Judges: Lydia Kay Griggsby
Filed: Apr. 13, 2018
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims Bid Protest No. 17-2047C Filed Under Seal: March 12, 2018 Reissued For Publication: April 13, 2018* ) PINNACLE SOLUTIONS, INC., ) ) Plaintiff, ) ) Post-Award Bid Protest; Judgment Upon v. ) the Administrative Record; RCFC 52.1; ) Injunctive Relief; Supplementing the THE UNITED STATES, ) Administrative Record. ) Defendant, ) ) v. ) ) YULISTA TACTICAL SERVICES, LLC, ) ) Defendant-Intervenor. ) ) Aron C. Beezley, Counsel of Record, Lisa A. Markman, Of Co
Summary: In the United States Court of Federal Claims Bid Protest No. 17-2047C Filed Under Seal: March 12, 2018 Reissued For Publication: April 13, 2018* ) PINNACLE SOLUTIONS, INC., ) ) Plaintiff, ) ) Post-Award Bid Protest; Judgment Upon v. ) the Administrative Record; RCFC 52.1; ) Injunctive Relief; Supplementing the THE UNITED STATES, ) Administrative Record. ) Defendant, ) ) v. ) ) YULISTA TACTICAL SERVICES, LLC, ) ) Defendant-Intervenor. ) ) Aron C. Beezley, Counsel of Record, Lisa A. Markman, Of Cou..
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In the United States Court of Federal Claims
Bid Protest
No. 17-2047C
Filed Under Seal: March 12, 2018
Reissued For Publication: April 13, 2018*
)
PINNACLE SOLUTIONS, INC., )
)
Plaintiff, )
) Post-Award Bid Protest; Judgment Upon
v. ) the Administrative Record; RCFC 52.1;
) Injunctive Relief; Supplementing the
THE UNITED STATES, ) Administrative Record.
)
Defendant, )
)
v. )
)
YULISTA TACTICAL SERVICES, LLC, )
)
Defendant-Intervenor. )
)
Aron C. Beezley, Counsel of Record, Lisa A. Markman, Of Counsel, Sarah S. Osborne,
Of Counsel, Bradley Arant Boult Cummings, Washington, DC, for plaintiff.
Jeffrey D. Klingman, Trial Attorney, Elizabeth M. Hosford, Assistant Director, Robert E.
Kirschman, Jr., Director, Chad A. Readler, Acting Assistant Attorney General, United States
Department of Justice, Washington, DC, Karen M. Reilley, Office of General Counsel, NASA
Headquarters, Washington, DC, for defendant.
S. Lane Tucker, Counsel of Record, Stoel Rives LLP, Anchorage, AK, for defendant–
intervenor.
*
This Memorandum Opinion and Order was originally filed under seal on March 12, 2018 (docket entry
no. 53). The parties were given an opportunity to advise the Court of their views with respect to what
information, if any, should be redacted from the Memorandum Opinion and Order. The parties filed a
joint status report on April 12, 2018 (docket entry no. 55) proposing certain redactions which the Court
has adopted. And so, the Court is reissuing its Memorandum Opinion and Order dated March 12, 2018,
with the agreed upon redactions indicated by three consecutive asterisks within brackets ([***]).
1
MEMORANDUM OPINION AND ORDER
GRIGGSBY, Judge
I. INTRODUCTION
In this post-award bid protest matter, Pinnacle Solutions, Inc. (“Pinnacle”) challenges the
National Aeronautics and Space Administration’s (“NASA”) decision to award a contract for
aircraft logistics, integration, configuration management, and engineering services (the “ALICE
Contract”) to Yulista Tactical Services, LLC (“Yulista”). As relief, Pinnacle requests that the
Court: (1) set aside NASA’s award decision; (2) require NASA to include Pinnacle’s proposal
for the ALICE Contract in the competitive range; and (3) enjoin NASA from proceeding with the
transition and performance under the ALICE Contract. Am. Compl. at 2.
The parties have filed cross-motions for judgment upon the administrative record,
pursuant to Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”). See
generally Pl. Mot.; Def. Mot.; Def.-Int. Mot. Pinnacle has also filed motions for preliminary and
permanent injunctive relief and declaratory relief, and a motion to strike. See generally Pl. Mot.
for Prelim. Inj.; Pl. Mot.; Pl. Mot. to Strike. For the reasons set forth below, the Court: (1)
DENIES Pinnacle’s motions for judgment upon the administrative record, preliminary and
permanent injunctive relief, and declaratory relief; (2) GRANTS the government’s and Yulista’s
cross-motions for judgment upon the administrative record; (3) GRANTS-IN-PART and
DENIES-IN-PART Pinnacle’s motion to strike; and (4) DISMISSES the complaint.
II. PROCEDURAL AND FACTUAL BACKGROUND1
A. Factual Background
In this post-award bid protest matter, Pinnacle challenges NASA’s decision to award a
contract for aircraft logistics, integration, configuration management, and engineering services to
Yulista, pursuant to Request for Proposal No. NNJ16556087R (the “RFP”). See AR Tab 22 at
5597. Specifically, Pinnacle challenges NASA’s evaluation process for the award of the ALICE
Contract and, in particular, the agency’s decision to exclude Pinnacle’s proposal from the
1
The facts recited in this Memorandum Opinion and Order are taken from the administrative record as
amended (“AR”); plaintiff’s Amended Complaint (“Am. Compl.”); and the government’s motion for
judgment upon the administrative record (“Def. Mot.”). Except where otherwise noted, all facts recited
herein are undisputed.
2
competitive range for this contract. See generally Am. Compl. As relief, Pinnacle seeks to: (1)
set aside NASA’s award decision; (2) require NASA to include Pinnacle’s proposal for the
ALICE Contract in the competitive range; and (3) enjoin NASA from proceeding with the
transition and performance under the ALICE Contract. Id. at 2.
1. The ALICE Contract And The RFP
The key facts in this bid protest matter are undisputed. The ALICE Contract involves a
competitive procurement to provide aircraft logistics, integration, configuration management,
and engineering services at several bases affiliated with NASA’s Johnson Space Center. AR Tab
22 at 5597. The contract is a single fixed-price, cost-plus-award-fee, and cost-plus-fixed-fee
indefinite-delivery/indefinite-quantity contract. Id.
On August 19, 2016, NASA issued the RFP for the ALICE Contract.
Id. Under the
terms of the RFP, NASA sought proposals to provide ALICE services for a two-month phase-in
period—followed by a 16-month base period and two two-year option periods.
Id.
The RFP requires that NASA evaluate responsive proposals under three factors: (1)
mission suitability; (2) past performance; and (3) cost/price. AR Tab 23 at 8654. This
evaluation is to be based upon a best value to the government determination.
Id. In this regard,
the RFP provides that the mission suitability and past performance factors are approximately
equal in importance, and that each of these two factors is more important than the cost/price
factor.
Id. The RFP also provides that the mission suitability factor, consists of three subfactors:
management approach; technical approach; and safety and health approach.
Id. at 8654-56.
In addition, the RFP identifies three elements related to the management approach
subfactor: overall management approach; staffing approach; and contract phase-in approach.
AR Tab 22 at 6113. The RFP also identifies three elements related to the technical approach
subfactor: technical understanding of requirements; resources; and basis of estimate. Id. at
6114.
Lastly, the source selection plan for the RFP provides for the assignment of adjectival
ratings under each of the mission suitability subfactors—management approach; technical
approach; and safety and health approach—consistent with Section 1815.305(a)(3)(A) of the
NASA Federal Acquisition Regulation Supplement. AR Tab 2 at 37; see also AR Tab 22 at
3
6146. These ratings are as follows: excellent (91-100 percent of points); very good (71-90
percent); good (51-70 percent); fair (31-50 percent); and poor (0-30 percent). AR Tab 2 at 38.
2. NASA’s Initial Evaluation And Pinnacle’s First GAO Protest
On October 13, 2016, NASA received responsive proposals from three offerors—
Pinnacle, Yulista, and Arctic Slope Technical Services, Inc. (“Arctic Slope”). AR Tab 24 at
8904; AR Tab 36 at 10422; AR Tab 37 at 11204. NASA evaluated each of these proposal under
the mission suitability factor, management approach subfactor “for overall demonstrated
comprehensive understanding, effectiveness, efficiency, and feasibility.” AR Tab 23 at 8655.
NASA also evaluated the management plans submitted by each offeror, which were to address,
among other things, relationships with subcontractors, corporate philosophy, and management
approach, and how the offeror would manage its workforce “to ensure adherence to work
schedules and break times while supporting dynamic flight schedules.” AR Tab 22 at 5847.
In addition, NASA evaluated the labor-relations plans submitted by each offeror, which
were required to, among other things, describe the organized-labor plan for the ALICE Contract,
include a list of specific positions falling under each collective bargaining agreement, and
describe how the offeror intended to promote and maintain harmonious labor-relations during
contract performance. Id. at 5877. NASA also evaluated total-compensation plans for each
offeror, which were required to, among other things “identify and discuss wages, salaries, and
fringe benefits for professional employees and non-exempt service employees,” provide the
offeror’s company salary range/wage information, and provide written support to demonstrate
that the proposed compensation was reasonable.
Id. at 5889-90; Tab 23 at 8609.
Based upon this information, NASA evaluated each proposal to identify “significant
strengths,” “strengths,” “weaknesses,” and “significant weaknesses.” AR Tab 3 at 66, Tab 23 at
8654. In addition, NASA assigned a confidence rating for each proposal based upon recent and
relevant past performance, pursuant to the requirements of the RFP. AR Tab 23 at 8656-57. The
results of NASA’s initial evaluation of the three responsive proposals are set forth below:
4
NASA’s Initial Evaluation: December 14, 2016
Factor and Subfactor Yulista Pinnacle Arctic Slope
Mission Suitability 719 439 354
Management Approach Very Good: 518 Fair: 266 Poor: 189
Technical Approach Good: 102 Fair: 68 Fair: 60
Safety & Health Approach Good: 99 Good: 105 Good: 105
Past Performance Level of Confidence Moderate Moderate Low
Cost/Price (in millions) $190.2 $180.6 $171.7
AR Tab 45 at 12030, 12032.
Based upon NASA’s initial evaluation of responsive proposals, the agency assigned
Pinnacle’s proposal: (1) no significant strengths; three strengths; eight weaknesses; and one
significant weakness with respect to the mission suitability factor, management approach
subfactor; (2) two weaknesses under the mission suitability factor, technical-approach subfactor;
and (3) one strength and one weakness under the mission suitability factor, safety and health
subfactor. See generally AR Tab 10. NASA also found that Pinnacle’s proposal warranted a
“moderate confidence” rating under the past performance factor. AR Tab 13 at 4987. But, the
contracting officer concluded that Pinnacle’s proposal was “not one of the most highly rated
proposals.” AR Tab 46 at 12130. And so, NASA established a competitive range for the ALICE
Contract comprised of only Yulista’s proposal.2 Id.
Pinnacle, subsequently filed a protest of the contracting officer’s decision to exclude its
proposal from the competitive range before the United States Government Accountability Office
(the “GAO”) for reasons not germane to this bid protest dispute. AR Tab 19 at 5512; see
generally Tab 14. On May 19, 2017, the GAO sustained Pinnacle’s protest and recommended
that NASA reevaluate Pinnacle’s proposal. AR Tab 19 at 5524.
2
NASA concluded that, although Pinnacle’s past performance rating was as high as Yulista’s—and
Pinnacle’s probable cost was somewhat lower than Yulista’s—Pinnacle’s substantially-lower mission
suitability score warranted the exclusion of Pinnacle’s proposal from the competitive range. AR Tab 46
at 12130.
5
3. NASA’s Reevaluation And Pinnacle’s Second GAO Protest
After the GAO sustained Pinnacle’s protest, NASA conducted a reevaluation of all three
of the original responsive proposals that the agency received in connection with the RFP. See
AR Tab 21 at 5546. NASA appointed a new contracting officer and the contracting officer
reconvened NASA’s Source Evaluation Board to reevaluate each proposal. AR Tab 44 at 12006.
During NASA’s reevaluation of Pinnacle’s proposal, the agency assigned Pinnacle’s
proposal three strengths; one significant weakness; and nine weaknesses with respect to the
mission suitability factor, management approach subfactor. AR Tab 28 at 9334-65; see also AR
Tab 21a at 5596.21-.27. NASA also assigned two weaknesses under the mission suitability
factor, technical approach subfactor. AR Tab 28 at 9366-70. Lastly, NASA assigned one
strength and one weakness under the mission suitability factor, safety and health subfactor for
Pinnacle’s proposal. Id. at 9371-75. Based upon these findings, NASA awarded Pinnacle’s
proposal a rating of 467 points out of a possible 1000 for the mission suitability subfactor.3 AR
Tab 48 at 12249.
During NASA’s reevaluation of Pinnacle’s proposal with respect to the past performance
factor, NASA obtained and considered two updated contractor performance assessment reports
(“CPARS”) for work that Pinnacle performed on other contracts—the AMOC contract and the
KC-10 ATS contract. AR Tab 44 at 12006; see also AR Tab 21a at 5596.5, 5596.11. NASA
rated Pinnacle’s past performance as “moderate confidence” in an internal competitive range
presentation dated August 9, 2017. AR Tab 47 at 12132, 12214. Thereafter, on August 11,
2017, a CPARS for Pinnacle’s work on another contract—the FRPP&C contract—became
available to NASA. AR Tab 32 at 10325. Because NASA found that this contract was not
relevant to the ALICE Contract, NASA did not consider this report. AR Tab 35 at 10374.
Lastly, NASA’s reevaluation found the probable cost for Pinnacle’s proposal to be $180.6
million. AR Tab 46 at 12129-30.
During the reevaluation process for Yulista’s proposal, NASA assigned three significant
strengths, two strengths, eight weaknesses, and no significant weaknesses with respect to the
3
The weaknesses assigned by NASA during the reevaluation of Pinnacle’s proposal differ from those
assigned during the initial evaluation. Compare AR Tab 28 at 9340-75, with AR Tab 13 at 4975-80.
6
mission suitability factor. AR Tab 36 at 11099-126. Based upon these findings, NASA awarded
Yulista’s proposal a rating of 785 points out of a possible 1000 under the mission suitability
subfactor. AR Tab 48 at 12249. NASA also rated Yulista’s proposal under the past performance
factor as “moderate confidence.” AR Tab 36 at 11127. In addition, NASA found the probable
cost of Yulista’s proposal to be $190.2 million. AR Tab 46 at 12129-30. The results of
NASA’s reevaluation are set forth below:
NASA’s Reevaluation: August 9, 2017
Factor and Subfactor Yulista Pinnacle Arctic Slope
Mission Suitability 785 467 426
Management Approach Very Good: 581 Good: 294 Good: 231
Technical Approach Good: 105 Fair: 68 Good: 60
Safety & Health Approach Good: 99 Fair: 105 Very Good: 135
Past Performance Level of Confidence Moderate Moderate Low
Cost/Price (in millions) $190.2 $180.6 $171.7
AR Tab 48 at 12249; see also AR Tab 47 at 12149-51 (including scoring and adjectival ratings
for the mission suitability subfactors).
On August 17, 2018, NASA’s Source Evaluation Board determined that only Yulista’s
proposal warranted inclusion in the competitive range for the ALICE Contract. AR Tab 48 at
12252. And so, on August 18, 2017, NASA informed Pinnacle that Pinnacle would be excluded
from the competitive range based upon the agency’s reevaluation. AR Tab 44 at 1207.
Pinnacle, subsequently, filed a second protest with the GAO challenging NASA’s
decision. Id.; see generally AR Tab 32. The GAO dismissed Pinnacle’s protest upon the ground
that the protest lacked merit on December 11, 2017. AR Tab 44 at 12008.
Pinnacle commenced this action on December 27, 2017. See generally Compl.
B. Procedural Background
On December 27, 2017, Pinnacle filed the complaint in this bid protest matter and a
motion for a preliminary injunction. See generally id.; Pl. Mot. Prelim. Inj. On January 2, 2018,
Yulista filed an unopposed motion to intervene, which the Court granted on January 2, 2018.
7
See generally Mot. to Intervene; Order, dated Jan. 2, 2018. On January 2, 2018, the Court
entered a Protective Order in this matter. See generally Protective Order.
On January 19, 2018, the government filed the administrative record. On January 24,
2018, Pinnacle filed an amended complaint. See generally Am. Compl. On January 24, 2018,
Pinnacle filed motions for judgement upon the administrative record, permanent injunctive relief,
and declaratory relief. See generally Pl. Mot.
On February 7, 2018, the government and Yulista filed their respective cross-motions for
judgment upon the administrative record and responses and oppositions to Pinnacle’s motions for
preliminary and permanent injunctive relief, declaratory relief, and judgment upon the
administrative record. See generally Def. Mot.; Def.-Int. Mot. On February 12, 2018, the
government filed an amended administrative record. See generally AR.
On February 12, 2018, Pinnacle filed a response and opposition to the government’s and
Yulista’s respective cross-motions for judgment upon the administrative record, and a reply in
support of its motions for judgment upon the administrative record and for injunctive and
declaratory relief. See generally Pl. Mot. On February 14, 2018, Pinnacle filed a motion to
strike the declarations of Brian Kelly, Perry Lamar Mueller, and Alice Pursell, which have been
filed in support of the government’s cross-motion for judgment upon the administrative record.
See generally Pl. Mot. to Strike.
On February 20, 2018, the government and Yulista filed their respective reply briefs in
support of their cross-motions for judgment upon the administrative record. See generally Def.
Reply; Def.-Int. Reply. On February 26, 2018, the government filed a response and opposition
to Pinnacle’s motion to strike. See generally Def. Resp. to Mot. to Strike. On February 28,
2018, Pinnacle filed a reply in support of its motion to strike. See generally Pl. Reply to Mot. to
Strike.
On February 28, 2018, the Court held oral argument on the parties’ motions. These
matters having been fully briefed, the Court resolves the pending motions.
8
III. LEGAL STANDARDS
A. Bid Protest Jurisdiction
The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid
protests brought by “an interested party objecting to a solicitation by a Federal agency for bids or
proposals for a proposed contract or to a proposed award or the award of a contract or any
alleged violation of statute or regulation in connection with a procurement or a proposed
procurement.” 28 U.S.C. § 1491(b)(1). This Court reviews agency actions in bid protest matters
under the Administrative Procedure Act’s (“APA”) “arbitrary and capricious” standard. See id. §
1491(b)(4) (adopting the standard of review set forth in the Administrative Procedure Act). And
so, under the APA’s standard, an award may be set aside if: “‘(1) the procurement official’s
decision lacked a rational basis; or (2) the procurement procedure involved a violation of
regulation or procedure.’” Banknote Corp. of Am., Inc. v. United States,
365 F.3d 1345, 1351
(Fed. Cir. 2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States,
238
F.3d 1324, 1332 (Fed. Cir. 2001)).
In this regard, the Federal Circuit has explained that:
When a challenge is brought on the first ground, the test is whether the contracting
agency provided a coherent and reasonable explanation of its exercise of discretion,
and the disappointed bidder bears a heavy burden of showing that the award
decision had no rational basis. When a challenge is brought on the second ground,
the disappointed bidder must show a clear and prejudicial violation of applicable
statutes or regulations.
Id. at 1351 (internal citations omitted). When reviewing an agency’s procurement decision, the
Court also recognizes that the agency’s decision is entitled to a “presumption of regularity.”
Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 415 (1971), abrogated on other
grounds by Califano v. Sanders,
430 U.S. 99 (1977) (citations omitted). In addition, the Court
should not substitute its judgment for that of the agency. Cincom Sys., Inc. v. United States,
37
Fed. Cl. 663, 672 (1997). And so, “‘[t]he protestor must show, by a preponderance of the
evidence, that the agency’s actions were either without a reasonable basis or in violation of
applicable procurement law.’” Gentex Corp. v. United States,
58 Fed. Cl. 634, 648 (2003)
(quoting Info. Tech. & Applications Corp. v. United States,
51 Fed. Cl. 340, 346 (2001), aff’d,
316 F.3d 1312 (Fed. Cir. 2003)).
9
This standard “is highly deferential.” Advanced Data Concepts, Inc. v. United States,
216 F.3d 1054, 1058 (Fed. Cir. 2000). As long as there is “a reasonable basis for the agency’s
action, the court should stay its hand even though it might, as an original proposition, have
reached a different conclusion . . . .” Honeywell, Inc. v. United States,
870 F.2d 644, 648 (Fed.
Cir. 1989) (citation omitted). But, if “the agency entirely fail[s] to consider an important aspect
of the problem [or] offer[s] an explanation for its decision that runs counter to the evidence
before the agency,” then the resulting action lacks a rational basis and, therefore, is defined as
“arbitrary and capricious.” Ala. Aircraft Indus., Inc.-Birmingham v. United States,
586 F.3d
1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
Co.,
463 U.S. 29, 43 (1983)) (internal quotation marks omitted).
B. Best Value Determinations
This Court affords contracting officers a great deal of discretion in making contract
award decisions, particularly when the contract is to be awarded to the offeror that will provide
the best value to the government. See TRW, Inc. v. Unisys Corp., 98 F.3d 1325, 1327-28 (Fed.
Cir. 1996); E.W. Bliss Co. v. United States,
77 F.3d 445, 449 (Fed. Cir. 1996); Lockheed Missiles
& Space Co. v. Bentsen,
4 F.3d 955, 958–59 (Fed. Cir. 1993). Banknote Corp. of Am. v. United
States,
365 F.3d 1345, 1355-56 (Fed. Cir. 2004). The Court has held that the government’s best
value determination should not be disturbed, if the government documents its analysis and
includes a rationale for any business judgments and trade-offs made in reaching that decision.
See Blackwater Lodge & Training Center, v. United States,
86 Fed. Cl. 488, 514 (2009). And
so, a decision to award a contract is least vulnerable to challenge when that decision is based
upon a best value determination. PlanetSpace, Inc. v. United Sates,
96 Fed. Cl. 119, 125 (2010).
The Federal Circuit has also recognized that contracting officers have broad discretion in
determining the competitive range. Birch & Davis Int’l v. Christopher, 4 F.3d 970, 973 (Fed.
Cir. 1993). To that end, this Court has upheld competitive range decisions that involve only one
offeror. See, e.g., Int’l Outsourcing Servs. LLC v. United Sates,
69 Fed. Cl. 40, 51, n.12 (2005);
CEdge Software Consultants LLC v. United States,
117 Fed. Cl. 419, 436 (2012).
10
C. Judgement Upon The Administrative Record
Generally, RCFC 52.1 limits this Court’s review of an agency’s procurement decision to
the administrative record. RCFC 52.1; see Axiom Res. Mgmt., Inc. v. United States, 564 F.3d
1374, 1379 (Fed. Cir. 2009) (“[T]he focal point for judicial review should be the administrative
record already in existence.”). And so, unlike a summary judgment motion brought pursuant to
Rule 56, “the existence of genuine issues of material fact does not preclude judgment upon the
administrative record” under Rule 52.1. Tech. Sys., Inc. v. United States,
98 Fed. Cl. 228, 242
(2011) (citations omitted); RCFC 56. Rather, the Court’s inquiry is whether, “given all the
disputed and undisputed facts, a party has met its burden of proof based on the evidence in the
record.” A&D Fire Prot., Inc. v. United States,
72 Fed. Cl. 126, 131 (2006).
D. Injunctive Relief
Under its bid protest jurisdiction, the Court “may award any relief [it] considers proper,
including declaratory and injunctive relief . . . .” 28 U.S.C. § 1491(b)(2); see also Centech Grp.,
Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009). In deciding whether to issue a
permanent injunction, the Court “considers: (1) whether . . . the plaintiff has succeeded upon the
merits of the case; (2) whether the plaintiff will suffer irreparable harm if the court withholds
injunctive relief; (3) whether the balance of hardships to the respective parties favors the grant of
injunctive relief; and (4) whether it is in the public interest to grant injunctive relief.” PGBA,
LLC v. United States,
389 F.3d 1219, 1228-29 (Fed. Cir. 2004) (citing Amoco Prod. Co. v. Vill.
of Gambell, Alaska,
480 U.S. 531, 546 n.12 (1987) (“The standard for a preliminary injunction is
essentially the same as for a permanent injunction with the exception that the plaintiff must show
a likelihood of success on the merits rather than actual success.”)); see also Centech Grp.,
Inc.,
554 F.3d at 1037.
In this regard, the Federal Circuit has held that:
No one factor, taken individually, is necessarily dispositive. If a preliminary
injunction is granted by the trial court, the weakness of the showing regarding one
factor may be overborne by the strength of the others. If the injunction is denied,
the absence of an adequate showing with regard to any one factor may be sufficient,
given the weight or lack of it assigned the other factors, to justify the denial.
FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (citations omitted). This Court has
also found success upon the merits to be “the most important factor for a court to consider when
11
deciding whether to issue injunctive relief.” Dellew Corp. v. United States, 108 Fed. Cl. 357,
369 (2012) (citing Blue & Gold Fleet, L.P. v. United States,
492 F.3d 1308, 1312 (Fed. Cir.
2007)). But, while success upon the merits is necessary, it is not sufficient alone for a plaintiff to
establish that it is entitled to injunctive relief. See Contracting, Consulting, Eng’g LLC v. United
States,
104 Fed. Cl. 334, 353 (2012) (“Although plaintiff’s entitlement to injunctive relief
depends on its succeeding on the merits, it is not determinative because the three equitable
factors must be considered, as well.”) (citations omitted)). In addition, a plaintiff who cannot
demonstrate actual success upon the merits cannot prevail upon a motion for permanent
injunctive relief. See Nat’l Steel Car, Ltd. v. Canadian Pacific Ry., Ltd.,
357 F.3d 1319, 1325
(Fed. Cir. 2004) (finding that a plaintiff who cannot demonstrate likely success upon the merits
cannot prevail upon its motion for preliminary injunctive relief).
E. Supplementing The Administrative Record
The United States Court of Appeals for the Federal Circuit held in Axiom Resource
Management that the “parties’ ability to supplement the administrative record is limited,” and
that the administrative record should only be supplemented “if the existing record is insufficient
to permit meaningful review consistent with the APA.” Axiom, 564 F.3d at 1379-81; see also
Caddell Constr. Co., Inc. v. United States,
111 Fed. Cl. 49, 93 (2013). The Supreme Court has
also held in Camp v. Pitts that “the focal point for judicial review should be the administrative
record already in existence, not some new record made initially in the reviewing court.” Camp v.
Pitts,
411 U.S. 138, 142 (1973). This focus is maintained in order to prevent courts from using
new evidence to “convert the arbitrary and capricious standard into effectively de novo review.”
L-3 Commc’ns EOTech, Inc. v. United States,
87 Fed. Cl. 656, 671 (2009) (citations omitted).
This Court has interpreted the Federal Circuit’s directive in Axiom to mean that
supplementation of the administrative record is permitted to correct mistakes and fill gaps, but is
not permitted when the documents proffered are unnecessary for an effective review of the
government’s procurement decision. Id. at 672. And so, this Court has precluded
supplementation of the administrative record with declarations that contain “post-hoc contentions
of fact and argument.”
Id.
12
IV. LEGAL ANALYSIS
The parties have filed cross-motions for judgment upon the administrative record
pursuant to RCFC 52.1 on the issue of whether NASA’s decisions to exclude Pinnacle’s proposal
from the competitive range for the ALICE Contract and to award that contract to Yulista was
lawful and rational. See generally Pl. Mot.; Def. Mot.; Def.-Int. Mot. Pinnacle has also filed
motions for preliminary and permanent injunctive relief and declaratory relief, and a motion to
strike certain declarations filed in connection with the government’s cross-motion for judgment
upon the administrative record. See Pl. Mot. Prelim. Inj.; Pl. Mot.; Pl. Mot. to Strike.
Pinnacle argues in its motion for judgment upon the administrative record that NASA’s
evaluation process and award decision were not rational, because the agency: (1) arbitrarily
assigned weaknesses to Pinnacle’s proposal—and ignored other strengths in that proposal—with
respect to the mission suitability factor; (2) evaluated Pinnacle’s past performance based upon
outdated information; (3) improperly abandoned certain weaknesses and a significant weakness
found during the initial evaluation of Yulista’s proposal; and (4) unequally evaluated the
proposals submitted by Pinnacle and Yulista. See Pl. Mot. at 7-45. The government and Yulista
counter that NASA conducted a sound evaluation process for the ALICE Contract that was
consistent with the requirements of the RFP and applicable law. See Def. Mot. at 15-50; Def.-
Int. Mot. at 1-9.
Pinnacle also requests that the Court strike three declarations that the government has
submitted in support of the government’s cross-motion for judgment upon the administrative
record, because these declarations should not be included in the administrative record. See
generally Pl. Mot. to Strike. The government opposes Pinnacle’s motion to strike upon the
ground that it need not supplement the administrative record with these documents because the
declarations address Pinnacle’s request for injunctive relief. See generally Def. Resp. to Mot. to
Strike.
For the reasons discussed below, a review of the administrative record shows that it is not
appropriate to supplement the extensive administrative record in this matter with the declaration
of the contracting officer for the ALICE Contract. The record evidence also makes clear that
NASA’s evaluation process in connection with the award of the ALICE Contract was reasonable
and conducted in accordance with the terms of the RFP and applicable law. And so, the Court
13
must: (1) DENY Pinnacle’s motions for judgment upon the administrative record and for
preliminary and permanent injunctive relief and declaratory relief; (2) GRANT the
government’s and Yulista’s cross-motions for judgment upon the administrative record; (3)
GRANT-IN-PART and DENY-IN-PART Pinnacle’s motion to strike; and (4) DISMISS the
complaint.
A. The Court Grants-In-Part And Denies-In-Part Pinnacle’s Motion To Strike
As a preliminary matter, the Court grants-in-part and denies-in-part Pinnacle’s motion to
strike. In its motion to strike, Pinnacle requests that the Court strike the Declarations of Brian
Kelly, Perry Lamar Mueller, and Alice Pursell, which have been filed in support of the
government’s cross-motion for judgment upon the administrative record, because these
documents were not a part of the record before NASA at the time that the agency evaluated
Pinnacle’s proposal and reached the decision to award the ALICE Contract to Yulista. Pl. Mot.
to Strike at 3-5. For this reason, Pinnacle argues that these declarations improperly address the
merits of this bid protest dispute and that the government has not shown that the declarations
should be included in the administrative record. Id.; see also Oral Arg. Tr. at 24:24-25:20.
As Pinnacle correctly observes in its motion to strike, the focal point of the Court’s
review of NASA’s evaluation process and award decision for the ALICE Contract should be the
administrative record already in existence, not some new record made initially in the reviewing
court. Camp v. Pitts, 411 U.S. 138, 142 (1973). And so, the administrative record should only
be supplemented in this case to correct mistakes and fill gaps “if the existing record is
insufficient to permit meaningful review consistent with the APA.” Axiom Res. Mgmt., Inc. v.
United States,
564 F.3d 1374, 1379-81 (Fed. Cir. 2009).
A careful review of the subject declarations and the government’s cross-motion shows
that the government relies upon the Declarations of Brian Kelly and Alice Pursell to show that
Pinnacle will not suffer irreparable harm if the Court declines to grant Pinnacle’s request for
preliminary and permanent injunctive relief. See Def. Mot. at 57-59; see generally Kelly Decl.;
Pursell Decl. This review also shows that the government provides the Declaration of Perry
Lamar Mueller—the current contracting officer for the ALICE Contract—to provide additional
details about NASA’s evaluation of the past performance factor in connection with the award of
the ALICE Contract. Mueller Decl. at ¶¶ 2-5; see also Def. Mot. at 51-53.
14
While the government need not seek to supplement the administrative record with
documents that address the injunctive relief factors, the government may not rely upon
declarations that address the merits of this dispute without successfully seeking to supplement
the administrative record. See, e.g., AshBritt, Inc. v. United States, 87 Fed. Cl. 344, 366-67
(2009); see also Oral Arg. Tr. at 53:18-58:11. Here, a reading of the Pursell and Kelley
Declarations shows that these documents solely address Pinnacle’s request for injunctive relief.
And so, the Court does not find the filing of these two declarations to run afoul of RCFC 52.1.
AshBritt, 87 Fed. Cl. at 366-67.
But, to the extent that the Mueller Declaration addresses the evaluation process for the
ALICE Contract, this declaration improperly addresses the merits of this dispute. See Mueller
Decl. at ¶¶ 2-5; see also L-3 Commc’ns EOTech, Inc. v. United States, 87 Fed. Cl. 656, 672
(2009). And so, the Court GRANTS Pinnacle’s motion to strike with respect to the Declaration
of Perry Lamar Mueller and DENIES Pinnacle’s motion to strike with respect to the
Declarations of Brian Kelly and Alice Pursell.
B. Pinnacle Fails To Establish Prejudice
With respect to the merits of this bid protest dispute, the Court observes at the outset of
its analysis that the administrative record makes clear that Pinnacle cannot show that it has been
prejudiced by NASA’s alleged evaluation errors during the procurement process for the ALICE
Contract. See AR Tab 47 at 12151; Oral Arg. Tr. at 28:17-32:11, 38:1-39:8, 46:13-47:22, 60:23-
61:13. It is well-established that to prevail in this bid protest dispute, Pinnacle must show a
significant, prejudicial error in the procurement process with respect to any violations of
procurement procedure. Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996)
(“To establish competitive prejudice, a protester must demonstrate that but for the alleged error,
there was a substantial chance that [it] would receive an award—that it was within the zone of
active consideration.”); Data Gen. Corp. v. Johnson,
78 F.3d 1556, 1562 (Fed. Cir. 1996). And
so, Pinnacle must show that there was a substantial chance it would have been awarded the
ALICE Contract but for that error.
Statistica, 102 F.3d at 1582; see also L-3 Commc’ns EOTech,
Inc. v. United States,
83 Fed. Cl. 643, 660 (2008) (applying the substantial chance standard to
inclusion in the competitive range).
15
In this case, the administrative record shows that NASA assigned 12 weaknesses and one
significant weakness to Pinnacle’s proposal during the reevaluation of Pinnacle’s proposal. AR
Tab 28 at 9340-75. The administrative record also shows that, while Pinnacle proposed the
lowest price and received the same rating as Yulista under the past performance factor, Pinnacle
received a rating for the mission suitability factor that was 318 points lower than Yulista’s rating
for this factor. AR Tab 47 at 12149, 12151. Given this significant difference, Pinnacle bears a
heavy burden to show that, but for the errors alleged in this protest, it had a substantial chance of
being awarded the ALICE Contract. Statistica, 102 F.3d at 1582. As discussed in detail below,
the record evidence in this case makes clear that Pinnacle cannot meet this heavy burden in this
case. Id.; Data
Gen., 78 F.3d at 1562.
C. NASA’s Evaluation Of The Mission Suitability Factor Was Reasonable
As an initial matter, Pinnacle’s objections to NASA’s evaluation of the mission
suitability factor under the RFP are unsubstantiated by the record evidence. In this regard, the
RFP provides that NASA will consider three subfactors when evaluating mission suitability:
management approach, technical approach, and safety and health approach. AR Tab 22 at 6113;
Tab 23 at 8654. Pinnacle challenges weaknesses that NASA assigned to its proposal with
respect to each of these subfactors. See Pl. Mot. at 7-29. Pinnacle also argues that NASA should
have assigned other strengths to its proposal with respect to the management approach and
technical approach subfactors. See id. at 37-42. Pinnacle’s claims lack evidentiary support for
several reasons.
1. NASA Reasonably Evaluated Pinnacle’s
Proposal Under The Management Approach Subfactor
First, the administrative record shows that NASA reasonably evaluated Pinnacle’s
proposal with respect to the management approach subfactor.
i. NASA Reasonably Assigned A Weakness For Pinnacle’s
Plan To Ensure Adherence To Work Schedules And Breaks
Pinnacle’s objection to NASA’s decision to assign a weakness to its proposal in
connection with the RFP’s requirement that Pinnacle demonstrate how it would manage its
workforce “to ensure adherence to work schedules and break times while supporting dynamic
flight schedules” is unsubstantiated by the record evidence. AR Tab 22 at 5847; see also Pl.
16
Mot. at 8-11. The administrative record shows that NASA assigned this weakness because the
agency found that Pinnacle’s proposal increased the risk of abuse regarding adherence to posted
work and break schedules. AR Tab 28 at 9340. While Pinnacle correctly observes that its
proposal provides that Pinnacle would post work schedules and that supervisors would monitor
timekeeping and timesheets, Pinnacle points to no evidence in the administrative record to show
that it complied with the specific requirement in the RFP to show how Pinnacle would ensure
adherence to work schedules and break times. Id.; see also AR Tab 22 at 5847 (“Describe how
you manage your workforce to ensure adherence to work schedules and break times while
supporting dynamic flight schedules.”); AR Tab 24 at 8964, 8974-75; see generally AR Tab 24
at 8974-75. And so, Pinnacle fails to show that NASA irrationally evaluated its proposal with
respect to this requirement.
ii. Pinnacle Has Waived Its Challenge To NASA’s
Decision Regarding Physically Demanding Positions
Pinnacle’s claim that NASA irrationally assigned a weakness with respect to the RFP’s
requirement to identify physically demanding positions is also unsubstantiated. Pl. Mot. at 11-
13. The record evidence shows that NASA assigned a weakness for the management approach
subfactor because Pinnacle did not include the water survivor instructor, or team lead, first line
supervisor, maintenance positions in the discussion of physically demanding positions contained
in Pinnacle’s proposal. AR Tab 28 at 9342.
Pinnacle’s objection to the assignment of this weakness appears to be based upon a
disagreement with NASA about the meaning of the term “physically demanding positions” as
used in the RFP. See Pl. Mot. at 11-13; AR Tab 28 at 9342. While the RFP clearly requires that
Pinnacle identify which positions, exclusive of aircrew, are physically demanding—and that
Pinnacle provide physical requirements for each such position—the RFP does not define the
term “physically demanding positions.” AR Tab 22 at 5847; Tab 28 at 9342; see generally AR
Tab 22; AR Tab 23. Given the clear ambiguity in the RFP regarding the meaning of the term
“physically demanding positions,” Pinnacle should have raised any concerns about the meaning
of this term prior to the close of the bidding process for the ALICE Contract. Because Pinnacle
did not do so, Pinnacle has waived this claim. Blue & Gold, Fleet, L.P. v. United States, 492
F.3d 1308, 1313-15 (Fed. Cir. 2007); see generally AR Tab 22 at 5847.
17
iii. NASA Reasonably Assigned A
Weakness For Pinnacle’s Proposed Fringe Benefits
Pinnacle’s claim that NASA irrationally assigned a weakness because Pinnacle proposed
different fringe benefits for certain employees is also unsupported by the record evidence. Pl.
Mot. at 13-15. Pinnacle does not dispute that it proposed different fringe benefits for certain
employees. Id. The administrative record also shows that Pinnacle did not explain why having
different fringe benefits for certain employees would be reasonable for the ALICE Contract. AR
Tab 28 at 9347; see also AR Tab 22 at 5890; AR Tab 24 at 9015-17. And so, the record
evidence shows that NASA reasonably assigned this weakness.
iv. NASA Reasonably Assigned A Weakness For
Pinnacle’s Proposal To Provide Lower Pay To Supervisors
Pinnacle’s objection to NASA’s decision to assign a weakness to its proposal because
Pinnacle proposed providing lower compensation for certain supervisory positions is equally
unavailing. Pl. Mot. at 15-16. A review of the RFP shows that the RFP requires that Pinnacle
provide written support to demonstrate that its proposed compensation is reasonable. AR Tab 22
at 5890 (“The contractor shall provide written support to demonstrate that its proposed
compensation is reasonable.”). But, the record evidence shows that Pinnacle did not explain why
it would be reasonable to pay certain supervisors less than the employees that they supervise.
AR Tab 28 at 9350. And so, again, Pinnacle’s objection to NASA’s decision to assign this
weakness is not supported by the record evidence.
v. NASA Reasonably Assigned A Weakness For
Pinnacle’s Proposal To Tie COLAs To Wage Determinations
Pinnacle’s claim that NASA irrationally assigned a weakness because its proposal ties
cost of living adjustments (“COLAs”) to Department of Labor wage determinations is similarly
without merit. Pl. Mot. at 18-19. A review of Pinnacle’s proposal makes clear that Pinnacle did
not address NASA’s stated concern in assigning this weakness—that tying COLAs to wage
determinations would increase the risk of personnel turnover. AR Tab 28 at 9353-54; see also
AR Tab 23 at 8655; AR Tab 24 at 9016. And so, Pinnacle’s claim is not supported by the record
evidence.
18
vi. NASA Reasonably Assigned A Weakness
Because Pinnacle Failed To Provide A Labor
Relations Plan For Its Proposed Subcontractor
Pinnacle’s claim that NASA irrationally assigned a weakness because the proposal failed
to provide a labor relations plan for its subcontractor, DynCorp International, LLC (“DynCorp”),
is also without merit. Pl. Mot. at 19-20. Although the RFP plainly requires that Pinnacle
provide a labor relations plan for any subcontractor proposing to work on the ALICE Contract, it
is undisputed that Pinnacle did not provide a labor relations plan for DynCorp. AR Tab 22 at
5877 (“A Labor Relations Plan is required from the prime contractor and any subcontractor
proposing work on the contract that is currently represented by organized labor.”); AR Tab 28 at
9355-56; see also Pl. Mot. at 19-20. And so, Pinnacle’s claim that NASA erred in assigning this
weakness simply lacks merit.
vii. NASA Reasonably Assigned A Weakness
For Pinnacle’s Proposal To Provide Lower
Pay To Positions With Greater Responsibility
Pinnacle’s objection to NASA’s decision to assign a weakness because Pinnacle
proposed higher pay for positions with less responsibility is also unsubstantiated by the
administrative record. AR Tab 28 at 9357-59. As discussed above, the RFP requires that
Pinnacle demonstrate that the compensation proposed in its proposal is reasonable. AR Tab 22
at 5890. But, a review of Pinnacle’s proposal shows that Pinnacle failed to explain why it
proposed higher pay for certain positions with less responsibility, or why such compensation
would be reasonable. AR Tab 24 at 9022. Given this, NASA reasonably determined that the
salary rates proposed by Pinnacle would limit the effectiveness and feasibility of Pinnacle’s
management approach.4 AR Tab 28 at 9359.
4
Pinnacle’s argument that NASA irrationally assigned this weakness because Pinnacle proposed salaries
based upon actual salaries paid to incumbent employees currently holding these position also falls flat.
See Pl. Mot. at 20-22. Even if true, this fact does not resolve the concern raised by NASA—that the
difference in pay could adversely affect management of the ALICE Contract. Pl. Resp. at 12-13; see also
AR Tab 28 at 9357-59.
19
viii. NASA Reasonably Assigned A
Weakness For Pinnacle’s Proposal To Merge
The Phase-In And Executive Manager Positions
Pinnacle’s objection to NASA’s decision to assign a weakness because Pinnacle
proposed having one person serve as the phase-in manager and executive manager for the
ALICE Contract is also unsubstantiated by the administrative record. Pl. Mot. at 22. While
Pinnacle puts forward several persuasive arguments about the potential benefits of having the
same person serve in both of these positions in its motion for judgment upon the administrative
record, the record evidence shows that NASA assigned a weakness to Pinnacle’s proposal due to
concerns about whether one person could actually perform both duties. AR Tab 28 at 9360-61;
see AR Tab 22 at 5639 (requiring a full-time Executive Manager at Ellington Field); AR Tab 24
at 9028-41 (providing a list of responsibilities for the Phase-In Manager); see also Pl. Mot. at 22.
Pinnacle points to no evidence in the record to show that Pinnacle addressed this concern in its
proposal. See generally Pl. Mot. at 22; AR Tab 24 at 9042-43. And so, Pinnacle’s objection to
NASA’s decision is simply not supported by the record evidence.
ix. NASA Reasonably Assigned Weaknesses
For Inconsistent Statements And Lack Of
Clarity In Pinnacle’s Labor Relations Plan
Pinnacle’s challenges to the remaining two weaknesses that NASA assigned to its
proposal under the management approach subfactor are on a somewhat stronger footing.
First, Pinnacle’s objection to NASA’s decision to assign a weakness because its proposal
contains certain inconsistencies regarding the COLAs applicable to exempt DynCorp employees
has some merit. Pl. Mot. at 16-18. Pinnacle’s proposal states that: (1) COLAs would only be
provided for DynCorp employees where they are required pursuant to area wage determinations
or a collective bargaining agreement (which NASA interpreted to mean that no COLA would be
provided to exempt employees) and (2) labor rate escalations would be provided for exempt
DynCorp employees (which NASA interpreted to mean that COLAs would be provided). AR
Tab 38 at 11764, 11788-89; see also AR Tab 26 at 9310. Pinnacle argues that there is no
inconsistency in these two statements, because COLAs and labor rate escalation are distinct
concepts. Pl. Mot. at 8-9. But, Pinnacle’s argument is belied by other statements in Pinnacle’s
own proposal which provide that Pinnacle would base the COLAs for exempt employees on the
20
labor rate escalations. AR Tab 24 at 9015. Given this, the Court does not find NASA’s decision
to assign a weakness due to inconsistencies in Pinnacle’s proposal to lack a rational basis.5 AR
Tab 28 at 9351-52.
Pinnacle’s claim that NASA irrationally assigned a significant weakness to its proposal
because the agency found Pinnacle’s labor relations plan to be insufficient also has some merit.
Pl. Mot. at 22-23. The record evidence shows that NASA assigned this significant weakness
because Pinnacle’s labor relations plan lacked clarity regarding, among other things, collective
bargaining agreements. AR Tab 28 at 9362-65. Pinnacle persuasively argues that the significant
weakness rating for this subfactor is unreasonable, because Pinnacle’s proposed labor relation
plan complied with the requirements of the RFP. Pl. Mot. at 22-23; see also AR Tab 21 at 5581.
But, even if true, Pinnacle does not explain how NASA’s error in assigning this significant
weakness prejudiced Pinnacle, given the number of other weaknesses that NASA assigned to
Pinnacle’s proposal. Statistica, 102 F.3d at 1582; AR Tab 28 at 9340-75. And so, Pinnacle fails
to show that the elimination of this significant weakness would have put Pinnacle in the position
of having a substantial chance being awarded the ALICE Contract. See
Statistica, 102 F.3d at
1582; Oral Arg. Tr. at 38:1-39:8, 46:13-47:22, 60:23-61:13.
x. NASA Reasonably Declined To Assign
Strengths To Pinnacle’s Management Approach
Lastly, the record evidence also fails to substantiate Pinnacle’s claim that NASA should
have assigned several other strengths to Pinnacle’s proposal with respect to the management
approach subfactor. Pl. Mot. at 37-42. In this regard, Pinnacle’s claim that NASA should have
assigned a strength for the overall management approach element because of prior work
performed by Pinnacle, or DynCorp, on other contracts is unsubstantiated by the record
evidence. Id. at 37-38.
While there is no dispute among the parties that Pinnacle’s proposed management
approach satisfied the requirements of the RFP, the record evidence makes clear that NASA
remained concerned about Pinnacle’s approach to managing work schedules and break times.
5
Even if the Court accepts Pinnacle’s argument that NASA assigned this weakness in error, Pinnacle has
not shown that it was prejudiced by this error, given that NASA also assigned 11 other weaknesses and
one significant weakness to Pinnacle’s proposal. See Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582
(Fed. Cir. 1996); see also Oral Arg. Tr. at 28:17-32:11.
21
AR Tab 21a at 5596.25; AR Tab 28 at 9340-41. These reasonable concerns negatively impacted
the rating of Pinnacle’s proposal under the overall management approach element. AR Tab 28 at
9340-41; see also Def. Mot. at 43-44. Given this, NASA reasonably declined to assign a
strength to Pinnacle’s proposal with respect to the overall management approach element.
Pinnacle’s claim that it should have received a strength for the staffing approach element
is also unsubstantiated by the record evidence. Pl. Mot. at 39. Pinnacle correctly notes in its
motion for judgment upon the administrative record that its proposal offers to provide an
executive manager with management experience involving a unionized workforce and collective
bargaining agreements. Id.; see also AR Tab 24 at 8915, 8984-85, 8969. For this reason, the
record evidence shows that NASA assigned a strength to Pinnacle’s proposal under the staffing
approach and contract phase-in approach elements in recognition of Pinnacle’s experience with
collective bargaining agreements during the reevaluation process. AR Tab 28 at 9336-37. But,
as discussed above, the record evidence also shows that NASA remained concerned about how
the fringe benefits and compensation proposed by Pinnacle would affect Pinnacle’s ability to
maintain an effective and harmonious workforce. AR Tab 28 at 9345-48. Given these concerns,
Pinnacle has not shown that NASA should have also assigned a strength for the staffing
approach element for Pinnacle’s experience with unionized workforces during the reevaluation
process for the ALICE Contract.
Lastly, Pinnacle’s claim that it should have received a strength for the contract phase-in
element is also unsubstantiated by the record evidence. Pl. Mot. at 40-41. The administrative
record shows that, during the reevaluation process, NASA considered the fact that Pinnacle
received positive feedback on its previous contract phase-ins and that Pinnacle proposed to
engage the incumbent workforce through after-hours town halls to ensure a smooth transition to
the ALICE Contract. AR Tab 24 at 9042; AR Tab 25 at 9151; AR Tab 35 at 10382. But, the
administrative record also shows that NASA did not assign a strength to any of the three
responsive proposals submitted for this procurement based upon the offer to hold after-hours
town halls. AR Tab 36 at 11103-04 (providing a strength for Yulista’s phase-in approach, but
not based on its proposal to hold after-hours town halls); AR Tab 37 at 11617-18 (providing a
strength for Arctic Slope’s phase-in approach, but not based on its proposal to hold after-hours
town halls). Pinnacle also fails to point to any support in the administrative record for its
argument that its proposal should have received a strength under this element because Pinnacle’s
22
phase-in plan “will result in zero transition risk.” See Pl. Resp. at 31-32; see also AR Tab 24 at
8916-17. And so, Pinnacle’s final claim based upon the management approach subfactor also
lacks evidentiary support.
2. NASA Reasonably Evaluated Pinnacle’s
Proposal Under The Technical Approach Subfactor
The administrative record also does not support Pinnacle’s objections to NASA’s
evaluation of the technical approach subfactor under the RFP. Rather, the record evidence
makes clear that NASA reasonably evaluated Pinnacle’s proposal with respect to this subfactor.
First, Pinnacle’s objection to NASA’s decision to assign a weakness for the technical
approach subfactor because Pinnacle included contract management in the baseline under the
RFP is belied by the record evidence. Pl. Mot. at 23-24. The administrative record shows that
Pinnacle proposed the executive manager and the management team in its base of estimate for
the baseline portion of the ALICE Contract. AR Tab 24 at 8929. But, the administrative record
makes clear that the RFP classifies such contract management work as indefinite-
delivery/indefinite-quantity work, rather than baseline work. AR Tab 22 at 5638. And so,
Pinnacle erred in including this work in the baseline portion of the ALICE Contract.6 AR Tab 28
at 9366-67.
Pinnacle’s claim that NASA irrationally assigned a weakness because Pinnacle’s non-
labor resource estimate was 90% lower than the government’s estimate also lacks merit. Pl. Mot.
at 24-29; see also AR Tab 28 at 9368-70. The RFP requires that offerors develop their own non-
labor resource estimates and states that NASA would evaluate proposals based upon the
“comprehensiveness, feasibility, soundness, and clarity of the proposed approach.” AR Tab 22
at 6147; see also id. at 6120. There is no dispute that Pinnacle used actual numbers from another
contract—the AMOS contract—and then reduced these figures by 13%, to determine its non-
labor resource estimate. AR Tab 24 at 8929. But, Pinnacle points to no evidence in the
administrative record to show that it addressed NASA’s concern that the decision to use figures
from the AMOS contract would not be reasonable within the context of the ALICE Contract.
6
A review of Pinnacle’s proposal also shows that that Pinnacle did not provide a supporting rationale for
adding any labor categories to the baseline government resources estimate for the ALICE Contract, as
also required by the RFP. AR Tab 24 at 8929; see AR Tab 22 at 6120; see also AR Tab 21 at 5584.
23
AR Tab 28 at 9368-70; see generally AR Tab 24 at 8928-29. Given this, NASA’s decision to
assign a weakness under this subfactor is reasonable. AR Tab 28 at 6368-70.
Lastly, Pinnacle has also not shown that NASA should have awarded a strength to its
proposal for Pinnacle’s approach to resources. Pl. Mot. at 41-42. The administrative record
shows that Pinnacle provided a ten-page chart of necessary qualifications, certifications,
education, and training that is similar to the RFP’s requirements to address this element.
Compare AR Tab 22 at 5715-29, with AR Tab 24 at 8919-29. But, Pinnacle points to no specific
areas where its proposal exceeded the requirements set forth in the RFP. See Pl. Resp. at 32-33.
Given this, the Court finds NASA’s decision not to award a strength for this subfactor to also be
reasonable.
3. NASA’s Evaluation Of The Safety And
Health Approach Subfactor Was Reasonable
Thirdly, Pinnacle’s claim that NASA irrationally assigned a weakness with respect to the
safety and health subfactor is also unsupported by the record evidence. Pl. Mot. at 25-29. The
administrative record shows that NASA assigned a weakness for this subfactor because Pinnacle:
(1) assigned the same person to two different safety positions; (2) did not address NASA’s
concerns about the fear of reprisals; and (3) did not show that Pinnacle would properly maintain
certain documentation. AR Tab 28 at 9373-75. There is no dispute among the parties that
Pinnacle designated one person to serve as the safety representative and safety and health official
for the ALICE Contract. AR Tab 24 at 9069. Pinnacle also points to no evidence in the record
to show that Pinnacle addressed NASA’s concerns about fear of reprisals or failure to maintain
documentation in its proposal. AR Tab 28 at 9375; see also AR Tab 24 at 9066-69, 9078-79,
9092. And so, again, Pinnacle simply has not substantiated its claim based upon the evidence in
the administrative record.
D. NASA Reasonably Evaluated Pinnacle’s
Proposal Under The Past Performance Factor
The record evidence also shows that NASA appropriately evaluated Pinnacle’s proposal
with respect to the RFP’s past performance factor. In this regard, Pinnacle argues that NASA
failed to consider certain updated CPARS scores that Pinnacle received for three other
contracts—the AMOC contract; KC-10 ATS contract; and FRPP&C contract—during the
24
reevaluation process. See Pl. Mot. at 42-45; Pl. Resp. at 33-36; see also Oral Arg. Tr. at 26:7-
28:12. But, the record evidence shows that NASA did consider updated CPARS scores for
Pinnacle with respect to both the AMOC and KC-10 ATS contracts. See AR Tab 47 at 12211
(stating that past performance data for all offerors was current as of July 28, 2017); see also AR
Tab 21a at 5596.8, 5596.20 (providing CPARS for the AMOC and KC-10 ATS contracts, dated
November 14, 2016 and April 27, 2017, respectively); Oral Arg. Tr. at 48:8-49:11.
The record evidence also shows that NASA received an updated CPARS for the
FRPP&C contract after the reevaluation process concluded and that NASA also deemed this
contract to be irrelevant to its evaluation of Pinnacle’s proposal. AR Tab 32 at 10325 (providing
the CPARS for the FRPP&C contract, dated August 11, 2017); see also Oral Arg. Tr. at 49:12-
50:21; AR Tab 35 at 10374 (finding the FRPP&C contract “Not Relevant” based on its content,
complexity, and size of effort). Given this, the record evidence supports NASA’s decision to
assign Pinnacle a “moderate confidence” rating for the RFP’s past performance factor.7 See
generally AR Tab 35.
E. NASA’s Evaluation Of Yulista’s Proposal Was Reasonable
The Court also finds no support in the administrative record for Pinnacle’s claim that
NASA improperly abandoned certain weaknesses in Yulista’s proposal during the reevaluation
process. Pl. Mot. at 33-37. In this regard, Pinnacle challenges NASA’s decision to abandon a
weakness that NASA assigned to Yulista’s proposal during the initial evaluation of proposals
regarding the contributions of sister companies and subcontractor compensation. Id.
The record evidence shows, however, that NASA erroneously assigned a weakness for
Yulista’s apparent failure to explain how its sister workforce, or other resources, could be relied
upon in connection with the ALICE Contract during NASA’s initial evaluation of Yulista’s
7
Pinnacle correctly argues that NASA did not specifically address whether the revised CPARS scores
that the agency considered warranted an updated past performance evaluation for Pinnacle. But, the
Court affords NASA significant discretion in making past performance determinations. See Glenn Def.
Marine (Asia), PTE Ltd. v. United States,
720 F.3d 901, 909-11 (Fed. Cir. 2013) (emphasizing that courts
afford agencies broad deference in determining past performance ratings provided that the agency
considers the record in its entirety); Westech Int’l, Inc. v. United States,
79 Fed. Cl. 272, 293 (2007)
(“While the [Source Evaluation Board]’s Report does not provide an exhaustive comparison of
[plaintiff]’s past performance . . . that level of detail is not required.”). Because the record evidence
provides a rational basis for NASA’s evaluation of Pinnacle’s proposal with respect to the RFP’s past
performance factor, Pinnacle’s claim is unavailing.
25
management plan. Compare AR Tab 49 at 12264, with AR Tab 22 at 5847-48. As the
government points out in its cross-motion, the RFP provides that this information should have
been addressed in the past performance portion of Yulista’s proposal, rather than in connection
with the management plan. Def. Mot. at 39-40; see also AR Tab 22 at 5847-48, 6149. For this
reason, NASA appropriately declined to assign a weakness to Yulista’s proposal with respect to
the management plan during the reevaluation process. AR Tab 30 at 10095-113.
Pinnacle’s claim that NASA improperly abandoned a weakness regarding the total
compensation plan proposed by Yulista’s subcontractor, Qualified Technical Services (“QTS”),
is also unsubstantiated. Pl. Mot. at 34-35. The record evidence shows that NASA initially
assigned this weakness because QTS’s total compensation plan did not address whether certain
workers would receive credit for seniority during the transition to a new contract. AR Tab 49 at
12265. But, the administrative record shows that NASA erred in assigning this weakness,
because Yulista’s proposal states that QTS will recognize the cumulative seniority of all
incumbent employees. AR Tab 36 at 10533; see also id. at 11114. Given this, NASA’s decision
to not assign a weakness during the reevaluation process is consistent with the RFP and
supported by the record evidence. See Sotera Def. Sols. v. United States,
118 Fed. Cl. 237, 262
(2014) (“As long as the agency adheres to the evaluation criteria set forth in the solicitation, the
court believes that an agency has the discretion to reevaluate proposals during a corrective action
and to correct prior evaluation errors.”).
F. Pinnacle’s Unequal Treatment Claim Is Unsubstantiated
As a final matter, Pinnacle’s claim that NASA failed to equally evaluate the management
plans proposed by Pinnacle and Yulista is also unsubstantiated by the record evidence. Pl. Mot.
at 29-33. In its motion for judgment upon the administrative record, Pinnacle argues that NASA
irrationally assigned Pinnacle a lower evaluation rating than Yulista because Pinnacle’s
management plan shares many of the strengths that NASA identified in Yulista’s management
plan. Id. But, the record evidence shows that NASA determined that Yulista’s management plan
contained many other strengths not found in Pinnacle’s management plan that justified a
significant strength rating. AR Tab 36 at 11099-100 (finding that Yulista’s proposed
management plan includes: [***]). Given these additional strengths, the record evidence also
shows that NASA treated the two offerors equally.
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In addition, Pinnacle’s claim that NASA failed to equally evaluate the proposals put
forward by Pinnacle and Yulista with respect to potential partnership opportunities that could be
established with NASA is also unsubstantiated. Pl. Mot. at 31-33. The administrative record
shows that Yulista’s proposal highlighted [***]. AR Tab 36 at 10459. In contrast, the record
evidence shows that Pinnacle did not identify any such existing relationships in its proposal, but,
rather Pinnacle proposed that it would hire a marketing manager to help identify potential
avenues for partnerships. AR Tab 24 at 8978. Given the differences in these two approaches,
NASA’s decision to assign a higher rating to Yulista’s proposal was reasonable and consistent
with the requirements of the RFP. AR Tab 36 at 11105-06.
At bottom, none of the objections that Pinnacle has raised in its motion for judgment
upon the administrative record are supported by the administrative record in this matter. Given
this, Pinnacle has simply not shown that NASA erred in conducting the evaluation process for
the ALICE Contract or that Pinnacle has been prejudiced by this evaluation process. See
Statistica, 102 F.3d at 1582; Data Gen. Corp. v. Johnson,
78 F.3d 1556, 1562 (Fed. Cir. 1996).
And so, given the lack of support in the administrative record for any of Pinnacle’s claims, the
Court must DENY Pinnacle’s motion for judgment upon the administrative record and GRANT
the government’s and Yulista’s cross-motions for judgment upon the administrative record.
G. Pinnacle Is Not Entitled To Injunctive Relief
Lastly, because Pinnacle has not prevailed upon the merits of any of its claims
challenging NASA’s evaluation process, Pinnacle has also not demonstrated that it is entitled to
the injunctive relief that it seeks in this case. Argencord Mach. & Equip., Inc. v. United States,
68 Fed. Cl. 167, 176 (2005) (holding that a plaintiff that has not actually succeeded upon the
merits of its claim cannot prevail upon a motion for injunctive relief). And so, the Court must
also DENY Pinnacle’s motions for preliminary and permanent injunctive relief and declaratory
relief.
V. CONCLUSION
In sum, Pinnacle has not met its heavy burden to show that NASA conducted an improper
or irrational evaluation process for the ALICE Contract, or that Pinnacle has been prejudiced by
any errors during the procurement process. Rather, the record evidence shows that NASA
reasonably evaluated the proposals submitted by Pinnacle and Yulista, and that the agency also
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reasonably decided to exclude Pinnacle’s proposal from the competitive range for this contract
and to award the ALICE Contract to Yulista. In addition, the government has not shown that it is
appropriate to supplement the extensive administrative record in this matter with the Declaration
of Perry Lamar Mueller. And so, for the foregoing reasons, the Court:
1. DENIES Pinnacle’s motions for judgment upon the administrative record,
preliminary and permanent injunctive relief, and declaratory relief;
2. GRANTS the government’s and Yulista’s cross-motions for judgment upon the
administrative record;
3. GRANTS-IN-PART and DENIES-IN-PART Pinnacle’s motion to strike and
directs the Clerk’s Office to STRIKE the Declaration of Perry Lamar Mueller; and
4. DISMISSES the complaint.
The Clerk shall enter judgment accordingly.
Each party to bear its own costs.
Some of the information contained in this Memorandum Opinion and Order may be
considered protected information subject to the Protective Order entered in this matter on
January 2, 2018. This Memorandum Opinion and Order shall therefore be filed UNDER SEAL.
The parties shall review the Memorandum Opinion and Order to determine whether, in their
view, any information should be redacted in accordance with the terms of the Protective Order
prior to publication. The parties shall FILE a joint status report identifying the information, if
any, that they contend should be redacted, together with an explanation of the basis for each
proposed redaction on or before April 12, 2018.
IT IS SO ORDERED.
s/ Lydia Kay Griggsby
LYDIA KAY GRIGGSBY
Judge
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