions of the bpa and any order issued hereunder or any system was as follows: incorporated certain procedures found in far part 15, including best value determinations quote unacceptable due to the exceptions it took to material terms and conditions of the rfq, automated system identified by one member of the tep. ar 999. as previously discussed, features for which allied was not similarly credited. in sub-factor three, one evaluator gave and * considered all relevant factors and articulated a rational connection between the facts found on one-twelfth the annual cost of the clin being utilized by doj. ar 1054. indeed, as the estimation that it initially would require 50 trainers. id. at 41-42. allied, once again, is off 1332. an agency's decision is considered arbitrary and capricious if "the agency has not allied/avue's quote being unacceptable from a business standpoint." ar 1037. in contrast, regulation ("far") subpart 8.4 and only those companies with existing listings for ars3 represented a refusal by allied to accept material terms of the rfq, and therefore, allied's challenges the issuance of a blanket purchase agreement ("bpa") by the department of will substantially benefit the government. there are no major 77 f.3d at 449. it appears that evaluators credited monster with "significant strengths" for ars system rights to offerors. manson constr. co., 79 fed. cl. at 19. thus, doj's failure to follow its v. fitzgerald, 457 u.s. 800, 814-15 (1982)); reynolds v. army & air force exch. serv., 846 compete for the contract.'" id. (quoting myers, 275 f.3d at 1370); see also textron, inc. v. agency errors in evaluation process; and convincing evidence allegations of pretext or bad faith. galen med. assoc., inc., 369 government reject allied's invoice exception, allied would impose a steep premium, and expunge/delete services simply were clarifications. in response to the co's inquiry the first sub-factor corresponded to an "unacceptable" rating. id. the same point range question of standing). that is, allied must show that "but for the error, it would have had "the most pertinent information" and allowed for "an intuitive understanding" of how to notified vendors of the risks of taking exceptions to the rfq terms and conditions, * good, satisfactory, poor, or unacceptable. see, e.g., ar 835, 838, 841. for example, (fed. cir. 1985). applying the general rules of contract construction, the court begins with 9.79 out of 10, and allied received a rating of 9.5. ar 1015, 1038. allied argues that the co conducted an improper best value determination by failing f.3d 1375, 1378 (fed. cir. 2009). however, not every error necessarily is harmful. id. at performance under this contested award. id. at 37. the case is before the court for decision will be harmed by disclosure of the proposal or agency evaluation data in this decision. many of allied's the government intends to make an award on the basis of initial (filed under seal: may 28, 2010) exceptions to material terms and conditions of the solicitation, he "deemed allied/avue's allied's emphasis on this single phrase ignores the remainder of the rfq. contrary to under the regulation, "discussions" involve "negotiations" and "are undertaken with the intent offerors' listed references. ar 814-25; see also ar 1038. since doj had ample experience quotations. ar 18. the pep provides that the report should contain "[c]omplete narrative serv., inc., 577 f.3d at 1380; galen med. assoc., inc., 369 f.3d at 1330 ("`[t]o prevail in a 209-25, 236. each of the 114 requirements was marked as "high," "medium," or "low" doj solicited four sources to submit quotations for an ars: monster, allied/avue, g. allied is not entitled to a permanent injunction. its employees as well as external users such as applicants. ar 587. thus, avue would not and reflected it in her score of monster and allied to the extent she felt appropriate. since reply 29-35, 40-41. allied also contends that doj's past performance evaluation was flawed increased if the tep had performed its duties properly. (pl.'s mot. 73.) indeed, allied's requirements." ar 231. specifically, the solicitation required offerors to demonstrate that regulation in connection with a procurement or a proposed procurement." 28 u.s.c. finally, section 13 states that the contractor is obligated to comply with section 508 rfq in its entirety, the court cannot agree. the rfq, on at least two occasions, advised the same opportunity. (pl.'s mot. 66-70.) allied specifically takes issue with two questions economic interest." dyonyx, 83 fed. cl. at 465 (citing rex serv. corp. v. united states, 448 micheal n. o'connell, with whom were tony west, assistant attorney general, jeanne e. evaluators found monster's quotation to be superior by a large margin. see ar 834-999. solicitation adequately notified offerors of the risks of taking exceptions, including being government's best interests to do so. proposal. even though price was the least important evaluation criterion, the agency could saving mechanism its ars product offered would have offset the $100 million price allied also takes issue with the tep's failure to create a consensus report as required was to prepare an overall assessment for each technical evaluation factor and assign a rating inc., 404 f.3d at 1355-56). in other words, the inquiry in a review of the administrative properties, inc., b-250392, 93-1 cpd 73, at 5 n.2, 1993 wl 25123, at *4 (comp. gen. jan. guaranteed discussions to "resolve" unacceptable terms and conditions. rather, the ars site presented a "common sense sequence of information to complete tasks" and ("co") disqualified allied from the competition based upon six exceptions that allied took johnson, 78 f.3d 1556, 1564 (fed. cir. 1996) ("we know of no principle or precedent . . . handling of a procurement matter falls short of meeting the burden of proving that the process major strengths and/or several minor strengths which will benefit the emphasizes that the co would do so only when it is was in the government's best interest. finds that allied had a "substantial chance" of receiving the award, and thus has standing. notification and basis of award, the co noted that if doj used the bpa at its maximum comments to the co regarding avue's past performance. ar 1038. references for both


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