Case: 20-1390    Document: 42     Page: 1   Filed: 10/05/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

        G4S SECURE SOLUTIONS (USA), INC.,
                Plaintiff-Appellant

                             v.

         UNITED STATES, ISS ACTION, INC.,
                Defendants-Appellees
               ______________________

                        2020-1390
                  ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:19-cv-01329-TCW, Judge Thomas C. Wheeler.
                  ______________________

                 Decided: October 5, 2020
                 ______________________

     GERALD HOWARD WERFEL, Baker, Cronogue, Tolle &
 Werfel, LLP, McLean, VA, for plaintiff-appellant. Also rep-
 resented by HENRY TODD WHAY.

     LAUREN MOORE, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, for defendant-appellee United States. Also repre-
 sented by JEFFREY B. CLARK, TARA K. HOGAN, ROBERT
 EDWARD KIRSCHMAN, JR.

    ROBERT JOSEPH SNECKENBERG, Crowell & Moring,
Case: 20-1390    Document: 42      Page: 2    Filed: 10/05/2020




2               G4S SECURE SOLUTIONS (USA)   v. UNITED STATES



 LLP, Washington, DC, for defendant-appellee ISS Action,
 Inc. Also represented by DANIEL RUBEN FORMAN.
                  ______________________

     Before DYK, MOORE, and TARANTO, Circuit Judges.
 MOORE, Circuit Judge.
      G4S Secure Solutions (USA), Inc., appeals a final deci-
 sion of the United States Court of Federal Claims granting
 the government judgment on the administrative record for
 its award to ISS Action, Inc. and denying G4S’s cross-mo-
 tion for judgment on the administrative record and its re-
 quest for a permanent injunction. G4S Secure Sols. (USA),
 Inc. v. United States, 

, 267 (2019). Because
 the government’s contract award was not arbitrary, capri-
 cious, an abuse of discretion, or otherwise not in accordance
 with law, we affirm.
                        BACKGROUND
      The U.S. Department of Homeland Security’s Customs
 and Border Protection (CBP) issued a Solicitation for secu-
 rity and transportation services on the southwest border of
 the United States. J.A. 7. The Solicitation included three
 evaluation factors: (1) Experience and Risk Aware-
 ness/Mitigation, (2) Oral Presentation, and (3) Pricing
 Spreadsheet and Sample Task Order Submission.

under the first evaluation factor,
 offerors were required to submit a corporate experience
 questionnaire (CEQ), identifying “up to three (3) reference
 projects . . . demonstrating relevant experience performing
 projects similar in size, scope, and complexity” to the pro-
 ject in the Solicitation. J.A. 10003; 10012. An offeror was
 permitted to include in its CEQ two of its own past con-
 tracts and one of a teaming partner (i.e., a subcontractor),
 if the submission was under a Contractor Teaming Ar-
 rangement (CTA). J.A. 10003; 10012. In that case, the
 “Government [would] assess the collective experience in
 each vendor’s submittal.” J.A. 10012.
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 G4S SECURE SOLUTIONS (USA)   v. UNITED STATES                 3



     G4S Secure Solutions (USA), Inc. and ISS Action, Inc.,
 were the only two offerors to respond to the Solicitation. As
 part of its submission, G4S’s CEQ identified three of its
 own prior contracts. ISS’s CEQ identified two of its own
 prior contracts and one of its CTA partner’s prior contracts.
 Following the first phase of CBP’s evaluation, both G4S
 and ISS received a rating of “High Confidence” and were
 invited to participate in the second phase of the evaluation.
 J.A. 8. In phase two, G4S received a rating of “Some Con-
 fidence” for its technical and management approach (factor
 two), while ISS received a “High Confidence” rating. J.A.
 15. And although CBP viewed both pricing proposals as
 “low performance risks,” ISS’s proposal was $100 million
 less than G4S’s (factor three). J.A. 7–8. CBP selected ISS
 after determining that the “overall technical approach and
 expected performance level is higher for ISS Action and
 that level of performance costs much less than [G4S];
 therefore, ISS Action offers the best value.” J.A. 10288.
     G4S filed a bid protest in the Court of Federal Claims
 challenging CBP’s contract award to ISS as arbitrary, ca-
 pricious, an abuse of discretion, and as otherwise not in ac-
 cordance with the law. ISS intervened. G4S and the
 government filed cross-motions for judgment on the admin-
 istrative record. G4S also moved to enjoin ISS from com-
 mencing work under the contract. The Court of Federal
 Claims granted the government’s motion for judgment on
 the administrative record and denied G4S’s cross-motion
 and its request for a permanent injunction. G4S appeals.
 We have jurisdiction under 28 U.S.C. § 1295(a)(3).
                         DISCUSSION
     We review de novo Court of Federal Claims decisions
 granting judgment on the administrative record in bid pro-
 test cases. Bannum, Inc. v. United States, 

,
 1351 (Fed. Cir. 2005). Under this standard, we consider
 whether the agency’s action was “arbitrary, capricious, an
 abuse of discretion, or otherwise not in accordance with
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4                G4S SECURE SOLUTIONS (USA)   v. UNITED STATES



 law.” See 5 U.S.C. § 706(2)(A); 28 U.S.C. § 1491(b)(4). We
 may set aside a procurement decision “if it lacked a rational
 basis or if the agency’s decision-making process involved a
 clear and prejudicial violation of statute, regulation, or pro-
 cedure.” Croman Corp. v. United States, 

,
 1363 (Fed. Cir. 2013). An agency is “entitled to a high de-
 gree of deference when faced with challenges to procure-
 ment decisions.” Orion Tech., Inc. v. United States, 

, 1351 (Fed. Cir. 2013).
     G4S’s only merits challenge is to the trial court’s deter-
 mination that “the record . . . supports CBP’s decision that
 ISS’s ‘collective experience’ was sufficient to warrant a
 High Confidence rating” in phase one of its evaluation. 1
 J.A. 13. G4S argues that CBP improperly permitted ISS to
 proceed to phase two on the basis of two contracts in ISS’s
 CEQ that were not similar in size, scope, and complexity to
 the work in the request for quotes. We do not agree. One
 of ISS’s contracts involved armed transportation services,
 and both contracts involved armed guard and security ser-
 vices, like those described in the Solicitation. J.A. 10100–
 02. Moreover, G4S concedes that “ISS’s CTA partner had
 qualifying experience[.]” G4S Reply Br. at 8. And as the
 CEQ explained, CBP assessed “the collective experience in
 each vendor’s submittal.” J.A. 10012. Following a phone
 interview to evaluate ISS’s factor one submission, CBP
 noted several aspects that justified inviting ISS to partici-
 pate in phase two, including (1) that ISS’s “contracts reflect
 the ability to hire and train personnel and demonstrate
 similar contract performance duties”; (2) ISS’s familiarity
 with and experience in related work and the direct experi-
 ence of its CTA partner’s manager; (3) ISS’s ability to main-
 tain and train its staff; and (4) ISS’s policy of maintaining



     1   G4S also challenges the trial court’s denial of its
 request for a permanent injunction. This challenge is con-
 tingent on G4S succeeding in its merits challenge.
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 G4S SECURE SOLUTIONS (USA)   v. UNITED STATES                 5



 100% staffing and 100% of its vehicles as mission capable
 at all times. J.A. 10132. On this record, we hold that the
 Court of Federal Claims did not err in holding that CBP’s
 determination that ISS’s experience and risk aware-
 ness/mitigation supported a “High Confidence” rating was
 not arbitrary, capricious, or in violation of law. Because
 the Court of Federal Claims did not err in granting the gov-
 ernment judgment on the administrative record, denying
 G4S’s request for a permanent injunction was proper.
                        CONCLUSION
     We have considered the parties’ remaining arguments
 and do not find them persuasive. Because the Court of Fed-
 eral Clams did not err in granting the government judg-
 ment on the administrative record and in denying G4S’s
 request for a permanent injunction, we affirm the judg-
 ment.
                        AFFIRMED