CHARLES F. LETTOW, Judge.
These bid protests address a procurement that has spanned years and has proved to be refractory and intricate. A solicitation by the United States ("the government", acting by and through the United States Department of the Army ("Army" or "agency"), was initiated in 2013 for a mission-test, support-services contract at the United States Army Yuma Proving Ground ("Yuma") in Arizona. On September 10, 2014, the Army awarded the contract to Jacobs Technology Inc. ("Jacobs") after a procurement process that extended over approximately sixteen months. TRAX International Corporation ("TRAX"), the incumbent contractor at Yuma and another offeror in the procurement, protested the award at the Government Accountability Office ("GAO"). Before GAO rendered a decision, the Army took corrective action and reopened discussions with offerors. The Army awarded the contract to Jacobs a second time in December 2015, but it renewed corrective action after TRAX again protested the award at GAO. The Army awarded the contract to Jacobs for a third time in October 2016, which TRAX also protested at GAO. In November 2016, the Army decided to take corrective action for a third time, stating that it would reevaluate final proposals and make a new source selection decision. The Army concluded that a third round of corrective action was warranted because (1) Jacobs violated the solicitation by altering its oral presentation slides without making a new oral presentation, and (2) TRAX proposed a staffing baseline that deviated from the baseline in the solicitation.
Jacobs and TRAX have each filed suit in this court to challenge the Army's most recent corrective action, presenting diametrically divergent claims and seeking different relief. Jacobs challenges the Army's decision to take corrective action and contends that the Army's corrective action has an overly broad scope and is arbitrary and capricious. Jacobs seeks a permanent injunction enjoining the Army from proceeding with the corrective action, thus allowing Jacobs to receive the third contract award. In contrast, TRAX brings a bias claim against the Army on the ground that the procurement officials have demonstrated favored treatment of Jacobs, as evidenced by the three successive awards Jacobs has received and by the agency's failure to enforce a common baseline for the offerors' staffing proposals, which allegedly has benefited Jacobs and prevented TRAX from participating in a fair competition. TRAX contends that the corrective action is not sufficiently broad and requests that the court issue an injunction directing the Army to either (1) appoint new, unbiased procurement officials, or (2) cancel the solicitation and resolicit revised proposals under fair terms.
Pending before the court are the parties' cross-motions for judgment on the administrative record in Jacobs and TRAX's motion for discovery and the government's motion to dismiss in TRAX. For the reasons stated, Jacobs' motion for judgment on the administrative record is denied, the government's and TRAX's cross-motions for judgment on the administrative record in Jacobs are granted, TRAX's motion for discovery is denied, and the government's motion to dismiss TRAX's complaint is granted for failure to state a claim upon which relief can be granted.
The Yuma Proving Ground is an Army facility located in Arizona. AR 3a-210.
On May 16, 2013, the Army issued a Request for Proposals ("RFP"), solicitation number W9124R-13-R-0001, regarding a contract for "Mission (Test) Support Services" at Yuma. AR 3-96 to -97. The RFP contemplated the award of a single "Cost-Plus-Award-Fee" contract with a firm-fixed-price for a two month phase-in performance period, "a one-year base period of performance from the [first] day of full contract performance, and three one-year option periods, if exercised." AR 3-108. The contractor would "provide personnel, management, and any other items and services not government furnished to perform the services defined in th[e] Performance Work Statement." AR 3a-213.
The Army amended the RFP six times between May 23, 2013 and February 12, 2014 before making a contract award. See AR Tabs 4 to 8, 23. In amendment 6, the RFP provided for a "best value source selection" where the Army would "select the best overall offer" based upon four factors: "[m]ission [c]apability, [p]ast [p]erformance, [s]mall [b]usiness [p]articipation, and [c]ost." AR 23-2631. The procurement was to "be conducted using a two-phase process," consisting of an evaluation of (1) organizational conflicts of interest, and (2) the four factors listed above. See AR 23-2614. The mission capability factor was "significantly more important" than the past performance factor, which in turn was "more important" than the small business participation factor. AR 23-2632. The first three factors combined were "approximately equal to cost." Id. The mission capability and cost factors are the pertinent factors at issue in these bid protests.
The Army's evaluation of the mission capability factor would "consist of an assessment of the offeror's proposed [s]trategic [p]erformance [p]lan," which would be "evaluated based [upon] the offeror's understanding and explanation of how it w[ould] partner with the [g]overnment to help resolve future strategic issues as identified by [Yuma] senior leadership, support [Yuma]'s stated objectives for this acquisition[,] and bring value to the [Yuma] mission." AR 23-2633. The factor included four sub-factors:
Id. Each offeror would receive one of five technical ratings for the mission capability factor: "Outstanding," "Good," "Acceptable," "Marginal," or "Unacceptable." AR 23-2636 to -37. An offeror's rating for the mission capability factor would be based upon the offeror's ratings for the four sub-factors. AR 23-2634. To be eligible for the contract award, the RFP required each offeror to achieve a minimum rating of "Acceptable" for each sub-factor; a "Marginal" or "Unacceptable" rating for any single sub-factor would be applied to the mission capability factor and render the offeror ineligible. Id. Additionally, each offeror would receive a mission capability risk rating of "Low," "Moderate," or "High." AR 23-2637.
In addressing the mission capability factor, offerors would submit both "a limited written proposal and an oral presentation." AR 23-2620. The RFP described the format for the oral presentation:
AR 23-2622. Offerors would submit oral presentation slides by separating the slides into five general tabs, including an executive summary and information related to each of the four sub-factors within the mission capability factor. See AR 23-2620 to -22. The RFP stated that each offeror would address the first sub-factor (Management and Organization Approach) "in the written proposal and presentation materials," AR 23-2621, the second (Personnel Management Approach) and third (Quality Control and Continuous Process Improvement Approach) sub-factors "in the oral proposals only," AR 23-2622, and the fourth sub-factor (Technical Expertise) "in written format only," id.
Under the management and organization sub-factor within mission capability, each offeror was instructed to "provide a staffing plan that addresses the organizational structure of the [o]fferor's proposed team." AR 23-2621. The RFP specified:
Id. The Army provided historical staffing information at Yuma in Technical Exhibit 10, item 6, which was attached to the original RFP. See AR 3b-404 to -08. This exhibit showed 1,234 historical staff under a column titled "Count of Job Title," see id., which represented the number of full-time equivalents needed for the baseline period of the Yuma procurement, see AR 5b-454; AR 134-13505.
Id.
The Army received proposals from four offerors: InDyne, Jacobs, ManTech International, Inc., and TRAX, the incumbent contractor. AR 30-3208 to -11. Jacobs and TRAX received the highest ratings for mission capability, with [***]. AR 30-3208. [***]. Id. However, Jacobs' total proposed cost of $306,527,268 was lower than TRAX's total proposed cost of $[***]. Id. Jacobs' total evaluated probable cost/price of $411,678,388 was also lower than TRAX's total evaluated probable cost/price of $[***]. Id.
In June 2014, before the first contract award, two procurement officials on the "Cost Team" issued a clarification to the Source Selection Advisory Council to explain the "significant variance in cost" between the two highest-rated offerors, Jacobs and TRAX. See AR 124-13126 to -36. The Army attributed the variance to a "[p]roblem" it found with the historical baseline staffing data provided in Technical Exhibit 10, item 6, specifically noting that the data did not include productive hours, average wage rates, or full-time equivalents. AR 124-13127. Thus, when Jacobs and TRAX submitted baseline staffing proposals, they took different approaches. Jacobs and TRAX each provided a baseline number of total labor hours that would be expended in the base period of the contract. See AR 124-13128. Both Jacobs and TRAX also calculated the baseline total labor hours for the first year by multiplying (1) average productive labor hours per employee and (2) 1,234 employees, the figure provided in Technical Exhibit 10, item 6. See id. However, for the first prong of the equation, Jacobs' productive labor hours per employee was [***], whereas TRAX's productive labor hours per employee was [***]. See id. As a result, before either offeror applied any labor efficiencies that could reduce the offeror's proposed hours, Jacobs proposed [***] total baseline hours and TRAX proposed [***] total baseline hours for the base period. AR 124-13132. This baseline number affected the cost of the proposals. See id. Additionally, Jacobs [***], AR 124-13129, and [***], AR 124-13131 to -32. TRAX [***]. AR 124-13132.
Despite the different approaches, the Army determined that even if TRAX and Jacobs had proposed the same number of hours, whether through Jacobs' or TRAX's method, Jacobs would still have proposed a lower cost. AR 124-13133. The Contracting Officer thus found that Jacobs presented "the lowest priced offer of the most highly rated proposals," AR 31-3219, and the Source Selection Authority ("SSA") determined that Jacobs' proposal "provide[d] the best overall value," AR 30-3206. TRAX's proposed cost was deemed "unreasonable." AR 31-3219. Accordingly, on September 10, 2014, the Army awarded the contract to Jacobs. AR 32-3220.
After receiving notice of the contract award and a post-award debriefing, see AR Tabs 31, 34, TRAX timely filed a protest of the award at GAO on September 22, 2014, AR Tab 35, and followed with supplemental protest grounds on November 3, 2014, see AR Tab 127. TRAX raised a number of protest issues, including allegations related to organizational conflicts of interest, unlawful discussions, the Army's failure to evaluate proposals on a common staffing baseline, and the Army's flawed cost realism analysis. See generally id. Shortly thereafter, on November 14, 2014, the Contracting Officer "determined that corrective action related to this acquisition [was] warranted in light of TRAX's supplemental protest grounds" and that corrective action "would better serve the procurement process." AR 37-3387. The Army stated that it would "open discussions with all offerors and render a new Source Selection Decision after evaluation of revised proposals." Id. GAO subsequently dismissed TRAX's protest because the Army's corrective action "render[ed] the protest academic." AR 38-3388.
After the Army reopened discussions, InDyne, Jacobs, and TRAX submitted revised proposals and were given technical ratings by the Army. AR 60-5881. Jacobs and TRAX [***], but Jacobs submitted lower costs than TRAX for total proposed cost and total evaluated probable cost/price. Id. As with the first award evaluation, a procurement official on the Cost Team issued a clarification to the Source Selection Advisory Council to explain the variance in Jacobs' and TRAX's costs. See AR Tab 130. That clarification identified the same baseline staffing issue related to Technical Exhibit 10, item 6, and indicated that Jacobs and TRAX had again applied different methodologies to determine baseline staffing for the base year, resulting in a lower baseline of labor hours for Jacobs. See AR 130-13480 to -88.
TRAX received notice of the contract award and a post-award debriefing, see AR Tabs 64, 66, and timely filed a protest of the award decision at GAO on December 21, 2015, AR Tab 68. TRAX's protest included, among other grounds, an allegation that the Army failed to correct the common-staffing baseline issue. See AR 68-6042 to -55. The parties then engaged in outcome prediction alternative dispute resolution, where a GAO attorney reportedly stated that GAO "would likely sustain" TRAX's protest because the Army failed to evaluate proposals on a common labor-hour baseline. See AR 134-13505. Subsequently, on March 17, 2016, the Contracting Officer "determined that corrective action . . . was warranted in light of TRAX's protest ground that the [a]gency failed to ensure that offerors were competing against a common baseline of requirements." AR 70-6099. The Contracting Officer further stated:
Id. As a result, GAO dismissed TRAX's protest as academic. See Def.'s Resp. to Pl.'s Mot. for Judgment on the Administrative Record and Def.'s Cross[-]Mot. for Judgment on the Administrative Record ("Def.'s Cross-Mot.") at 6, No. 16-1602C, ECF No. 47.
In implementing the second corrective action, the Army initially issued amendments 7 and 8 to the RFP on May 12, 2016 and June 2, 2016, respectively. AR Tabs 71, 72. Those amendments related to a collective bargaining agreement, wage determinations, and baseline staffing data. See AR 71-6101 to -02; AR 72-6104 to -05. TRAX and Jacobs each filed pre-award protests at GAO, challenging specific aspects of the amended RFP. See Def.'s Cross-Mot. at 7. The Army subsequently issued amendment 9 to the RFP on June 30, 2016, which deleted amendments 7 and 8 in their entirety but did not affect amendments 1 through 6. AR 73-6117 to -18. Amendment 9 addressed a new collective bargaining agreement, revised wage determinations, and updated cost data. See AR 73-6118; AR 74a-6120. On that same day, the Army notified Jacobs and TRAX that it was "reopening discussions with offerors in the competitive range and requiring: 1) revised and complete cost proposals and 2) updated O[rganizational ]C[onflict of] I[nterest] submissions and 3) responses to E[valuation ]N[otice]s, if any." AR 74a-6120, AR 75a-6189. As a result, TRAX withdrew its pre-award protest and GAO dismissed Jacobs' pre-award protest as academic. See Def.'s Cross-Mot. at 7.
In providing notice to Jacobs and TRAX, the Army specified:
AR 76a-6262. Additionally, if an offeror submitted changes to its oral presentation slides, "an oral presentation briefing [would be] required to have the slides considered." AR 77b-6272. If necessary, the offerors would provide their oral presentations on July 21, 2016. AR 77c-6275.
In accord with the Army's second round of corrective action, Jacobs and TRAX submitted revised proposals. AR 104-8708. Prior to submitting its proposal, however, Jacobs stated in an e-mail to the Army, dated July 14, 2016, that it would not be revising its oral presentation slides or requesting an oral presentation. AR 114-8933.
Notwithstanding that disclaimer, on September 23, 2016, Jacobs submitted a second revised final proposal to reflect updates to the mission capability and small business participation factors. AR 118-9939. Jacobs stated that such updates were "minor" and had been made "to ensure consistency across" the factors. Id. Jacobs also provided a matrix detailing the changes, which indicated that Jacobs altered many of its oral presentation slides. See AR 118-9939 to -40. The changes included updates to Jacobs' organization chart, removal of [***] from Jacobs' contracting team, updates to key personnel, and updates to its "cost reduction metric," among other changes. See id.; see also AR Tab 118a.1.
After Jacobs and TRAX submitted their final proposals, [***]. AR 104-8708.
TRAX received notice of the third award, AR Tab 107, and timely filed a protest of the award decision at GAO on October 31, 2016, AR Tab 111.
AR 114-8933. GAO then dismissed TRAX's protest as academic, AR Tab 115, and Jacobs voluntarily dismissed its protest in this court, No. 16-1513C, ECF No. 29.
On December 2, 2016, Jacobs filed its present suit in this court to challenge the Army's third corrective action. See generally Jacobs Compl. Jacobs alleges that the Army's decision to take corrective action (Count I) and the overly broad scope of that corrective action (Count II) were arbitrary and capricious. See Jacobs Compl. ¶¶ 21, 23. For relief, Jacobs seeks a "permanent injunction enjoining the [a]gency from proceeding with" the corrective action, thus allowing Jacobs to receive the third contract award. See Jacobs Compl. at 9.
On January 18, 2017, TRAX filed suit in this court regarding the same procurement, alleging bias in its first and only Count. See TRAX Compl. ¶¶ 66-67. TRAX alleges that Jacobs has improperly deviated from the staffing baseline in all three of its contract proposals, TRAX Compl. ¶¶ 2-3, and that the Army's failure to enforce a common baseline indicates bias and has unfairly disadvantaged TRAX, see TRAX Compl. ¶¶ 4-5. Accordingly, TRAX requests that the court issue an injunction directing the Army to (1) appoint new, unbiased procurement officials to perform a fresh evaluation in a fair manner that is in accord with the RFP, or (2) cancel the solicitation, resolicit revised proposals under terms that establish fixed staffing levels for cost evaluation, and generally "ensure a level playing field." TRAX Compl. at 34-35. In requesting installation of new procurement officials, TRAX requests that the Army "appoint a new Contracting Officer, Cost/Price Analyst, S[ource ]S[election ]A[uthority], and any other M[ission ]I[nstallation ]C[ontracting ]C[ommand] personnel who are advisors or officials" for the Yuma procurement. TRAX Compl. at 34.
The parties' cross-motions for judgment on the administrative record in Jacobs have been submitted and fully briefed and were addressed at a hearing on February 9, 2017. See Pl.'s Mot. for Judgment on the Administrative Record and Mem. in Support ("Jacobs' Mot."), No. 16-1602C, ECF No. 41; Def.'s Cross-Mot.; Def.-Intervenor TRAX's Cross-Mot. for Judgment on the Administrative Record and Opp'n to Pl.'s Mot. for Judgment on the Administrative Record ("TRAX's Cross-Mot."), No. 16-1602C, ECF No. 48. Additionally, TRAX's motion for discovery, TRAX's Mot. for Limited Disc. ("TRAX's Mot. for Disc."), No. 17-88C, ECF No. 27, and the government's motion to dismiss TRAX's complaint for lack of jurisdiction pursuant to RCFC 12(b)(1), Def.'s Mot. to Dismiss and Resp. to Pl.'s Mot. for Disc. ("Def.'s Mot. to Dismiss"), No. 17-88C, ECF No. 34, have been briefed and were addressed at a hearing on February 24, 2017.
As amended, the Tucker Act provides this court with jurisdiction to "render judgment on an action 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), added by the Administrative Dispute Resolution Act, Pub. L. No. 104-320, § 12, 110 Stat. 3870, 3874 (1996); see also Systems Application & Techs., Inc. v. United States, 691 F.3d 1374, 1380-81 (Fed. Cir. 2012). The court accordingly has jurisdiction over three types of bid protests: (1) a pre-award protest, (2) a post-award protest, and (3) "any alleged violation of statute or regulation in connection with a procurement or a proposed procurement." 28 U.S.C. § 1491(b)(1); see also OTI Am., Inc. v. United States, 68 Fed. Cl. 108, 113 (2005) (describing and ruling on the parameters of 28 U.S.C. § 1491(b)).
A challenge to a procuring agency's corrective action can be characterized either as a pre-award protest, see, e.g., Ceres Gulf, Inc. v. United States, 94 Fed. Cl. 303, 315-16 (2010) (discussing cases related to corrective action protests and concluding that plaintiff's challenge to the Army's corrective action "amount[ed] to an objection to the Army's pre-award conduct") (citations omitted), or as a claim of an "alleged violation of statute or regulation in connection with a procurement or a proposed procurement," e.g., Systems Application & Techs., 691 F.3d at 1381 (noting that "section 1491(b)(1) provides a broad grant of jurisdiction because `[p]rocurement includes all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout'") (quoting Resource Conservation Grp., LLC v. United States, 597 F.3d 1238, 1244 (Fed. Cir. 2010) (in turn quoting what is now 41 U.S.C. § 111)). By whichever of those jurisdictional pathways, the court's bid protest jurisdiction includes the review of a procuring agency's decision to take corrective action. See, e.g., Chapman Law Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934, 938 (Fed. Cir. 2007) (finding that the court's "inquiry into the reasonableness of the [g]overnment's first proposed corrective action, and the court's subsequent determination that the proposed corrective action was not reasonable, were proper"); Innovative Test Asset Sols. LLC v. United States, 125 Fed. Cl. 201, 215 (2016) (finding that the court had jurisdiction to review the reasonableness of the procuring agency's corrective action) (citations omitted); Centech Grp., Inc. v. United States, 79 Fed. Cl. 562, 574 (2007) ("The Court of Federal Claims possesses jurisdiction to determine if a corrective action taken by an agency in response to a bid protest was reasonable under the circumstances.") (citing Chapman, 490 F.3d at 938), aff'd, 554 F.3d 1029 (Fed. Cir. 2009). The court has jurisdiction over corrective action protests "even when such action is not fully implemented." Systems Application & Techs., 691 F.3d at 1381 (relying for jurisdiction on the so-called "third prong" of Section 1491(b), quoted supra). Additionally, whether the protester raising the challenge was the former contract awardee is not "material to the question of jurisdiction." Id.
Here, Jacobs challenges the Army's decision to take corrective action and the scope of that corrective action, alleging that both were arbitrary and capricious. See Jacobs' Mot. at 15-26. These claims directly address the Army's most recent corrective action announcement from November 2016, see AR 113-8929; AR 114-8933, and thus fall within the court's jurisdiction. The government does not dispute the court's jurisdiction over Jacobs' claims. See generally Def.'s Cross-Mot. The government does, however, contend that the court lacks jurisdiction over TRAX's claim because TRAX is "not objecting to a solicitation, a proposed award, an award of a contract, or an alleged violation of a statute or regulation." Def.'s Mot. to Dismiss at 4-5. In making this argument, the government incorrectly interprets TRAX's complaint as challenging either the Army's previous third award to Jacobs or the Army's future fourth award for the Yuma contract. See id. That is not what TRAX is arguing. Rather than protesting a past or future award, TRAX specifically challenges the "the nature and scope of the Army's corrective action." TRAX's Opp'n to Def.'s Mot. to Dismiss the TRAX Compl. and Reply in Support of TRAX's Mot. for Limited Disc. ("TRAX's Opp'n and Reply") at 7, No. 17-88C, ECF No. 36. Because the Army's procurement officials are allegedly biased against TRAX or in favor of Jacobs, TRAX alleges that the Army's most recent corrective action is not sufficiently broad and requests that the court take further steps to ensure a fair competition. See id.; TRAX Compl. ¶ 6. Thus, while Jacobs argues that the Army's corrective action announcement was too broad and TRAX asserts that it was not broad enough, both Jacobs and TRAX bring claims directed to that corrective action. The court therefore has jurisdiction over TRAX's claim as well.
The court emphasizes that the third prong of this court's bid protest jurisdiction provides jurisdiction over "any alleged violation of statute or regulation in connection with a procurement or a proposed procurement." See 28 U.S.C. § 1491(b)(1). The Federal Circuit has stated that this provision is "very sweeping in scope," explaining that "[a]s long as a statute [or regulation] has a connection to a procurement proposal, an alleged violation suffices to supply jurisdiction." RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999). Here, TRAX alleges that the Army's conduct demonstrates bias and is in violation of Federal Acquisition Regulations, FAR §§ 3.101-1 and 1.602-2(b). See TRAX's Opp'n and Reply at 8-9; see also FAR § 3.101-1 ("Government business shall be conducted in a manner above reproach and, except as authorized by statute or regulation, with complete impartiality and with preferential treatment for none."); FAR § 1.602-2(b) (requiring contracting officers to "[e]nsure that contractors receive impartial, fair, and equitable treatment"). According to TRAX, these regulations are connected to the procurement at issue because the Army's alleged bias has existed throughout the award process for the Yuma contract and has rendered the scope of the Army's present corrective action unreasonably narrow. See TRAX's Opp'n and Reply at 7-9. TRAX has thus sufficiently alleged that the Army violated applicable regulations in connection with the Yuma procurement.
To have standing in a bid protest, the party bringing suit must be an "interested party." See 28 U.S.C. § 1491(b)(1); Systems Application & Techs., 691 F.3d at 1382. A protester will be an interested party if it can show that "(1) it was an actual or prospective bidder or offeror, and (2) it had a direct economic interest in the procurement or proposed procurement." Distributed Sols., Inc. v. United States, 539 F.3d 1340, 1344 (Fed. Cir. 2008) (citing Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006)). To prove direct economic interest in a pre-award protest, the protester must demonstrate "a non-trivial competitive injury which can be addressed by judicial relief." Systems Application & Techs., 691 F.3d at 1382 (quoting Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1362 (Fed. Cir. 2009)).
The government does not dispute Jacobs' standing, see generally Def.'s Cross-Mot., although TRAX does, see TRAX's Cross-Mot. at 19. Here, both Jacobs and TRAX were offerors in the government's most recent procurement for the Yuma contract. AR 104-8708. As the former awardee of the contract, Jacobs has a direct economic interest in the Army's decision to take corrective action and make a new source selection decision. Jacobs has suffered a "non-trivial competitive injury" because it will have to compete for, and await, a new award decision from the Army after reevaluation of proposals, which may or may not result in an award to Jacobs. See Sheridan Corp. v. United States, 95 Fed. Cl. 141, 149 (2010) (finding that "it is difficult to imagine a party that is more economically interested than [plaintiff] who, having been selected and awarded the contract, would have to wait to receive the [g]overnment's new decision following the resolicitation of proposals").
Insofar as standing is concerned, TRAX's position has some parallels to that of Jacobs. TRAX was next in line to receive the contract and received [***] for the non-cost factors. See AR 103-8700. TRAX argues that Jacobs' lower cost proposal, as well as Jacobs' third award, can be attributed to Jacobs' staffing baseline, which the Army allegedly should not have allowed. See TRAX Mot. for Disc. at 10 & n.7. TRAX has thus sufficiently alleged a "non-trivial competitive injury" and it has a direct economic interest in the Army's corrective action. See Delaney Constr., 56 Fed. Cl. at 474 ("With respect to the proposed corrective action, plaintiff is a prospective offeror whose direct economic interest would be affected by the new award of the contract which would occur on the basis of the corrective action at issue.") (citing IMS Servs., Inc. v. United States, 32 Fed. Cl. 388 (1994)). In sum, both Jacobs and TRAX have standing to pursue their protests.
The government next argues that TRAX's claim is not ripe for review. See Def.'s Mot. to Dismiss at 6-10. The purpose of the ripeness doctrine is to "prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference." Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). An unripe claim is dismissed without prejudice. Pernix Grp., Inc. v. United States, 121 Fed. Cl. 592, 599 (2015) (citing Shinnecock Indian Nation v. United States, 782 F.3d 1345, 1350 (Fed. Cir. 2015)). The court determines whether an action is ripe by evaluating (1) "the fitness of the issues for judicial decision," and (2) "the hardship to the parties of withholding court consideration." Caraco Pharm. Labs., Ltd. v. Forest Labs., Inc., 527 F.3d 1278, 1294-95 (Fed. Cir. 2008) (citing Abbott Labs., 387 U.S. at 149).
First, with respect to fitness for judicial review, the court must determine "whether the challenged conduct constitutes a final agency action." Systems Application & Techs., 691 F.3d at 1384 (citations omitted). To be considered final, the agency action must: (1) "mark the `consummation' of the agency's decisionmaking process-it must not be of a merely tentative or interlocutory nature," and (2) "be one by which `rights or obligations have been determined,' or from which `legal consequences will flow.'" Id. (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). Second, with respect to hardship, the court must consider whether withholding court consideration would have an "immediate and substantial impact" on the plaintiff. Caraco Pharm. Labs., 527 F.3d at 1295 (quoting Gardner v. Toilet Goods Ass'n, 387 U.S. 167, 171 (1967)). The mere possibility of harm is insufficient. See Pernix Grp., 121 Fed. Cl. at 599 ("Abstract, avoidable or speculative harm is not enough to satisfy the hardship prong.") (citing Texas v. United States, 523 U.S. 296, 301-02 (1998)). Nonetheless, the hardship prong requires a lesser showing compared to the showing required for obtaining injunctive relief, where a plaintiff must demonstrate irreparable harm. See Systems Application & Techs., 691 F.3d at 1385.
Regarding fitness for judicial review, the government asserts that TRAX's claim is not ripe because the Army's "decision to take corrective action is not a final decision." Def.'s Mot. to Dismiss at 8. The government states that "[u]ntil the agency takes final action, e.g., makes an award under the reprocurement or cancels the reprocurement, the agency has not consummated its decision-making process." Id. Before that occurs, the Army could cancel the procurement or change the corrective action. Id. Further, according to the government, TRAX's rights and obligations will only be determined by the Army's final award decision. Id. The government's argument is not consistent with Federal Circuit precedent. In Systems Application & Techs., the government presented an argument to the Federal Circuit that is similar to its argument before this court:
691 F.3d at 1384 (internal citations and quotation marks omitted). The court of appeals rejected the government's argument because, among other reasons, "[t]he Army memorialized its decision to take corrective action in a letter to the GAO and the parties, stating: the Army has determined that it is in its best interest to take corrective action." Id. (internal citations and quotation marks omitted). The Army's corrective action announcement also resulted in "irretrievable legal consequences," including GAO's dismissal of an award protest regarding the procurement. Id. The Army's decision to take corrective action was thus considered final. Id. at 1385.
Here, similarly, the Army announced its decision to take corrective action, stating that it would be reevaluating the offerors' final revised proposals and making a new source selection decision. AR 113-8929. The Army accompanied that decision with a memorandum explaining the basis for the action. AR Tab 114. Such a decision was final and had direct legal consequences, including the rescission of Jacobs' award and GAO's dismissal of TRAX's protest. See AR Tab 115. The fact that the Army could change course in the future by, for example, amending or canceling the solicitation, does not render TRAX's claim unripe. See Jacobs Tech. Inc. v. United States, 100 Fed. Cl. 179, 182 (2011) ("The mere fact that an agency may always amend the [RFP] cannot render pre-award bid protests unripe."). TRAX is not protesting the fourth award that the Army has not yet provided, but is instead challenging the scope of the Army's present corrective action. See Sheridan, 95 Fed. Cl. at 150 (holding that plaintiff's corrective action protest was fit for judicial review because plaintiff was "not challenging the results of the corrective action," but was rather "challenging the implementation of the corrective action itself"). The Army's decision to take corrective action and the scope of that corrective action are final decisions that are fit for judicial review.
Additionally, TRAX has demonstrated sufficient hardship. The Federal Circuit has held "that a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection subsequently in a bid protest action in the Court of Federal Claims." Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007); see also CRAssociates, Inc. v. United States, 102 Fed. Cl. 698, 713 (2011) ("[B]y holding its fire until after the contract was awarded to its competitor, [plaintiff] waived its opportunity to raise issues concerning [the awardee's] prior performance of the enjoined contract."), aff'd, 475 Fed. Appx. 341 (Fed. Cir. 2012). Thus, if the court withholds review of TRAX's bias claim regarding the Army's corrective action, TRAX's claim will be rendered untimely after the fourth award is made and there would be no judicial review of TRAX's present claim. While the government correctly notes that TRAX could ultimately receive the fourth award, Def.'s Mot. to Dismiss at 8-9, this court has previously found that the potential waiver of a protester's claim presents sufficient hardship to warrant judicial review, see Centech Grp., 78 Fed. Cl. at 506 (finding hardship where plaintiff challenged agency corrective action because "refusing to address [p]laintiff's pre[-]award protest . . . would be tantamount to denying judicial review"); Sheridan Corp., 95 Fed. Cl. at 150 (holding that plaintiff's corrective action protest claim was ripe because, among other reasons, plaintiff could not later raise such a claim).
The government nonetheless responds that TRAX would in actuality have an opportunity to protest the fourth award decision if it wishes to do so, see Def.'s Mot. to Dismiss at 9, specifically relying on Square One Armoring Serv., Inc. v. United States, 123 Fed. Cl. 309 (2015). There, the court stated:
Id. at 329-30 (internal citations and quotations marks omitted). The government's reliance on Square One, however, is misplaced. The claims in Square One were directed to the execution of, rather than the scope, of the corrective action. See id. at 329 ("[A]ny allegation that [government] officials will not act in good faith in executing the corrective action, which includes re-procuring the requirement, raises purely hypothetical arguments. . . .") (emphasis added) (internal quotation marks and citations omitted); id. at 330 ("`[C]hallenges to the outcome of th[e] [corrective] action at this time are . . . not fit for judicial review.'") (emphasis added) (quoting Eskridge Research Corp. v. United States, 92 Fed. Cl. 88, 95 (2010)). In contrast, TRAX is not challenging the Army's execution of the corrective action or the fourth Yuma contract not yet awarded. Instead, TRAX is challenging the scope of the Army's corrective action itself, arguing that it is not broad enough to address the Army's alleged bias. See TRAX's Opp'n and Reply at 7; TRAX Compl. ¶ 6. The announced scope of the corrective action is a final decision by the Army that is fit for judicial review, and withholding such review would otherwise prevent TRAX from raising the claim after the fourth award. TRAX's claim is therefore ripe for review.
Jacobs' claims, which are directed to the Army's decision to take corrective action and the scope of the present corrective action, see Jacobs' Mot. at 15-26, are ripe for the same reasons. TRAX responds in its cross-motion for judgment on the administrative record that Jacobs' claims are not ripe for judicial review "because the Army has not finalized a decision about the precise scope of the corrective action that it intends to take." TRAX's Cross-Mot. at 20-21. TRAX's contention is nearly identical to the argument presented by the government in its motion to dismiss TRAX's complaint, which this court has rejected, as discussed supra. Jacobs' challenges to both the decision to take corrective action and the current scope of that action are thus ripe for review.
One aspect of Jacobs' challenge and TRAX's response deserves further attention, however. In asserting that the corrective action is overly broad, Jacobs also relies on the possibility that the Army could reopen discussions and resolicit final proposals. See Jacobs' Mot. at 25-26; AR 114-8933 ("After the Army reevaluates proposals in accordance with the [s]olicitation, as amended, it will determine whether it will exercise its discretion to re-open discussions."). This argument is not ripe. The corrective action only contemplates reevaluation at this time. AR 114-8933. The Army's later execution of the correction action, resulting in a possible resolicitation, is a future event that is not ripe for review. See Square One, 123 Fed. Cl. at 329-30. The court has jurisdiction over both of Jacobs' claims, but only to the extent that such claims challenge the Army's currently announced corrective action.
Finally, the government contends that TRAX's "challenge to the award of the contract is moot because the agency is cancelling the award and will reevaluate proposals." Def.'s Mot. to Dismiss at 6. This argument by the government wrongly assumes that TRAX is challenging the Army's previous contract award, rather than the corrective action, and accordingly relies on precedents where corrective action mooted a protester's challenge to the award itself. See SOS Int'l LLC v. United States, 127 Fed. Cl. 576, 589 (2016) ("[A]ny challenge to the original evaluation of proposals for the [contract] has been mooted by the Army's decision to take corrective action.") (citation omitted); Dellew Corp. v. United States, 124 Fed. Cl. 429, 430-32 (2015) (finding plaintiff's challenge to a contract award moot due to the Army's subsequent corrective action, but nonetheless addressing defendant-intervenor's separate challenge to the scope of the corrective action on the merits); Sigmatech, Inc. v. United States, 122 Fed. Cl. 674, 675-76 (2015) (holding that plaintiff's challenge to the contract award was rendered moot by the government's subsequent corrective action). The cases cited by the government are not relevant to TRAX's dispute because, as discussed supra, TRAX is specifically challenging the scope of the corrective action by alleging that such action is not broad enough to resolve the alleged bias on the part of the procurement officials. See TRAX's Opp'n and Reply at 7; TRAX Compl. ¶ 6. As the court previously explained:
Centech Grp., 78 Fed. Cl. at 504. Although TRAX addresses the Army's evaluation process over the course of the three previous Yuma contract awards, see, e.g., TRAX Compl. ¶¶ 10-63, TRAX does so in an attempt to show that the procurement officials' pattern of past conduct creates a present need for a broader corrective action. TRAX's bias claim is directed to the Army's corrective action, and is therefore not moot.
The court's review of an agency's procurement decision is governed by the Administrative Procedure Act ("APA"), specifically 5 U.S.C. § 706. See 28 U.S.C. § 1491(b)(4) ("In any action under this subsection, the courts shall review the agency's decision pursuant to the standards set forth in section 706 of title 5."). Under this section of the APA, the court may set aside an agency decision if the court finds the decision to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The arbitrary and capricious standard is "highly deferential." See Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000). Accordingly, the court may not "substitute its judgment for that of the agency." Keeton Corrs., Inc. v. United States, 59 Fed. Cl. 753, 755 (2004) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated in part by Califano v. Sanders, 430 U.S. 99, 105 (1977)), recons. denied, 60 Fed. Cl. 251 (2004).
Notwithstanding this deferential standard, the court may set aside a procurement action if "(1) the procurement official's decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure." Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001) (citations omitted). The "agency must examine the relevant data and articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). An agency's decision lacks a rational basis, and is therefore arbitrary and capricious, when the agency "entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or [the decision] is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Alabama Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting State Farm, 463 U.S. at 43).
In the context of corrective action, "[a] contracting agency has broad discretion whether to pursue corrective action during the course of a procurement." Wildflower Int'l, Ltd. v. United States, 105 Fed. Cl. 362, 385-86 (2012) (quoting Systems Application & Techs., Inc., v. United States, 100 Fed. Cl. 687, 716 (2011), aff'd, 691 F.3d 1374 (Fed. Cir. 2012); Jacobs Tech. Inc. v. United States, 100 Fed. Cl. 186, 190 (2011)). The court will uphold an agency's decision to take corrective action "if it is rational, reasonable, and coherent and reflects due consideration of all relevant factors." Systems Application & Techs., 100 Fed. Cl. at 716. If the decision was reasonable, the court must also assess "whether the corrective action itself was `reasonable under the circumstances.'" Wildflower Int'l, 105 Fed. Cl. at 389 (quoting Sheridan, 95 Fed. Cl. at 151 (in turn quoting DGS Contract Serv., Inc. v. United States, 43 Fed. Cl. 227, 238 (1999))).
Reviewing courts have not been fully consistent in applying this reasonableness standard. Compare Sheridan, 95 Fed. Cl. at 151 ("To be reasonable, the agency's corrective action must be rationally related to the defect to be corrected."), with Sierra Nevada Corp. v. United States, 107 Fed. Cl. 735, 751 (2012) (applying a "reasonable in-the-circumstances test" and declining to use the "targeted-action test" from Sheridan because the corrective action case before the court was "more nuanced").
The court's review of a protest brought against a procuring agency is generally "based on the record the agency presents to the reviewing court." Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379-80 (Fed. Cir. 2009) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985)). "The purpose of limiting review to the record actually before the agency is to guard against courts using new evidence to convert the arbitrary and capricious standard into effectively de novo review." Id. at 1380 (quoting Murakami v. United States, 46 Fed. Cl. 731, 735 (2000), aff'd, 398 F.3d 1342 (Fed. Cir. 2005)). Nonetheless, to ensure effective review, the record before the court must provide "the information upon which the agency relied when it made its decision as well as any documentation revealing the agency's decision-making process." Pitney Bowes Gov't Sols., Inc. v. United States, 93 Fed. Cl. 327, 332 (2010) (citing Citizens to Preserve Overton Park, 401 U.S. at 420). Accordingly, the administrative record should be supplemented only when "the omission of extra-record evidence precludes effective judicial review." Axiom Res. Mgmt., 564 F.3d at 1380 (quoting Murakami, 46 Fed. Cl. at 735).
In the context of a bid protest, the court may permit discovery when "there has been a strong showing of bad faith or improper behavior," such that "the administrative record cannot be trusted" absent discovery. Alabama Aircraft Indus., Inc.-Birmingham v. United States, 82 Fed. Cl. 757, 766 (2008) (internal quotation marks and citations omitted). "[A]llegations of bad faith must be based on hard facts," especially when the procuring agency has given a reasonable explanation for its decision. Madison Servs., Inc. v. United States, 92 Fed. Cl. 120, 130 (2010) (quoting International Res. Recovery, Inc. v. United States, 61 Fed. Cl. 38, 43 (2004)) (internal quotation marks omitted). The allegations cannot "rest merely on counsel's argument, suspicion, or conjecture." Pitney Bowes, 93 Fed. Cl. at 332 (citing Madison Servs., 92 Fed. Cl. at 130-31). Because agency decisions are entitled to a presumption of regularity, discovery will not be permitted "unless that presumption has been rebutted by record evidence suggesting that the agency decision is arbitrary and capricious." Alabama Aircraft Indus., 82 Fed. Cl. at 773 (quoting Impresa Construzioni, 238 F.3d at 1338) (internal quotation marks omitted). Ultimately, to supplement the record, the protester must "1) make a threshold showing of either a motivation for the [g]overnment employee to have acted in bad faith or of conduct that is hard to explain absent bad faith, and 2) persuade the [c]ourt that discovery could lead to evidence that would provide the level of proof sufficient to overcome the presumption of regularity and good faith." L-3 Commc'ns Integrated Sys., L.P. v. United States, 91 Fed. Cl. 347, 355 (2010) (citing Beta Analytics Int'l, Inc. v. United States, 61 Fed. Cl. 223, 226 (2004)), amended in part on recons., 98 Fed. Cl. 45 (2011).
To state a claim upon which relief can granted under RCFC 12(b)(6), a complaint must "contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The facts alleged must sufficiently "raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Kam-Almaz v. United States, 682 F.3d 1364, 1367-68 (Fed. Cir. 2012) (quoting Twombly, 550 U.S. at 555). The court must accept all factual allegations in the complaint as true and draw "all reasonable inferences in favor of the non-movant," Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed. Cir. 2001) (internal citations omitted), but it need not accept legal conclusions, Rack Room Shoes v. United States, 718 F.3d 1370, 1376 (Fed. Cir. 2013) (citing Iqbal, 556 U.S. at 678).
Jacobs specifically focuses on the Army's consideration of Jacobs' revised oral presentation slides in challenging the Army's decision to take corrective action and the scope of that corrective action. See Jacobs' Mot. at 15-23, 24-26.
In deciding to take corrective action, the Army found that an error occurred when it considered Jacobs' revised oral presentation slides during the third evaluation process. Under the terms of the solicitation, "[c]ontent on [oral presentation] slides submitted, but not briefed in the [oral] presentation, [would] not be considered in the evaluation." AR 23-2622. The Army restated this requirement before the submission of proposals for the third award, noting that if an offeror revised its oral presentation slides, "an oral presentation briefing [would be] required to have the slides considered." AR 77b-6272. If necessary, that oral presentation was to take place on July 21, 2016. AR 77c-6275. Jacobs submitted its proposal on July 20, 2016 for the third award without making a new oral presentation during the third evaluation process, see AR 78-6279; AR 114-8933, but then changed many of its oral presentation slides in its revised proposal submitted on September 23, 2016, see AR 118-9939 to -40. The Army cited Jacobs' submission of revised oral presentation slides without a new presentation as one of the Army's bases for corrective action, explaining that "the Army relied upon these un-briefed slide revisions" when evaluating Jacobs' mission capability approach, which was in violation of the solicitation. AR 114-8933.
Jacobs acknowledges that it erred by submitting revised slides, which were considered by the Army, but not then making a new oral presentation. Hr'g Tr. 14:14-19 (Feb. 9, 2017), No. 16-1602C.
Jacobs points to the general precept that to prevail in a bid protest, "[a] protester must show not simply a significant error in the procurement process, but also that the error was prejudicial." Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996) (citation omitted); see also Jacobs' Mot. at 21. Under this maxim, a bid protester must show that an alleged error by the procuring agency prejudiced the protester; the rule does not, on the other hand, stand for the proposition that an agency can rationally act in a procurement to institute corrective action only when there is an error coupled with a showing of prejudice to an offeror. See MSC Indus. Direct Co. v. United States, 126 Fed. Cl. 525, 533 n.5 (2016) ("The considerations brought to bear when it is the agency's own procurement needs that prompt corrective action are fundamentally different from a situation in which a competitor alleges that corrective action is warranted by potential prejudice to it."). Jacobs seeks to place a burden of demonstrating prejudice on the agency, asserting that "corrective action must be based on a prejudicial error." Jacobs' Mot. at 21. However, Jacobs' attempt to impose a prejudice requirement on the Army's decision to take corrective action is unsupported by any precedent in the Federal Circuit or this court. Instead, it is inconsistent with prior case law addressing corrective action. See Wildflower Int'l, 105 Fed. Cl. at 389 n.18 (addressing a corrective action protest and noting that "whether [an offeror] was specifically prejudiced by the ambiguity [in the solicitation] is not dispositive"); Jacobs, 100 Fed. Cl. at 197 ("[E]ven if GAO denied the protest (e.g., for lack of prejudice), the agency could still decide to take corrective action.").
Jacobs supports its proffered "prejudicial error" rule by relying on a GAO decision, Security Consultants Grp., Inc., B-293344.2, 2004 WL 691223 (Comp. Gen. Mar. 19, 2004), recons. granted in part and denied in part, B-293344.6, 2004 WL 2480957 (Comp. Gen. Nov. 4, 2004). In that decision, GAO stated:
Security Consultants Grp., 2004 WL 691223, at *2 (citations omitted). Jacobs' reliance on Security Consultants is unavailing. The basis for the decision in Security Consultants is distinguishable from the protest before this court. In Security Consultants, GAO determined that if an error in the solicitation did not prejudice the offerors and prices had been disclosed, the agency's reopening of the competition would not be warranted. 2004 WL 691223, at *2. Here, however, the Army is currently only reevaluating proposals and has not reopened discussions. See AR 114-8933. Accordingly, GAO's concern that price disclosure would "compromis[e] the offerors' competitive positions," 2004 WL 691223, at *2, is not applicable in this dispute.
Even if the Army had reopened the competition, the commentary in Security Consultants only applies when prices had been disclosed and there was no impropriety in the evaluation and award process, or when the impropriety occurred but did not prejudice the offerors. 2004 WL 691223, at *2. Here, an error occurred when the Army considered Jacobs' revised slides. AR 114-8933. And to the extent that prejudice is relevant, the court rejects Jacobs' assertion that no prejudice occurred from the submission of Jacobs' revised, but un-briefed, slides. As the Army explained, Jacobs' revisions were "numerous and substantive," and "Jacobs' failure to provide a new oral presentation deprived the Army from asking questions during the clarification session." AR 114-8933. Jacobs' revised slides included changes to its organization chart, contracting team, key personnel, and cost reduction metric, among other changes. See AR 118-9939 to -40. These changes specifically related to the mission capability requirements set forth in the RFP, see, e.g., AR 3-189 (requiring offerors to address "the expertise of each proposed team member and/or subcontractor" under the technical risk sub-factor of mission capability), and thus substantively affected Jacobs' mission capability approach.
The scope of the corrective action designated by the Army focuses on a reevaluation of Jacobs' and TRAX's proposals and a new source selection decision. AR 114-8933. Jacobs claims that this corrective action is flawed because it is "not targeted to any procurement defect" identified by the Army in its memorandum explaining the decision to take corrective action, Jacobs' Mot. at 24-25, but that contention ignores the Army's explanation that it had improperly relied on Jacobs' revised oral presentation slides, which were submitted but never presented, when evaluating Jacobs' proposal, AR 114-8933. Contrary to Jacobs' position, a reevaluation specifically addresses this error because a subsequent evaluation in accord with the terms of the solicitation will ensure that Jacobs and TRAX are evaluated based upon oral presentation slides that have been briefed to the Army at an oral presentation. The corrective action is rationally related to the defect that the Army identified and is thus not overly broad. Notably, the Army's proposed reevaluation is narrower than an alternative course of action, resolicitation of proposals. Jacobs' primary concern with the scope of the corrective action appears to be the possibility of the Army pursuing this alternative course and reopening discussions, see Jacobs' Mot. at 25-26; AR 114-8933, but as addressed supra, that concern is not ripe for review because the Army has not taken such action.
In sum, the Army identified an error in the procurement after it considered Jacobs' revised oral presentation slides without hearing a new oral presentation, and it sufficiently explained why corrective action was necessary. The Army's corrective action also is reasonably tailored to address that error. Thus, the Army's decision to take corrective action and the scope of that corrective action were reasonable under the circumstances.
In presenting its motion for discovery, TRAX claims that discovery is warranted "to further develop the record" regarding the Army's alleged bias against TRAX or in favor of Jacobs. TRAX's Mot. for Disc. at 13. TRAX seeks to depose five specific Army personnel "who have been directly involved in the evaluations and award decisions . . . and will likely be involved in continuing evaluations in this procurement." Id. at 13-15. TRAX also requests that the Army produce specific documents and materials that, according to TRAX, are related to the staffing baseline for this procurement and the Army's alleged bias. Id. at 15-16.
A bid protester seeking discovery must "1) make a threshold showing of either a motivation for the [g]overnment employee to have acted in bad faith or of conduct that is hard to explain absent bad faith, and 2) persuade the [c]ourt that discovery could lead to evidence that would provide the level of proof sufficient to overcome the presumption of regularity and good faith." L-3 Commc'ns, 91 Fed. Cl. at 355 (citation omitted); see supra, at 21-22. The protester must assert a "reasonable factual predicate" for its allegation of bias or bad faith, a lower burden of proof than that for such an allegation on the merits, which requires clear and convincing evidence. See L-3 Commc'ns, 91 Fed. Cl. at 355. Here, TRAX's claim focuses solely on Army conduct that is allegedly "hard to explain absent bad faith." TRAX's Opp'n and Reply at 10.
TRAX argues that it has made a threshold showing of conduct that is hard to explain absent bad faith, stating that the Army has "knowingly and deliberately ignored" problems related to baseline staffing during the three awards in this procurement, "each time to the benefit of Jacobs." TRAX's Mot. for Disc. at 12. Specifically, in the first evaluation, procurement officials reported a "[p]roblem" regarding baseline staffing data and noted that Jacobs had used a lower starting point for its baseline number of total labor hours compared to TRAX, see AR Tab 124, but the SSA determined that Jacobs had offered the best value, AR 30-3206. In the second evaluation, procurement officials noted a similar problem where Jacobs had a lower starting point for baseline labor hours compared to TRAX, see AR Tab 130, and the SSA again issued a decision in favor of Jacobs, AR 60-5876. Third, after the SSA found for Jacobs in the third evaluation, AR 104-8720, the Army's corrective action explained that TRAX's proposal had "deviated from the baseline in the RFP instruction," AR 114-8933. TRAX asserts that the Army had not previously communicated with TRAX regarding this issue or made any cost adjustment during the third evaluation process. TRAX's Opp'n and Reply at 13.
TRAX, however, has failed to make a threshold showing of conduct by the Army that is hard to explain absent bad faith. Although TRAX correctly notes that problems have arisen in the three award evaluations related to baseline staffing, errors in an evaluation process do not alone suffice to demonstrate bad faith or permit discovery. See Information Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1323 n.2 (Fed. Cir. 2003) (finding that "the court did not err in refusing discovery on alleged bias" because the protester "merely reiterated its contentions that the Air Force erred in evaluating the proposals"); Four Points by Sheraton v. United States, 63 Fed. Cl. 341, 344-45 (2005) (holding that the protester's disagreement with the award evaluation did not indicate a motive for bias or conduct that was difficult to explain absent bias). Similarly, the fact that Jacobs' proposals were evaluated based upon the same staffing starting point but with different adaptations does not show bad faith on the part of Army. See Beta Analytics, 61 Fed. Cl. at 226 (holding that the protester failed to make the threshold showing necessary for discovery when it argued that the "scoring of its proposal" by one evaluator had differed from the scoring of the proposal by other evaluators, and also noting that "[i]nnuendo or suspicion is not enough to demonstrate bad faith") (citations omitted).
TRAX acknowledges that it "may have been understandable" for the Army to initially commit an error regarding the staffing baseline, but it argues that the occurrence of baseline-related errors over the course of three evaluations justifies discovery. TRAX's Mot. for Disc. at 12-13; see also TRAX's Opp'n and Reply at 13 (claiming the Army has engaged in a "pattern" of misconduct). TRAX broadly alleges that various procurement officials, including the Contracting Officer, Cost/Price Analyst, SSA, and other personnel, have repeatedly failed to enforce a common staffing baseline to the benefit of Jacobs, see TRAX Compl. ¶¶ 4-5, but the critical officials for the Yuma contract have changed over the course of this procurement. For example, the SSA was Colonel Timothy A. Starostanko for the first and second awards, AR 30-3217; 60-5899, but was then Patrick B. Hogston for the third award, AR 104-8720. The chair of the Source Selection Evaluation Board also changed from Christopher J. Johnson during the first two awards, AR 29-3116; AR 58-5823, to Jeffrey B. Tatar in the third award, AR 87-8475. Further, the Contracting Officer was R. Colette Carrizales for the first award, AR 29-3116, and Michael K. McDaniel for the second and third awards, AR 39-3389; AR 106-8739, and is now presently Christopher Chapple, AR 114-8934. Given these changes in the responsible officials and the lack of evidence of misconduct, drawing an inference of bad faith is problematic. Rather, the errors appear to simply reflect the difficulties the Army has experienced in attempting to set a template for baseline staffing. Such difficulties stem, at least in part, from the nature of the Yuma testing facility, which has an uneven workflow and staffing needs that are hard to predict. See, e.g., AR 3-97 (stating that the Yuma facility requires an "ever-changing work effort" where the demands "change[] constantly" and contractors must be "flexible and adaptable"); AR 5b-457 (explaining that the Army could not provide "forecasted" information regarding full-time equivalents needed beyond the base period of the contract).
TRAX's reliance on prior case law where discovery was permitted in a bid protest is also unavailing. For example, in Pitney Bowes, the protester alleged bias in favor of another offeror due to a personal relationship between a member of the agency's evaluation board and the vice president of that offeror's subcontractor. 93 Fed. Cl. at 330. The court found that the protester met the threshold showing to warrant discovery after the protester had submitted affidavits regarding improper pre-procurement communications from the contracting officer's technical representative. Id. at 330, 333-34. Similarly, in International Resource Recovery, the court allowed discovery when the protester argued that the contracting officer knowingly failed to disclose the reason for the termination of the protester's previous contract. 61 Fed. Cl. at 40, 43. Here, in contrast, the procurement officials involved have not engaged in improper pre-procurement communications or intentionally or knowingly failed to disclose any information related to Jacobs' or TRAX's proposals. The Army has been well aware of the issue related to the staffing baseline, and has attempted to deal with it through amendments to the solicitation and ENs. For example, the Army acknowledged the baseline problem during the first evaluation process, but also noted that Jacobs proposed [***] than TRAX and would have proposed [***]. AR 124-13127, -13133. And in the second round of evaluations, the Army made [***] to Jacobs' costs because Jacobs' [***]. See AR 59-5871; AR 60-5883 to -84. The Army's continued struggles with this staffing baseline are thus not an indication of bad faith or bias, but rather reflect the difficult nature of estimating future staffing needs at the Yuma facility, and Jacobs' and TRAX's different approaches to baseline staffing in their proposals.
Under these circumstances, TRAX has not made a threshold showing of conduct that is hard to explain absent bad faith. TRAX's request for discovery is therefore denied. Further, because the burden of proof for an allegation of bad faith in a discovery request is lower than the clear and convincing standard applicable to a bad faith allegation on the merits, see L-3 Commc'ns, 91 Fed. Cl. at 355, TRAX has also failed to present a viable bias claim on the merits. Accordingly, TRAX's protest shall be dismissed for failure to state a claim upon which relief can be granted pursuant to RCFC 12(b)(6).
For the reasons stated, Jacobs' motion for judgment on the administrative record is DENIED, and the government's and TRAX's cross-motions for judgment on the administrative record are GRANTED in Jacobs, No. 16-1602C.
No costs.
It is so
The record is divided into tabs and paginated sequentially. In citing to the administrative record, the court will first designate the tab, followed by the page number. For example, AR 3a-210 refers to tab 3a, page 210 of the administrative record.
Sierra Nevada, 107 Fed. Cl. at 751.
TRAX raises other grounds to justify the Army's corrective action, including issues related to an alleged organizational conflict of interest on Jacobs' part, Jacobs' staffing plan, and the Army's cost-technical trade-off analysis. See TRAX's Cross-Mot. at 30-39. TRAX's additional proffered bases were not adopted by the Army and thus will not be considered by the court.
